Deco ’16, which was held April 16-18, featured a government panel assembled by Walt Sanders, SGCDpro Washington liaison. The panel kicked off the annual Ask the Experts session on Sunday, April 17. The society has been tracking a number of issues, including Toxic Substance Control Act (TSCA) updates and Consumer Product Safety Commission (CPSC) initiatives.

High-Profile CPSC Issues

During the event, Sanders reported to the SGCDpro board on a February hearing of the House Energy & Commerce Subcommittee. The subcommittee explored high-profile CPSC proposed rulemakings for which there is no clear timeline for resolution, thereby creating a substantial amount of uncertainty for the regulated industry. Of particular interest to SGCDpro members were issues relating to voluntary standards, confidentiality rules relating to recalls, and import surveillance fees.

The importance of the ASTM process in setting voluntary standards was a focus of testimony by Mark Fellin, director of regulatory and legislative affairs for the Juvenile Products Manufacturers Association (JPMA). Although Fellin’s comments concerned juvenile products, it was clear that the inherent problems with CPSC’s role in the ASTM process that he described would be relevant to any company that relies on the ASTM process. JPMA members have taken CPSC input into account when developing and revising ASTM juvenile product standards, Fellin stated. But, while recognizing the value of a collaborative process, including the vital role CPSC plays, he suggested that “CPSC staff must better understand and appreciate the realities of implementing standards for the design and production of actual products…and should not arbitrarily change language, placement or dynamic performance requirements within a standard without adequate justification.”

Fellin described the ASTM process that “relies on individual participants’ ability to comment on draft proposals, initiate revisions to a standard and review a final document before approval to ensure that all issues are vetted appropriately.” He went on to suggest that “although the process may take time from a CPSC standpoint, this approach assures that everyone’s voice is heard and that the ‘best standard’ is available for publication and consequently CPSC staff reference” during the required Final Rulemaking. Fellin explained that in the development of ASTM Standards, participants historically have relied on CPSC staff to provide summaries of verified incident data and engineering analysis, while maintaining required confidentiality. This has ensured that all parties have the data needed to make informed decisions as part of the process of risk hazard analysis and development of performance requirements. “Unfortunately, such data has not recently been as forthcoming as required,” he said.

Fellin also criticized CPSC for failing to drop a proposed formal voluntary recall rule from its operating plan, suggesting that the proposed changes would not change the way “bad actors” are currently engaging with the CPSC. Instead, he predicted, the proposal could reduce the efficacy of such recalls by responsible actors and lead to conflict in the implementation of voluntary recalls caused by bureaucratic requirements involving extensive review and negotiations, especially when the recall involves small “mom and pop” entities with limited resources. Fellin also criticized CPSC for failing to drop proposed changes to confidentiality safeguards available under CPSA Section 6(b), even though the chairman has stated publicly that the proposal would not be heard for decisional votes. Current procedures, he suggested, “remain important to ensuring the staff’s ability to obtain proprietary information from entities conducting voluntary recalls.”

In other testimony, Jonathan Gold, vice president of supply chain and customs policy for the National Retail Federation, reported that his group is generally satisfied with an increased bipartisan decision-making process at CPSC, but he expressed concern that the commission is placing more emphasis on retailers to identify defective products and to conduct recalls. Gold repeated Fellin’s concerns about the commission’s failure to formally withdraw the proposed rule relating to recalls and modifying section 6(b) information disclosure, even though Chairman Kaye has indicated they are not a priority. Gold opined that the commission has made progress on the proposed import surveillance rule, but complained that non-statutory meetings policy has precluded industry from participating in a number of internal meetings of CPSC staff on that issue.

During the dialogue with industry witnesses, Rep. Leonard Lance (R-NJ) expressed concern about the impact of the proposed import “user fee” and questioned whether it would be an effective funding mechanism for the import surveillance program. Industry witnesses shared the view that the allocation of an import fee would be unpredictable and not workable for industry. In his report to the board, Sanders noted the value of the interplay between various industry groups and a hospitable congressional committee in recognizing that consumer safety must be balanced with rational policies that embrace government-industry cooperation to solve product safety problems rather than adopting inefficient “command and control solutions.” He noted that these efforts build a record for possible changes in the CPSIA and other statutes governing CPSC. In addition, Sanders suggested, “It is also good to build relationships with legislative policy makers to gain their confidence so that when a regulatory crisis materializes, appropriate measures can be taken to impact the outcome of CPSC [or other government] policy.”

New TSCA Reform Issue

In response to an issue raised after a rewrite of the 1976 Toxic Substances Control Act had passed with strong bipartisan support in both the House and Senate, Rep. John Shimkus (R-MO), the main House sponsor, has said “we are in the middle of crunch time” in negotiating House-Senate versions. “I think people are trying to throw sand in the gears, maybe as a negotiating position.”

At issue is a paragraph that was raised as a potential legal defense by Monsanto in a Texas lawsuit over health and cleanup liability from its production of polychlorinated biphenyls (PCBs). PCBs were used widely as a fire retardant and in caulk, paint, and electrical transformers in the mid-20th century. When environmental and health risks emerged from exposure to the chemical, the company stopped producing them. Monsanto, the primary producer of PCBs, says that it didn’t ask for the provision and the language merely continues current law. A spokesman for the House Energy and Commerce Committee confirmed that the language had been inserted “to preserve existing law” and added that the “process was open, collaborative and bipartisan every step of the way, and we are proud of the 398-1 vote.”

Another tricky issue facing members of the conference committee is the role of states in chemicals management. A coalition of state leaders and a group of states’ attorneys general recently called on the committee to preserve the regulatory authority of states in the reconciliation bill. Nevertheless, Shimkus remains hopeful that issues will be resolved and a major TSCA overhaul will happen this year.