Comments to CPSC on Reducing Regulatory Burdens for Toys

September 30, 2017

Office of the Secretary
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Re: Request for Information on Potentially Reducing Regulatory Burdens Without Harming Consumers, Docket No. CPSC-2017-0029

Introduction

These comments and information are provided by The Toy Association on behalf of its members in response to the Federal Register notice titled, “Request for Information on Potentially Reducing Regulatory Burdens Without Harming Consumers.”

By way of background, The Toy Association™, Inc. represents more than 950 businesses – toy manufacturers, importers and retailers, as well as toy inventors, designers and testing labs – who are all involved in bringing safe and fun toys and games for children to market. Approximately 3 billion toys are sold in the U.S. each year, totaling $26 billion at retail, and our members account for approximately 90% of this market.

Toy safety is the top priority for the industry and our members have long been leaders in toy safety, dating back to the 1930s. Our efforts include leading the development of the first comprehensive toy safety standard (later adopted as ASTM F963, which in 2008 became a mandatory consumer product safety rule under CPSIA); the industry continues to provide technical input and actively participate in the ongoing review of this "living" standard today, to keep pace with innovation and potential emerging issues. The Toy Association and its members work with government officials, consumer groups, and industry leaders on ongoing programs to ensure safe play.

Reducing regulatory burdens that do not advance toy safety, particularly those stemming from unnecessary and excessive third-party testing requirements, while still ensuring toy safety, has been a priority for The Toy Association and its members for many years. We have provided input and data on this issue to the agency on several previous occasions and we appreciate the efforts CPSC has undertaken to reduce these unnecessary and/or redundant testing burdens. Our comments herein lay out our suggestions for reducing testing burdens, as well as reducing overall regulatory burdens on toy companies that do not contribute to consumer safety.

Summary of Requests for Regulatory Burden Reduction

The Toy Association and our members submit the following as potential ways to reduce regulatory burdens on toy manufacturers:

• Continue to expand the list of materials that will not exceed CPSIA mandated limits for heavy metals and phthalates and thus would not require third party testing.
• Urge retailers to defer to federal requirements and not add on retailer-specific duplicative and unnecessary testing requirements for toys.
• Recognize toy testing performed for other comparable international toy standards that have similar requirements.
• Continue to review and consider the use of screening test methods as a means to demonstrate compliance and reduce the testing burden under CPSIA.
• Continue to improve targeting and prioritization of violative imports and reduce the disproportionate targeting of compliant toys and resulting delays at ports of entry.
• Explore an alternate approach to electronically filing certificates of compliance for toys at entry.
• Defer to the Environmental Protection Agency (EPA) on activity related to organohalogen flame retardants.

Continue to Review Materials for CPSIA Compliance

The Toy Association has submitted comments and data to CPSC on numerous occasions urging the testing exemption of certain materials that consistently comply with CPSIA mandated limits. We thank the agency for its most recent final rule exempting seven different plastics from expensive phthalate testing. This exemption provided long-awaited and much-needed relief for the toy industry – particularly small toy companies. We encourage CPSC to continue this momentum and this effective path forward, by reviewing additional materials for compliance and potential exemption. Many materials currently used by the industry are strongly believed to be compliant, as we commented in a similar request for information to reduce testing burdens in 2014.¹ As the agency looks to the next set of materials to exempt, we encourage as a first step that CPSC staff review those plastics already exempt from phthalate testing, for consideration of a possible exemption from heavy metals testing as well.

Furthermore, thanks to additional funding from Congress, the agency commissioned several studies on the presence of phthalates and heavy metals in additional plastic materials,² manufactured wood³ and textiles⁴. Based on the positive results of these studies, along with the data The Toy Association has previously submitted to the agency, we strongly urge CPSC to move quickly to develop rules exempting testing of materials demonstrated to be highly likely to comply with CPSIA mandated limits. Continuing to review materials potentially exempting them from third party testing is a great way to reduce the burden on the regulated community.

Duplicative Testing by Retailers

The predominant issue Toy Association members face regarding third party testing is that far too often, multiple retailers require third party testing be conducted by specific testing facilities. As a result, manufacturers must conduct multiple third party tests and use separate third party testing laboratories to satisfy retail customers’ requirements on a single product. Moreover, retailers have very specific periodic testing requirements – requirements that are often far more stringent than those required in 16 CFR 1107, the “Testing and Labeling Pertaining to Product Certification” regulation.

