Acting Consumer Product Safety Commission Chair Nancy Nord wrote to former House Energy and Commerce Committee Chairman John Dingell (Democrat-Michigan) and other concerned lawmakers on 20 March outlining some of the difficulties that her agency has experienced in its implementation of the CPSIA and requesting additional flexibility in a number of areas. The letter describes how the CPSC has been involved in a frenzied process since August 2008 to implement the CPSIA, which has involved the initiation of over 20 rulemaking activities, the issuance of enforcement guidance and policies, the development of a special CPSIA Web site, and engaging businesses and the public in various ways. Nord claims that this level of activity is unparalleled for an agency of the CPSC’s size, has “severely overstretched” agency staff and is resulting in implementation delays that are expected to continue until the commission is “able to fully hire and otherwise maximize the resources that have just been provided to the agency for the second half of fiscal year 2009.”

Nord said the CPSC has been confronted with three major issues in implementing the CPSIA: (1) the retroactive application of requirements to inventory, (2) the broad coverage of the law, which applies to all products for children 12 years of age or younger, and (3) the impact of new testing and certification requirements for all consumer products and the third-party testing requirements for children’s products. Other heavy burdens faced by the agency include (1) the continuing need to process and review applications for laboratory accreditation; (2) the need for further refinement of guidance on the scope of the phthalates ban and, in particular, defining a testing method and dealing with compliance questions regarding the chemistry and carbon chain branching that determines whether a product contains a prohibited phthalate; and (3) the engineering issues raised by the Pool and Spa Safety Act and the need to reconcile state regulations on health and safety issues such as water quality with the need to replace drain covers as required by that law.

Nord’s letter claims that the mandatory deadlines set by the CPSIA have overwhelmed the CPSC while jeopardising its ability to meet its priorities. In this respect, Nord said that while more funding and staffing would help, granting the CPSC more flexibility to prioritise its work to deal with the most serious risks and more autonomy to implement the CPSIA would be the best way to ease the burdens on both government and industry while ensuring compliance with the law. CPSC staff has suggested using risk assessment to establish priorities, extending some of the mandatory statutory deadlines and allowing the CPSC more discretion to move an effective date for a given product or class of products in certain circumstances.

The letter concludes that the following three changes would resolve many of the major difficulties experienced to date.

• Limit the applicability of new requirements to products manufactured after the effective date of the law, except in circumstances where the CPSC decides that exposure to a product presents a health and safety risk to children.
• Lower the age limit used in the definition of “children’s products” to better reflect exposure and give the CPSC the discretion to set a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household.
• Allow the CPSC to address certification, tracking labels and other issues on a product class or other logical basis using risk assessment methodologies, which would allow the CPSC to “exempt certain products from the limits established by the CPSIA, to ease the burdens of testing and certification on products unlikely to present more than a negligible health risk, and to regulate on a timetable influenced by the seriousness of the actual risks and not artificial deadlines.”

Assistant Senate Majority Leader Dick Durbin (Democrat-Illinois), one of the recipients of Nord’s letter and a fairly active supporter of enhanced consumer product safety, responded on 27 March with a sharp criticism of Nord’s leadership as CPSC head. Durbin views Nord’s many complaints as a sign of her continued resistance to modernising the CPSC and her disregard of public concerns over unsafe products. The letter also describes Nord’s comments on the CPSIA as a gross mischaracterisation of the law and makes clear that those comments have not been “constructive or accurate.”