Hearing of the Consumer Affairs Subcommittee of the Senate Commerce Committee - Consumer Product Safety Commission Reform Act of 2007

Interview

Hearing of the Consumer Affairs, Insurance and Automobile Safety Subcommittee of the Senate Commerce, Science and Transportation Committee - Consumer Product Safety Commission Reform Act of 2007

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SEN. AMY KLOBUCHAR (D-MN): Thank you Senator Pryor and Senator Sununu for your leadership on this subcommittee. And thank you Senator Pryor for holding this hearing.

I think, as everyone knows, this has been the summer and the fall of recall. It seems like everyday for the past four months, when you open up the paper, you hear that another toy or children's product has been recalled.

As a mother and a former prosecutor, I find it totally unacceptable that these toys are continuing to get in the hands of our children, and it shouldn't be happening in this day and age.

As my 12-year-old daughter said, she was very uninterested in this issue when it was regarding SpongeBob SquarePants and Thomas the Train Set, but she said when the Barbie's came up, "Mom this is getting serious."

One of the first products recalled this summer as a result of lead paint was the 1.5 million Thomas and Friends trains like the ones that I have right here.

And the RC2 Corporation, as everyone knows, that have been following this issue, apologized to the customers and said it would make every effort to ensure that this wouldn't happen again, and to encourage customer loyalty and to prompt their customers to send in the trains.

RC2 offered customers returning trains, a bonus gift, for their trouble. Well, the bonus gift backfired in a big way.

Just last week it was discovered that 2,000 of these bonus gift trains contained lead paint levels four times higher than legally allowed leaving parents of toddlers across the nation to deal with a double recall.

As a result of this, an approximately 20 million other toys that have been recalled, American consumers are losing faith and losing confidence in the toys they can purchase in the stores.

And as we have watched this recall process unfold this summer, everyone has been enlightened to learn of a lack of resources when Senator Durbin and Senator Pryor discussed with the Consumer Product Safety Commission.

In total, the Consumer Product Safety Commission has only about 100 field investigators and compliance personnel nationwide.

Even worse, we now know from the photos and the visits of our staff, that they have only one toy inspector, Bob, the small parts guy, who is going to be retiring at the end of the year.

It is time for us to act, and I appreciate the work of Commissioner Nord and Moore. They've educated us on how the commission can be modernized. And I thank the Senator Pryor for working with all of us to put together this bill.

I also thank the companies that we've working with in Minnesota, Target and Toys R Us, for their input, and they've been very forthcoming.

And I am also pleased to report that this legislation that Senator Pryor has put together contains two other more important pieces of legislation that I introduced, that it makes it easier to identify recall process and illegal to sell them, and also the lead ban that Senator Pryor discussed.

And the need for this ban tragically struck at home for our people when a little 4-year-old boy named Jarnell Brown died after swallowing a heart, a little charm that he got with a pair of tennis shoes.

He didn't buy the charm. It was given to him as a little bonus gift with the tennis shoes. And he swallowed. And he didn't die from chocking, he didn't die from inhaling that charm, he died over a series of days as the lead crept into his blood stream.

He should never have had access to that toy in the first place. And it was made in China. And when they tested it in Minnesota, it was 99 percent lead.

The first piece of legislation that I introduced that's included in this bill is that lead ban. And I think it's hard for people to believe that we don't have a federal lead ban now. We have guidance, a voluntary guideline.

What we did is, we took that guideline and looked at other guidelines with the understanding that there is trace lead in products, and set it at 0.04 parts per million, for jewelry lower 0.02, which is the standard they're going to be using in California next year.

And we've made some other exceptions as well for batteries and other things. The second piece of legislation, which I think is really important to the parents across the country, is that they know what products they're dealing with.

When they look at their kid's toy boxes and they see all these toys and they're supposed to figure out when they bought it and a date and a batch number, unless you're my mother-in-law, no one keeps the packaging from the toys.

And one of the things that I'd like to see improved in this legislation is to make sure that we require that the numbers and the batch numbers be actually printed on the toy.

Obviously, you're not going to able to do it with pick-up stick or things like that. But for most toys, they're going to be able to write a date and a batch number at the bottom. I think it should be very clear so that parents can easily look at this.