The Toy Association is on record, by its Counsel, requesting that the Commission clearly and expressly advise retailers that there is no preference accorded to one CPSC-accredited laboratory over another. We understand the agency has stated in the past that lab preferences for retailers and manufacturers is a contract negotiation point. However, there is probably no single action that the Commission could undertake which would have a greater impact in reducing testing costs, than to discourage this duplicative testing by making clear that it is unnecessary, diverts resources from more productive safety efforts and adds cost to products without improving safety.

One company provided us the following example:

I have a product sold at Major Retailer A, Retailer B and Retailer A’s Canadian location as well. The following testing is required:

• I will need to test the product at Test Lab A for Retailer A,
• I will also need to test the product again at Test Lab A for Retailer A’s Canadian location because they will not allow a combined US/Canadian Test encompassing both protocols,
• I will additionally need to test the product at Test Lab B, because Retailer B dictates the test lab I must use for a given product category of toy. However, Retailer B does use Test Lab A for other product categories.

Essentially the product will be tested 6 times per year because Retailers A and B and Retailer A’s Canadian location require testing every 6 months. The redundancy in this situation is only magnified by the fact that Retailer B uses Test Lab A for certain toy categories but will not accept test reports from Test Lab A for others.

Another example provided by a member was when the company had to retest for the physical and mechanical portions of ASTM F963 because the retailer would not accept their 11-day old test report from an alternate CPSC accepted laboratory. Nor would the retailer accept the valid component test reports. This additional testing cost the company over $1,000 on just one product. Urging retailers to accept valid test reports from any CPSC accepted lab could greatly reduce the testing cost burden on toy manufacturers.

Mutual Recognition of Substantially Equivalent Standards

The Toy Association has long advocated for greater alignment of international product safety standards. The most effective and efficient way for a company to run a quality control program is to establish harmonized product safety standards consistent with all markets in which they sell/plan to sell and comply with those. Unfortunately, this is not an easy task. Test methods, labeling requirements and standards themselves may vary from jurisdiction to jurisdiction.

We appreciate CPSC’s efforts to work with international governments to streamline regulations. Indeed, in 2012 CPSC and its counterpart Health Canada each indicated interest in aligned standards, using the ASTM F963 standard and an effort is underway with interested stakeholders to identify and propose areas for potential alignment. In another example, we appreciate the CPSC’s role in explaining to the Kazak government the effectiveness of U.S. age grading requirements. We are aligned in our common interest to provide safe products and appreciate CPSC’s support of alignment efforts. We encourage the agency to become even more involved to help identify opportunities for alignment and to advance such efforts forward.

In the meantime, while we work for the broader goal of alignment of international product safety standards, the CPSC can clarify to the regulated community that, in situations where international standards are identical, provide comparable levels of protection, and/or compliance with U.S. standards can be determined mathematically or scientifically from results of testing for compliance with international standards, third party testing for an international standard would satisfy third party testing requirements for the U.S. counterpart. Simply communicating this message publicly will greatly reduce the number of redundant tests a manufacturer must conduct should the product be sold both domestically and internationally.

We also recommend CPSC consider incorporating language into 16 CFR 1107, the testing and certification rule, similar to 16 CFR 1610.40, “Use of alternate apparatus, procedures, or criteria for tests for guaranty purposes.” The section grants companies the ability to rely on alternative test procedures to demonstrate compliance with the underlying standard provided that the test procedure used is as stringent as or more stringent than the test procedure in the standard itself. Adoption of this language would alleviate many of the issues companies face in having to comply with multiple, similar (if not identical) regulations. Furthermore, if CPSC were to adopt this language, the agency would not have to go through and compare various product safety standards and test methods to determine whether compliance with one denotes compliance with another.

