December 22, 2008

 

Via Overnight Delivery

 

The Honorable Edward M. Kennedy
United States Senate
317 Russell Senate Office Building
Washington, D.C. 20510-2101

 

Re: Petition for Rulemaking under CPSIA Section 101

 

Dear Mr. Kennedy

 

I’m President of Corky & Company LLC, a manufacturer of children’s outerwear located in Fall River, Massachusetts.  We’ve been in business for fifteen years, have always supported children charities in our community and provide a livelihood for a number of residents of southeastern Massachusetts.  I have three young children and respect the intent of Congress when the Consumer Product Improvement Act of 2008 was passed this summer. 

 

At Corky & Company we have been working diligently to understand and comply with the new law.  We are taking actions that we understand to be necessary, but there is tremendous confusion in my industry as to what is required of children’s apparel makers.  Recently the National Association of Manufacturers (NAM) asked the U.S. Consumer Protection Agency for a Petition for Rulemaking under CPSIA section 101.  A copy of that letter can be found in its entirety at the URL:

 

http://www.toyassociation.org/AM/PDFs/Safety/CPSCPetition1208.pdf

 

I have taken the liberty to summarize this letter here in order to explain the uncertainty of the CPSIA as it relates to Corky & Company LLC.  Could I please ask you to urge the U.S. Consumer Protection Agency to fully and urgently act on the National Association of Manufacturers request for rulemaking?  Immediate action is needed for my industry to be in a position to comply with the intent of the Act. 

 

Executive Summary

 

NAM has asked for urgent action from the CPSC on the proposed rule making in light of the upcoming February 10, 2009 deadline for new lead limits in substrates.  The CPSIA was drafted with the intention of enhancing children’s product safety.  In connection with the new lead content requirements it is necessary for the CPSC to define how component testing can be relied upon and which materials and components should be excluded from testing.  Manufacturers need to be able to rely upon supplier certifications for component materials.  Developed regulations that address these issues before the February 10, 2009 deadline are necessary to enable effective compliance.  Congress did not reasonably intend a chaotic implementation of the CPSIA.

 

Congress recognized an important role for risk and exposure assessments in identifying exclusions from reduced lead limits.  Section 101 (b) authorizes the CPSC to grant exemptions to the lead limits under several circumstances, and § 3 gives the CPSC authority to issue regulations, as necessary, to implement the CPSIA.  One major problem with the impending deadline to meet the lead limit comes before the CPSC is expected to issue guidance on test methods or rule on exceptions.  The problem is exacerbated further by the absence of clear guidance on circumstances in which composite and upstream input component testing is acceptable.  Such guidelines need to be firmly established as part of a rule. 

 

 

Uncertainty Related to Children Apparel Makers

 

A specific example for a children’s apparel maker is the use of fabrics like cotton and cotton thread with no or very low total lead to make thousands of SKUs of children’s t-shirts.  Absent an exemption, the garment producer may have to test each SKU for lead – testing the identical material thousands of times.  Or, a garment maker might purchase 100,000 zippers and use the zippers in a variety of children’s apparel, perhaps involving 10,000 SKUs.  Common sense tells us that it must be acceptable for the garment maker to rely upon the zipper manufacturer to certify compliance on all of its zippers, rather than needlessly require the zipper used in various garments to be tested 10,000 times because it is used in 10,000 different garments.  The statutory language is unclear and could be interrupted to mandate 10,000 different tests.  These are the types of practical problems that manufacturers, importers and retailers face and that have enormous cost implications.

 

Excluding from the requirements of § 101 materials or components that are known to meet the lead standards is crucial to maintaining safety, maximizing consumer choice and preserving the economic viability of American businesses.  Limiting the number of lead tests that must be conducted by excluding materials, components and products that do not pose a risk will avoid costly and unnecessary testing, and offers environmental benefits as well by reducing the hazardous wastes which are a by product of testing with hydrochloric and nitric acid.  Adoption of common-sense, risk, health and safety exemptions, consistent with the CPSC’s statutory authority, will protect the public while minimizing unnecessary economic impacts on business that lack any added safety benefit to consumers.

 

The best available scientific evidence supports excluding fabrics, threads and elastics because they are known to contain no or very low amounts of lead and therefore meet the criteria for exemption under the provisions of § 101 (b)(1). The state of California in consultation with scientists and toxicologists agreed to exclude from regulation under The Safe Drinking Water and Toxic Enforcement Act of 1986 materials that have no or very low amounts of lead.   Included in these materials were fabrics, threads and elastics. 

 

 

Clarification Needed By Children Apparel Makers

 

As noted above, garment makers are grappling with the technical and practical questions about how and what to test for lead.  In addition to granting exceptions, as outlined above, which are entirely consistent with public health objectives and the statutory framework, the CPSC is urged to recognize reasonable component or raw material testing as the basis for certifications required under the CPSIA. 

 

The apparel industry understands the need for robust quality control to assure components or raw materials meet required specifications and have implemented quality control procedures to assure that they do.  The supply chain must rely upon a reasonable raw material and component manufacturer testing, as part of a comprehensive lead compliance verification process.  Failing to address these issues will create enormous practical difficulties and financial burdens with no commensurate public safety benefit. 

 

The timelines for the CPSC to act on testing and exceptions are not synchronized with the February 10, 2009 deadline for lead.  Action is urgently needed on a comprehensive rule on all aspects of the lead limits to provide clarity and minimize disruption to markets in a fashion that fully meets our shared product safety objectives.

 

 

On behalf of Corky & Company LLC, its employees and our retailers we appreciate any effort you can make to encourage the U.S. Consumer Protection Safety Commission to act on the National Association of Manufacturers petition for rulemaking under CPSIA section 101.

 

Sincerely,

 

Alan F. Macomber

President

Corky & Company LLC