The other thing you need to do is to have it on the packaging because unlike some of our major retailers like Target or Wal-Mart, a lot of them are in top operations, or when things are sold on e-Bay, they're not able to identify in their computer system when something is recalled.

And it was also be good to have it on the packaging "for retailers only". Obviously, the parents are going to need it on the toys and stuff.

So those are our practical solutions. We look forward to working with Senator Pryor and the rest of this committee on something that time has come, it's time to act.

And I'm hopeful we're going to get to this legislation through this subcommittee. Thank you very much, Mr. Chairman.

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SEN. KLOBUCHAR: Thank you. Thank you, Commissioner Nord, Commissioner Moore. And we're together again, Commissioner Nord. I think it's the third time. They say third time is a charm. Hopefully, not a lead charm.

SEN. KLOBUCHAR: I was -- (Laughter)

SEN. KLOBUCHAR: I was trying to understand -- I just couldn't resist -- how you identify products to test and to recall. And you know I've been -- (inaudible) -- who is my great staff member, and this -- these were her daughter's trains. And these were recalled on June 13th.

And she in fact had a whole starter set for her daughter, which included this little tree and this signal in the Thomas the Train set.

And so, she dutifully gave these to me to go around the country with. But these other set, she found out, were recalled on September 26th. So she thought these were safe even though there were in one grouping of toys that she bought together.

And you can see how her daughter has chewed on these, on the corner of the three. And, in fact, this green paint and this with the green paint as well was recalled even though they were on the same set on September 26th.

And so, what I'm confused about is, if these were tested and we found out that this paint had, the red paint, had a problem, why these weren't recalled at the same time when they were in the same set. And so, how do you identify the products that you need to test for a recall?

MS. NORD: Recalls occur in a variety of different ways. First of all, companies because they do have an obligation to report to us, they do come to us and say, look, we think we've got a problem.

When that happens, a couple of things can happen. First of all, we will sit down with the company and research it and make a determination as to whether a recall should occur or it shouldn't occur.

Another way that recalls happen is that if the company comes to us and says, look, we believe that we have got a violation of, for example, the lead paint ban. We're going to do a recall.

And it's something that they don't have a conversation with us about. They have decided to do it. That is what is called the fast track recall.

And when that happens, we try to get those recalls accomplished within 20 days of having the first conversation with the company.

What happened with respect to the Thomas the Tank Engine recall, I believe, is that the company -- well, I know the company came into it and said we are going to be doing a recall of this product because we have found lead paint in them. We facilitated that recall.

SEN. KLOBUCHAR: But when you have the same items in the same set, doesn't that trigger some kind of testing requirement when you know, when they've told you, that this item has the problem, you don't test for the other items in the same set?

MS. NORD: No, the lead paint ban is a bright-line statutory ban. If they sell products with lead paint, then they are in violation of that ban.

SEN. KLOBUCHAR: I understand that. But our country did not step in and say that these other items should be recalled. It would seem that it would be simple to test this green paint and to find a set that had -- that was sold together like this.

MS. NORD: Our country stepped in and said if you sell something with lead paint, it will be -- you would be in violation of the law and it will be recalled.

Now, after the June situation with Thomas the Tank Engine, we did sit down and do a great deal of testing on these products. And I'd be happy to get back to you as to why the green tree was or was not.

There's a lot of misinformation about -- out there about these particular products. But let me just find out what actually we did, and I'll respond to you. I'll be happy to.

SEN. KLOBUCHAR: Okay. Thank you. My time has expired, and I appreciate that we can talk about it more in the future.

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SEN. KLOBUCHAR: Thank you, Chairman Pryor. As you all know, I'm very interested in making it easier for parents to identify toys when they have been recalled. And I just wanted to get your thoughts on this.

I understand that not every toy, a little pickup stick can have the label on or the demarcation. I might -- I don't think you'd necessarily want a label that could be pulled off.

But most toys, including our little tree here, that the child ate the paint off of, could have a batch number or a date number at the bottom. And so that is why I'm interested in having it on the toy, so it makes it easier for the parents.