Chemical Screening Tools

Like CPSC, many manufacturers have invested significant resources into alternative testing technology like XRF and HDXRF for heavy metals and FTIR for phthalates. As CPSC has recognized, and endorsed through its support of HDXRF testing being included in ASTM F963-16, these tools can be a more effective and efficient method of screening. While not a perfect testing tool, many manufacturers will include the use of screening via XRF (and other alternative testing methods) into their own quality control programs. We ask that CPSC continue to look at the effectiveness of alternative testing tools and update test standards as appropriate. The use of non-destructive screening testing techniques is much preferable to companies as they are generally quicker and more cost effective.

With regards to FTIR technology, we would urge CPSC to consider this technology a screening method. While not ripe for an acceptable alternative to the current method, it is a promising technology that can quickly determine with an acceptable degree of accuracy if any of the banned phthalates are present simply by placing the apparatus on the plasticized part with an acceptable degree of accuracy. The current technology cannot yet assess parts-per-million with a high degree of accuracy. However, it can be a time and resource saving option to avoid sample preparation, extraction and analysis that requires cutting pieces of the plasticized part and dissolving the sample in a chemical mixture, followed by Gas Chromatography-Mass Spectrometry (GC-MS) analysis, which is the current expensive and time-consuming method required. Allowing FTIR, and future similar technologies, to be used as a screening tool could drastically reduce testing cost and burdens on the regulated community.

Targeting of Toys at U.S. Ports of Entry

The Toy Association remains supportive of CPSC’s increased enforcement of unsafe products at the ports. However, The Toy Association’s members still struggle with shipments being stopped and detained repeatedly, often for extended periods of time, and then ultimately released without any finding of fault, or in some cases without any examination taking place. Because toys are highly regulated, and mostly imported under a single HTS classification, Chapter 95, toys are targeted more frequently than many other products regulated by CPSC. Since the bulk of toy companies are small businesses, this disproportionate targeting has an outsized impact on their ability to meet business obligations. Detention and examination costs, unhappy customers, missed sales opportunities and cancelled orders are just some of the issues our members have reported.

One suggestion we have previously raised is to allow importers to sample detained shipments for testing by a CPSC-accredited non-governmental laboratory to expedite its handling, similar to the process currently allowed by other regulators. For example, the Food and Drug Administration (FDA), despite having multiple agency-operated regional laboratories, allows importers of some goods such as ceramic tableware to have detained products tested at a private laboratory to obtain a quicker result.

As CPSC import staff continue to increase communications with importers, we hope that the ongoing dialogue lowers the importer’s risk profile and builds the basis for a “trusted trader”-like program (a “trusted trader light,” if you will) which would reduce the number of inspections an importer faces. However, any such program should be accessible to large and small companies. As the agency is well aware, joining the Customs and Border Protection (CBP) Trusted Trader program (or even the CTPAT program) is very costly, time consuming and out of reach for many companies, especially small businesses. We envision those participating in the “trusted trader light” program would be companies willing to go through some extra safety checks to enable an easier entry process. The trusted trader program should also benefit participants by being subject to fewer data requests. Employing a “trusted trader light” program could decrease the work load for CPSC while at the same time increasing the accuracy rate for identifying violative products. This will not only decrease a regulatory burden on industry, but simultaneously free up resources the agency could be using on other safety programs.

Reconsider e-Filing of Certificates of Compliance

We would urge CPSC to seek an alternate approach to requiring that all certificates of compliance be filed electronically upon entry into the U.S. Under the current thinking and pilot program model, the amount of time a company will need to dedicate to enter certificate information would be extremely costly, with very little safety benefit seen by consumers.

As the agency ramps up its participation in the ACE single window program, it is important to consider the amount of time estimated by staff to submit the necessary information for one product. According to the April 2017 report⁵ issued on the Alpha e-filing pilot program, it took participants 10 hours to retrieve all the necessary information, then another 10-15 hours per product to manually enter it into the system. This is not an insignificant amount of time, and when you consider that the toy industry is also a fast moving and ever-changing industry with new products being introduced every year, sometimes every season, the burden increases substantially.

Also, since publication of the draft Section 1110 rule in 2013, companies have begun developing their own systems, unique to their specific needs and technological capabilities. Attempting a one size fits all approach to filing certificates of compliance is not feasible. Certifications for toys and other regulated products are required by the CPSIA, however, to the best of our knowledge the current system of providing the certificate within 24 hours of a request has worked well, and with much less burden on the regulated community. We would urge CPSC to maintain this current practice into the future, and potentially codify it into regulation to provide certainty to importers.

