On October 6, the House Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection held a hearing to examine the effectiveness of child product safety standards.
In his opening remarks, Chair Cliff Stearns (R-FL) stated, “The U.S. toy industry is a large business with sales of $20.7 billion in 2003. In that year, the Consumer Product Safety Commission (CPSC) recalled 96 toys and children’s products involving almost 14 million units. Sadly, there were 11 toy-related deaths in 2003 and approximately 206,500 injuries.” He explained that the purpose of the hearing was to find out what the CPSC is doing to protect children from products already on the market, and to examine the effectiveness of product recalls.
Ranking Member Jan Schakowsky (D-IL) explained that current law prohibits the CPSC from establishing mandatory standards, stating, “The few standards that are in place are set by the very industries looking to make profits and they are also expected to police themselves. Let me stress what that means: although there may be voluntary standards in place, there are no requirements that all potential hazards are addressed by those standards, no consequences for the manufacturer if the standards are not met, and no requirements for products to be tested to see if the standards are met. This is true even for baby carriers, cradles, play pens, high chairs and other items bought specifically for use by infants and children.” Rep. Schakowsky announced her sponsorship of the Infant and Toddler Durable Product Safety Act (H.R. 2911). The bill would require the CPSC to promulgate a consumer product safety standard for all products intended for use by infants or toddlers.
Addressing concerns regarding voluntary standards set by child product manufacturers, CPSC Chair Hal Stratton explained that current law requires the commission to “defer to voluntary safety standards whenever compliance with a voluntary standard eliminates or adequately reduces the risk of injury addressed and whenever it is likely that there will be substantial compliance with that voluntary standard.” He noted that when the commission chooses to proceed with a mandatory standard, a three-step rulemaking process, which includes two public comment periods, must be undertaken.
In response to questions concerning the effectiveness of product recalls, Mr. Stratton said the CPSC Office of Compliance seeks voluntary remedial action from the manufacturer whenever possible, adding, “If staff is unable to reach such a resolution, litigation may be necessary. The Commission may institute an administrative proceeding to require a manufacturer, distributor, or retailer to recall a banned product or a defective product that presents a substantial product hazard. If after a formal hearing before an administrative law judge and any appeal to the Commission, the Commission determines that a product presents a substantial hazard warranting a recall, it can order the firm to give public notice of the hazard and order the firm to repair or replace the product or refund the purchase price of the product less a reasonable allowance for use at the election of the firm.” He noted that the CPSC has conducted 356 recalls in 2004, a 27 increase from the previous year. In addition, the CPSC assessed $4.2 million in civil penalties to manufacturers that violated federal safety standards. Mr. Stratton said that when a recall has been ordered, the CPSC Office of Information and Public Affairs sends out a joint press release with the manufacturer, and in some instances, uses video news releases, point of purchase posters, paid advertisements, and notification to pediatricians and child care providers to provide the information to parents. He also noted that the CPSC in conjunction with five other federal agencies has launched a new website that provides “streamlined, one-stop service in alerting consumers to unsafe, hazardous or defective products.”
The subcommittee heard testimony from Lisa Lipin whose son, Andrew, was injured by the Yo-Yo Water Ball. She explained that when she contacted the CPSC to file an incident report at the time of her son’s injury, the commission already knew of the risks posed by the toy, but would not issue a public statement until a formal investigation had been completed. Ms. Lipin said that, “to date, there have been 392 reported injuries, 279 were strangulations. The CPSC issued a mild advisory stating that there were no lasting injuries and seven cases had reported broken blood vessels and that the toy posed only a ‘low but potential risk of strangulation.’ This advisory failed to mention the true nature of reported injuries.” Ms. Lipin took action on her own to alert parents of the dangers of the Yo-Yo Water Ball. She stated, “I contacted CEOs of major corporations to ask them to remove the toy from their inventory. Most told me they rely heavily on the CPSC to determine the safety of a toy. Some companies were unaware there was a safety issue related to the toy. Because of the limited action taken by the CPSC, these companies considered the toy safe. I provided these companies with documentation of the severity and true number of injuries…My efforts persuaded 7-Eleven Corp. to issue an advisory to 5,300 stores that this toy could not be sold. eBay, which initially told me that they relied on the CPSC for direction and therefore would not prohibit the sale of the toy, reversed their decision two days later after receiving my documentation. K-mart has recently agreed to stop selling the toy. KB Toys has agreed to cancel all future orders.”
Testifying on behalf of Kids In Danger, Executive Director Nancy Cowles said that there are “many flaws in the current recall system. Manufacturers have editorial veto power over the press release announcing the recall, allowing them to try to downplay the danger. The only requirement is the press release. Many companies do nothing further to publicize the recall and millions of potential users never hear of the danger. An effective recall retrieves or accounts for only 10-30 percent of the recalled items already in consumer hands.” Expressing her support for the Infant and Toddler Durable Product Safety Act, she stated, “We believe the answer lies in the simple solution that most parents already believe is the case all children’s products should be tested, by independent laboratories, to strict safety standards, before they can be placed on store shelves. Voluntary standards and self-reporting have not worked.” Ms. Cowles urged the subcommittee to increase its oversight of the CPSC, noting that Congress should require an annual report on the effectiveness of product recalls and should remove the cap on penalties for repeat offenders.
Gary Klein, senior vice president for government, legal and regulatory affairs at the Toy Industry Association, Inc. (TIA), explained that the TIA initiated the first voluntary comprehensive safety standard under the American Society for Testing and Materials (ASTM) International in 1976. Explaining that the safety standard is reviewed and revised every five years, he stated that the ASTM “is one of the largest voluntary standards development organizations in the world. And while, technically, ASTM…is a ‘voluntary’ standard, that really is a misnomer. Not only is adherence to the standard required for TIA membership; toy manufacturers know that compliance with the ASTM standard is essential to consumer safety, required by virtually all toy retailers, and enforced by the Consumer Product Safety Commission. Further, it serves as a model for other standards worldwide.” Arguing that standards and legislation “can only do so much,” Mr. Klein stated, “I believe that education holds the key and TIA has long recognized the importance of education in product safety. We must focus on the true hazards and use our resources accordingly to get the message out. There is no substitute, ever, for adult supervision and it is the shared role of industry, consumer organizations and CPSC to educate consumers as to the real risks out there and appropriate behavior to protect children. In doing so, we will have provided parents with the necessary tools to affect change and ensure the safety of our most cherished resource our nation’s children.”
Rachel Weintraub, assistant general counsel for the Consumer Federation of America, explained that when the CPSC was created in 1974, the commission “was appropriated $34.7 million and 786 FTEs [full-time employees]. Now 28 years later, the agency’s budget has not kept up with inflation, has not kept up with its deteriorating infrastructure, has not kept up with increasing data collection needs, has not kept up with the fast paced changes occurring in consumer product development, and has not kept pace with the vast increase in the number of consumer products on the market. CPSC’s staff has suffered in severe and repeated cuts during the last two decades, falling from a high of 978 employees in 1980 to just 471 for the past fiscal year.” Ms. Weintraub urged Congress to eliminate the cap on the fines assessed by the CPSC, to allow the CPSC to provide safety information to the public without first seeking permission from the manufacturer, and to provide adequate funding for the CPSC in FY2005.
