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Washington Outlook Archive

CPSC's Authority Grows

James A. Morrissey, Washington Correspondent

A revitalized Consumer Product Safety Commission (CPSC) - with significantly increased funding and authority - will have considerable impact on US textile and apparel manufacturers, importers and retailers. While the greatly underfunded and understaffed agency pretty much limped along under the Bush administration, the recently enacted Consumer Product Safety Improvement Act (CPSIA) has created an entirely new ball game. Following a flap over the discovery of high levels of lead in children's toys and other products, Congress passed CPSIA to address that problem, laying the groundwork for a series of new regulations that will affect textiles and apparel and a wide range of other products. That has created headaches for manufacturers, distributors, importers and retailers.

Christie Grymes, a partner in the law firm of Kelly Drye and Warren LLP, whose practice focuses on consumer product issues, says CPSIA has led to a new environment that calls for everyone along
the supply chain to take a different approach to dealing with suppliers and customers. This, she says, calls for them to develop better relationships so they can assure one another that their products comply with the regulations. The manner in which CPSC has handled proposed regulations has caused much uncertainty, particularly among retailers, who do not want to see the products they stock and sell subject to questioning and recalls. Grymes believes there will be increased activity by consumer advocacy groups, which will be closely monitoring performance under the new regulations. In light of this, she is urging her clients to improve their relationships with suppliers and have a plan to address consumer complaints before they get out of hand.

Grymes has prepared an informative analysis of CPSIA that outlines key issues of interest to textile and apparel manufacturers as well as others. The legislation will:
•    create within two years a public searchable database on CPSC's website that will include reports of any injury, illness, death or risk of injury or death;
•    reduce the level of lead in children's products;
•    require third-party testing prior to sale;
•    create whistle-blower protections for employees of manufacturers, private labelers, retailers and distributors; and
•    re-establish CPSC's quorum of five members within one year, but to facilitate timely decision-making, the current two-member quorum rule will apply for the first year.

CPSC already has moved in areas authorized by CPSIA that will impact textile manufacturers.

Lead Content In Children's Products
CPSC created considerable problems when it issued a regulation last February requiring testing and certification of the lead content in products, including textiles and apparel, used by children 12 years of age and younger. Major problems arose when the requirement was made retroactive, affecting products already made and in many cases already on retail shelves. However, the commission offered some relief when it approved a one-year stay until February 2010 of the testing and certification requirement. However, the products still must be under the permissible lead levels in the rule.

In addition, of particular importance to textile manufacturers, CPSC initiated a process for exempting  inherently lead-free products. US textile manufacturers contend there is no lead in their products.

CPSC is working on a regulation to require manufacturers of children's products sold after August 14, 2009, to place distinguishing marks on labels and packaging to help facilitate recalls of unsafe products. Labels will have to include the date and place of manufacture as well as information such as batch number or other identifying characteristics.

Formaldehyde In Textiles
The new law directs the General Accountability Office to conduct a study and recommend product safety standards covering formaldehyde in textile and apparel products. Textile manufacturers have been tracking this issue for some time, and they do not believe there is any consumer safety risk in today's textiles.

The law also increases civil penalties for violations of the Consumer Product Safety and Flammable Fabrics Acts from $8,000 to $15,000, and the cap for a series of violations is raised from $1.8 million to $15 million. The law also increases the maximum criminal penalties to five years in prison for knowingly violating the law.

New Legislation Proposed
In view of problems created by CPSIA, a group of affected industries has rallied around legislation that addresses problems with deadlines and the economic impact of some of the regulations. Rep. Joe Barton, R-Texas, and 16 House co-sponsors have introduced a bill that would make application of the rules prospective rather than retroactive and would grant CPSC more time and flexibility to develop standards that would be more practical and less onerous.

Apart from the new CPSIA initiatives, CPSC is continuing its efforts to write a standard covering upholstered furniture flammability, but the commission staff continues to wrestle with just how best
to get the job done. Upholstered furniture fabric manufacturers favor a federal standard, providing it is research-based, does not place an undue burden on the fabric or limit consumer choices. National Textile Association Chairman Roger Berkley, who has had a long history of working with CPSC on the furniture flammability issue, says progress is being made but it is inappropriate for the standard to focus mainly on the fabric. He says it must take into consideration all of the components in a piece of upholstered furniture.

While CPSC has a wide-ranging agenda, particularly in view of the new issues brought about by CPSIA, the ace in the hole will be just how much funding the agency gets, especially considering the tight overall federal budget situation.

No Quick Turnaround On China Trade Issues
Although Barack Obama during the campaign made an issue of problems with Chinese trade and said illegal subsidies must be addressed, the administration is refusing to brand China a currency manipulator. In a recent report to Congress, Treasury Secretary Timothy Geithner said China is making progress on the currency issue - which he says still exists - but he sees no need to brand China as a manipulator at this time. The reasons for the kid-gloves treatment are simple: The United States needs China's support and cooperation in dealing with the global recession and in its effort to curb North Korea's nuclear development program.

In a related development, US Trade Representative Ron Kirk, in discussing the US trade deficit, did not mention any problems with imports but said, instead, that the best route to shrinking the deficit is through developing export markets for US products - something that sounds an awful lot like the Bush administration.

May/June 2009

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