Defer to EPA Efforts on Flame Retardants

The Toy Association was disappointed to learn CPSC voted to grant the petition to ban an entire class of flame retardants in children’s products, mattresses, upholstered furniture and electronic casings. We completely respect CPSC’s authority to regulate chemical hazards in consumer products under the Federal Hazardous Substances Act (FHSA). However, we feel that EPA may be best suited to evaluate this class of chemicals. With the recent passage of an updated Toxic Substances Control Act (TSCA) last summer, EPA has new authority to review chemicals, including this class of flame retardants, and is required to do so under very specific and tight timelines. To consider banning an entire class of chemicals using the required FHSA mandates will take years and many resources away from staff that could be used towards other more beneficial safety programs.

Under TSCA section 6, EPA is required to give high priority designations, and thus a thorough risk evaluation, to 90 chemicals listed in the 2014 Work Plan,⁶ which includes many of the flame retardants mentioned in the petition. As such, EPA already has a statutory mandate to review these chemicals. To have CPSC also review them for safety is redundant and goes against Executive Order 13771⁷ which calls for the government to reduce regulatory burdens and not require duplicative requirements on the regulated community. An alternative option would be for CPSC to work with EPA as it evaluates these chemicals, even suggesting to EPA that they review flame retardants in their next batch of evaluations. Once EPA performs its risk evaluation, CPSC could then develop a regulation specific to their use in consumer products based on the results of the review.

Conclusion

We appreciate CPSC giving us the opportunity to provide feedback on ways to reduce the overall regulatory burden on industry. We hope to be an ongoing resource and partner as the agency looks to more effectively lessen the negative impact of redundant testing on the toy industry and others. Toy safety is the number one priority for the toy industry and we fully support efforts to ensure product safety, while reducing unnecessary and costly third party testing and over reaching regulations that do not improve safety.

Thank you again for your consideration. If you would like to follow up with us, please contact Autumn Moore, Manager of Standards and Regulatory Affairs, at amoore@toyassociation.org or 202.459.0350.

Sincerely,

Stephen Pasierb
President & CEO

¹ CPSC Workshop on Potential Ways to Reduce Third Party Testing Costs Through Determinations Consistent With Assuring Compliance, Comment Request [Docket No. CPSC-2011-0081], comments submitted by The Toy Association, formerly known as the Toy Industry Association found on September 23, 2017 here: https://www.regulations.gov/document?D=CPSC-2011-0081-0061

² Exposure Assessment: Potential for the Presence of Phthalates in Specified Materials at Concentrations Above 0.1 Percent published in August of 2016 and found on September 23, 2017 here: https://www.cpsc.gov/s3fs-public/ThePotentialforPhthalatesinSelectedPlastics.pdf

³ Final Report for CPSC Task 14 published April 2016 and found on September 23, 2017 here: https://www.cpsc.gov/s3fs-public/ManufacturedWoodsTERATask14Report.pdf

⁴ Exposure Assessment: Potential for the Presence of Phthalates and Other Specified Elements in Undyed Manufactured Fibers and their Colorants, published October 2016 and found September 23, 2017 here: https://www.cpsc.gov/s3fs-public/TERA%20Task17%20Report%20Phthalates%20and%20ASTM%20Elements%20in%20Manufactured%20Fibers.pdf

⁵ eFiling Alpha Pilot Assessment and CPSC Staff’s Recommendations for eFiling Beta Pilot, found on September 23, 2017 at: https://www.cpsc.gov/s3fs-public/eFiling%20Alpha%20Pilot%20Evaluation%20Report%20-%20May%2024%202017.pdf?JNhQrIi0FpoDjoZSTmpZ7_XRof.cNiO_

⁶ TSCA Work Plan for Chemical Assessment: 2014 Update found September 23, 2017 here: https://www.epa.gov/sites/production/files/2015-01/documents/tsca_work_plan_chemicals_2014_update-final.pdf

⁷ Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs, issued January 30, 2017 and found on September 12, 2017 here: https://www.whitehouse.gov/presidential-actions/presidential-executive-order-reducing-regulation-controlling-regulatory-costs/