But also on the packaging just because I understand and maybe, Mr. Thompson, you can correct me if I'm wrong. And for some of the major retailers they wouldn't need that because they just -- the minute they hear about a recall they are able to put it on their computer system. And they can't run out -- run up any of the -- and this is what Target has told me and Toys "R" Us, that they can stop that from happening at the point of sale.

Is that right?

MR. THOMPSON: Yes, ma'am, that is correct. Once the recall notice goes out, our stores' put in a block of sale and that -- not only in their physical stores but on the Internet as well.

In -- to respond to your question on the traceability, I think that is something that our industry is looking at moving forward and on very quickly. Because we do feel that it would be helpful to better identify products they need to recall.

And I can speak personally on this, as a parent, I think, when we were dealing with the Mattel products' recall, in our case it was Elmo and Diego. It was very helpful to make --

SEN. KLOBUCHAR: It is always interesting to hear people's choice of toys.

(Laughter)

MR. THOMPSON: My one-year-old -- Elmo, is his favorite word. So we try to satisfy him. It was very helpful to be able to look at some of the toys that had marks to make a determination whether or not we need to send that toy back or not.

And I think better improving the ability -- better improving traceability will go a long way to helping parents and consumers to be able to make a determination on what they need to send back.

SEN. KLOBUCHAR: And so, are you aware of some retailers that aren't the major ones that might not have that ability on a computer system, or would have to actually check on the shelves, or for instance on eBay if people are selling things.

MR. THOMPSON: I could speak to at least some of our smaller retailers that in addition if they don't have the block-of-sale capability, you know, I think the overwhelming majority of our members do, they also posts signage, they put the picture of the toy up.

So they do what they can to ensure that once a consumer walks into their store that they know that this product has been recalled.

SEN. KLOBUCHAR: I'm just trying to get to the desirability of not just having it on the toy but also on the packaging.

MR. THOMPSON: I think the -- I think if you can do it in a way where you can put it in multiple places as long as it is feasible, I think we would be for that. I think in some products, I think, our companies would like to see it on the packaging as well just to make it easier for the consumer.

SEN. KLOBUCHAR: Mr. McGuire, any response?

MR. McGUIRE: I think it is a reasonable idea. I can only speak to the appliances and virtually all the home appliances have a date of manufacture or some sort of indication on them as to when they were manufactured.

And it seems reasonable that all products have some sort of labeling or demarcation that the manufacturer or the retailers could work out with the commission so that it makes sense for retailers, consumers, and the people in the commerce.

SEN. KLOBUCHAR: Thank you, I appreciate that. If you could share with your members, in the toy area that we are -- we do have, in the legislation, to the greatest extent feasible, understanding that there are certain tiny toys that you're not going to be able to put a label on but a mark -- mark I should say. But you could on the packaging.

I remember, if any of our consumer representatives here Mr. Korn, Mr. Plunkett, and Mr. -- Mr. Mierzwinski, whose name is almost as hard as mine. I want to talk a little bit about this identification issue.

MR. MIERZWINSKI: Well, senator, I will just be brief on that and maybe Alan or Travis would want to go into detail. But we would, obviously, support product traceability, when PIRG finds toys and we deliver them to the CPSC, often some of the worst dangers are the very small cheap toys.

And they may not have any kind of manufacturer mark of any kind on them. So we all support that. I wanted to make a comment on some thing earlier that has been brought up kind of all through the whole hearing.

And that is the issue of recalls. I think that underlying the whole discussion of recalls is that every product that is recalled is actually taken off the shelves.

In fact, because of the voluntary nature of recalls that is not always the case. Senator Durban brought up the cribs. The cribs were not taken out of the people's homes.

You could not bring your crib back. They sent you a little envelope full of little parts and you had to fix your own crib. Mr. Korn, has with him the magnetics toys from Rose Arts.

Those toys were not recalled even though, young Kenny Sweet, died when he swallowed several of those toys and they -- the magnets bound together in his intestine. They simply issued a replacement program.

The old toys stayed on the shelves. That is why the provision in the bill, the corrective action provision that strengthens the CPSC's authority, we think is a very important one. Because it gives you more leverage in the negotiation of recalls to force the manufacturer to do a better job of getting the hazards off the shelves.

