Assembly Standing Committees on Environmental Conservation, Health and Consumer Affairs and Protection
An Examination of the State’s Role in Issues Related to the Regulation of Children’s Products
Darren Suarez, Director, Government Affairs
December 5, 2011
Chairman Sweeney, Chairman Gottfried, Chairman Dinowitz and members of Committees on Environmental Conservation, Health, and Consumer Affairs and Protection. I am Darren Suarez, Director of Government Affairs for The Business Council of New York State. The Business Council is the leading business organization in New York, representing the interests of large and small firms throughout the state. Its membership is made up of thousands of companies, as well as local chambers of commerce and professional and trade associations.
As an organization dedicated to advancing an economic climate that encourages opportunity, entrepreneurship, consumer choice and innovation, I offer testimony today to articulate our serious concerns about the development of a New York-specific approach to chemicals.
States should be cautious in their approach to the regulation of chemicals. Hasty approaches to the regulation of chemicals in New York are likely to prove costly, provided limited value, and create deadweight loss. The Business Council does not support Assembly bill 3141. Additionally, The Business Council does not endorse a chemical-by-chemical approach; this approach has many downsides.
We strongly believe that independent, well-financed national and or international regulatory bodies dedicated to the protection of human health, including a focus on sensitive populations, should review suspected health hazards when legitimate concerns are raised.
Innovation and the adoption of the products of chemistry — from flame retardants, to bike helmets, to battlefield technologies — have helped save lives. This point can not be lost. The business of chemistry today touches more than 96 percent of the products that we all use every day and accounts for thousands of new products and innovations, so it’s imperative that chemistry be used safely and responsibly.
More than a dozen federal laws create a safety net to oversee the safe use of chemical products, including:
The Toxic Substance Control Act (TSCA), which gives the U.S. Environmental Protection Agency (EPA) authority to review and regulate chemicals in commerce. TSCA was designed to ensure that products are safe for intended use. Critics of TSCA are correct that it should be updated.
The Business Council supports efforts to update TSCA to keep pace with scientific advancements; this does not mean rejecting TSCA, but rethinking it. Simply, technology and world trade have vastly changed since 1976, and now is a good time to review this important Federal Act.
TSCA should be reviewed during a sanguine period of political discourse and not during a reactionary period.
The Consumer Product Safety Improvement Act
The Consumer Product Safety Improvement Act (CPSIA) and Maine’s Kids Product Safety Act both provide cautionary tells of reactionary legislation that fostered uncertainty in consumers, retailers, and manufacturers.
The CPSIA’s passage followed a period of record numbers in recalls of hazardous products that injured children. Consumers clearly lost confidence in the safety of consumer products, particularly children’s products.
In response Congress, after a year-long deliberative process and approximately 15 hearings and markups, enacted the CPSIA. This law almost immediately created uncertainty in the market place.
Almost immediately, concerns were raised about the application of CPSIA lead-limit requirements for libraries and used book stores because some older books were printed with inks containing lead in excess of the new lead content limits.
When Congress drafted the CPSIA, limited consideration was given to the potential for exposure. Without this consideration objects that pose no harm are treated as dangerous.
Books were one of the first casualties of the CPSIA. Thrift stores and other resellers and distributors of used books were ordered to discard children’s books printed before 1985 (unless they wished to test for lead or take other typically unpractical steps such as contacting manufacturers).
Many older children’s books have painted decorative titles and other cover embellishments that contain extremely small quantities of lead, which is unlikely to result in exposure.
It was not until August of this year that an Act of Congress and the President provided the publishing and printing industries with the certainty that they looked to obtain, but this happened after countless used chapter books were destroyed.
Maine’s Kids Product Safety Act
The passage of Maine’s Kids Product Safety Act resulted in an increased level of uncertainly in the business community. Maine’s job creators urged the legislature to alleviate this significant deterrent to investing in Maine. Specifically, Ben Gilman of the Maine Chamber of Commerce said: “With the 1,751 ‘chemicals of high concern’ list hanging over their heads, why would any business make an investment or take a risk here not knowing when or if the chemicals they use in their products would be next.”
The Maine legislature reacted to the valid concerns of businesses with a retooling of the legislation. The Act originally contained a list of more than 1,700 chemicals considered potentially dangerous to kids. But the amended bill narrows the list to 70, based on those chemicals with the strongest evidence of toxicity and exposure to children. Additionally, the amended legislation included:
- An exemption of inaccessible product components;
- A provision for a de minimis level of chemicals in products;
- A clarification that the focus of the law is on “intentionally-added” ingredients; and
- A requirement that credible science be used in the Maine DEP’s decisions.
Many of the problems realized with CPSIA and with Maine’s Kids Product Safety Act are contained in A. 3141.
To start, the definition of “children’s product” is defined very broadly in the bill, to include any item, its component parts and packaging, designed or intended for use by children aged 12 or younger.
Under such an expansive view, how would a manufacturer, importer or distributor be able to determine whether or not a personal care product, such as soap, shampoo or toothpaste is intended for children? This will affect entire sectors in manufacturing, business and retail that may be required to discontinue commonly used products.
The CPSIA contained a similar definition and subsequently resulted in the destruction of numerous books intended for young adults who were not at risk to exposure from possibly a small amount of lead paint contained on the book cover.
The bill does not contain a de minimis concentration exemption. The European Union’s R.E.A.C.H. program sets an upper limit of 0.1 percent for substances of very high concern, including carcinogens, mutagens and reproductive toxins.
De minimis concentration exemptions are important as they can provide certainty to manufacturers of products that contain recycled content. Maine amended its legislation to include a de minimis exemption, because it is logical. If a product contains a chemical at such a level that poses limited concern for human health and the environment, then it serves no purpose to remove it.
The legislation specifically excludes in the definition of “children’s products” consumer electronic products enclosed with a secure housing, because the sponsor acknowledges that although electric items (games, phones etc) contain circuit boards that may contain lead, users of the product are unlikely to be exposed to circuits.
Very simply, all things are poison and nothing is without poison; only the dose makes a thing not a poison. Dose is dictated by the pathway to exposure. If a person can not access an item they will not receive a large dose. This bill does not allow the regulatory bodies to consider the potential risk as a result of exposure.
Does the State of New York have the Knowledge?
This bill would give state agencies broad authority to undergo a chemical review process they are unequipped to handle. New York would have to undertake an expensive, highly scientific review to make concrete determinations about the toxicity of chemicals and their potential harm to the public.
New York does not have the financial resources or expertise to execute such a review. Moreover the bill establishes no baseline for what information would be found acceptable to make decisions about toxicity or exposure. What are the established scientific-based standards of review?
As an organization dedicated to working to advance an economic climate that encourages opportunity, entrepreneurship, consumer choice and innovation, we caution against the establishment of broad regulatory powers.
Wide open definitions and broad administrative powers lead to costly uncertainty. The approach contained in A.3141 will create deadweight loss; the people of New York will receive less marginal benefits resulting from legislation than the true marginal cost. The state and private sectors limited resources should be focused upon the real causes of child mortality and injury, like accidents, which have become less fatal as a result of the manufacturing of products that are dependent upon chemicals (helmet, airbags).