SEN. KLOBUCHAR: Mr. Plunkett.

MR. PLUNKETT: On the traceability issue, senator, in our testimony we recommend that the bill be improved by requiring the traceable code on both the package and on the toy.

SEN. KLOBUCHAR: And I agree with you on that.

MR. PLUNKETT: And I think you've hit -- you've already hit on why that's important. I'll just add one more thing. My son had two toys that were recalled. Both were gifts and in one case the gift -- the packaging was removed from the gift as part of a birthday party bag that, you know, that the present was put into.

So we had no way -- if the code had only -- in such a circumstance, were only the package, we would never be able to trace the product.

SEN. KLOBUCHAR: And I also believe that it just leads to more anxiety for parents if they -- you know, they are just trying to figure out. They hear about a recall, they look on a website. And if they could just know then they could -- they feel like at least they are doing the right thing for their kids. So, Mr. Korn.

MR. KORN: Thank you, ma'am. The bill as it is written right now, does have an "or" provision in it that could -- I think that is a pretty easy change that we would support to make it an "and" to get to that situation, where the packaging is thrown out and you can do some identification in the home, which is where the difficult problem is.

It is a -- retailers do a generally good job of getting their product off the marketplace. It is getting them out of the day-care centers, out of the homes. These are just recall products in my home, I pay attention to this type of thing, that is where the recall products are.

I can almost guarantee you we could go to the Senate day-care centre and we could find three or four, possibly more recall products in there. People just don't know.

Number two, is in -- Chairman Pryor, missed this conversation when we were out. So I just want to emphasize it for one second. There is a bill pending in the House; child safety seats come with product registration cards, so that when there is a recall, the manufacturer directly notifies the owner of that project that there has been a recall.

Or better yet, can directly mail the repair item if that is the best way to go. There is a bill pending there -- in the House that came out of the House Energy And Commerce Committee unanimously with bipartisan support, just marked up last week that would require this kind of thing -- not on all toys or products, I think it's impracticable for some of these types of things.

But for cribs, playpens, other durable products. Those type of products that are inextricably interwoven in a child's life. And I think there are some -- some use there. And I can provide that legislation to your staff.

And then finally, there is a provision in your bill that is very good and allows the compliance staff at the CPSC to revisit a recall that has not been effective. And maybe work with the manufacturers again to say, you know, what we did, time one wasn't good enough, we still have cribs out there, we still have playpens out there, let's revisit it and try to give it another try.

We also might want to think about adding this Section 19, the prohibitive acts section, failing to substantially comply with a corrective action plan, could be a Section 19 prohibitive act, so.

SEN. KLOBUCHAR: Mr. Thompson, just one last question that was raised by -- Mr. Mierzwinski raised this issue of how they were -- the concern about some of the recall products being on the shelf. And I know that a lot of the retailers that Mr. Korn mentioned have been doing a good job.

But I have heard from the retailers, their concern about the average time it takes for the Consumer Products Safety Commission to recall a product after a problem was reported. Do your member feel -- members feel that it is an acceptable amount of time?

MR. THOMPSON: I would think that they do not believe that. It's -- right now in most cases it's an acceptable amount of time. But I think --

SEN. KLOBUCHAR: I think it's approximately six months. That is what I've heard.

MR. THOMPSON: It does depend. But I know on one recent case it was six months. And we just felt that in many ways that is way too long. And it gets to the point of what Mr. Korn was saying as, we will, once we determine there is a problem, we will remove -- our stores will remove that -- those goods from the shelves.

But to get the point of where you need to get that information out to the public, so it can get out of the day-care centers and the homes. CPSC generally frowns upon retailers from taking that action on products that are under their jurisdiction.

They feel that is their responsibility. So we are hitting on them to be able to do that. So we can not only can -- so we can also prepare to receive those goods back from our customers. And any measures that the legislation uses to streamline that process and make it quicker and more effective -- even on the fast track will be helpful.

Because we don't want to have to bottle up and rely and wait months and months and months for CPSC to be able for them to announce a recall notice.

SEN. KLOBUCHAR: Thank you very much.

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