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ACTIVISM: Consumer Product Safety Improvement Act
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Miracle
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PostPosted: Mon Nov 24, 2008 11:43 am    Post subject: Reply with quote

Why is the assumption being made that every style must be tested as a finished garment?
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Esther
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PostPosted: Mon Nov 24, 2008 11:55 am    Post subject: Reply with quote

The assumption on completed unit testing for clothing is because that is what is required for toys as quoted previously. My testing quote is based on a combination of unit tests and component tests. When it comes to clothing some tests cannot be easily done on completed units, especially flammability.

The thing is the CPSC has not said, in regards to clothing, whether the testing can be done on components. One has to assume the worst case scenario with testing children's clothing until an exception is made. The cost will be higher because with children's clothing you will have to submit at least 1 completed unit and swatches of the components. When I was a part of the private label program with JCP 8 years ago we had to submit a completed unit and at least 1 yard of each fabric. We averaged about $1000/style in testing costs 8 years ago. That number spread out over 20,000 units or even 2,000 units is doable. Not so much when it is 200.
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Miracle
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PostPosted: Mon Nov 24, 2008 12:23 pm    Post subject: Reply with quote

Ok, that is understandable with regards to toys, but the number given for apparel seemed to imply that you tested every single style, not the components or fabrics. If you're using certain fabrics repeatedly and certain components repeatedly, then the costs are not as high as what is being stated, unless I'm missing something.

I don't find the numbers credible. And when I mentioned the CPSIA to a couple (yarn and fabric) manufacturers, they replied saying they knew about it long ago and had already undertaken intertek testing and certification for certain fabrics (also because of the requirements of other countries as well). And because of the impact of the law, they would share the cost of testing on other fabrics they had not been certified.

Therefore, I'm not sure where all of this "the sky is falling" comes from. I think there are other avenues that should be addressed, but I don't know that it's prudent to argue that we shouldn't have to test our items for safety because it would put us out of business.

I do think the industry can cope, but I know this means that buying fabric from jobbers would be too risky.

I guess my point is that I understand the impact of the law, but I'm not sure what you guys are asking for. I think that when it comes to components, it was assumed each individual garment producer would have to individually test each component for each style, thereby leading to redundancy with testing. This does not make sense.

I don't think the numbers generated in the "form letter" pan out and I think to send it could really hamper credibility, if in fact the numbers are wrong.

Again, I think this is an interpretation issue and everyone moved full steam ahead without checking to see if the interpretation is, in fact, correct. It sounds absolutely ridiculous that this law would require the number of tests specified in the form letter. And while it may very well require that, I didn't see that anyone even bothered to check to find out if it does.


Quote:
These costs multiply exponentially if companies are now required to test fabrics and threads for lead, or if different dyes also trigger their own lead tests. Going back to the previous example, if each style contains six components – body fabric, lining, knit cuff, thread, snap, and zipper, as well as 5 possible dye options – the number of tests increases to more than 300, or $108,000 to for just 10 styles in addition to the actual costs of production
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Kathleen F.
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PostPosted: Mon Nov 24, 2008 12:47 pm    Post subject: Reply with quote

miracle wrote:
And when I mentioned the CPSIA to a couple (yarn and fabric) manufacturers, they replied saying they knew about it long ago and had already undertaken intertek testing and certification for certain fabrics (also because of the requirements of other countries as well). And because of the impact of the law, they would share the cost of testing on other fabrics they had not been certified.

I think that when it comes to components, it was assumed each individual garment producer would have to individually test each component for each style, thereby leading to redundancy with testing. This does not make sense.

These are two different points (1st paragraph vs 2nd). The issue in the first is that *a producer cannot avoid liability by using the results provided by their vendors*. So, there will be a great deal of replicate testing when it would make sense for someone like YKK to provide those results to all their customers rather than each customer having to retest the things.

Based on what Jennifer Taggert said, one can test their individual components, per colorway, rather than completed products. If you have a lot of components, this isn't much of a savings or arguably, isn't at all. It's too difficult to quantify "average costs" so your point is well made.

Quote:
Again, I think this is an interpretation issue and everyone moved full steam ahead without checking to see if the interpretation is, in fact, correct. It sounds absolutely ridiculous that this law would require the number of tests specified in the form letter. And while it may very well require that, I didn't see that anyone even bothered to check to find out if it does.

I have private correspondence going btwn the Counsel General (Falvey) and a number of attorneys representing large apparel concerns that I am not permitted to release *at this time*.

The sense I get from it is her interpretation is heavy handed, over the top which is puzzling as it doesn't follow the path of her previous judgments leading some to suspect the rulings are politically motivated. Falvey is a political appointee; proposed replacements for her position and others in the CSPC has already been a topic in the press (unrelated to this issue).

It is purely conjecture and rumor but some are saying that the rulings on the regulations are intentionally conservative with the political goal of undermining the future Obama administration because this issue has the potential to blow up 20 days into his administration. Most Americans won't grok that this law preceded him, they'll just blame him since it happened on his watch. Conversely, if he does act expeditiously on the rules for implementation, Obama will be criticized for the seeming relaxation of consumer protections before the ink is dry on his inauguration papers. Either way, he can't win.
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Esther
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PostPosted: Mon Nov 24, 2008 1:01 pm    Post subject: Reply with quote

Manufacturers of any regulated product will need test their product under a reasonable testing program. The duplication in testing comes when each supplier tests their product, duplicated by the manufacturer and then the retailer. Now the retailer gets an out because they are only required to have copies of certificates, but they will still be liable if something goes wrong.

So if I buy fabric, trim, and buttons from various suppliers that have each done testing and they supply me with a certificate of testing, I will still have to re-test everything. This is especially true with children's clothing manufacturers. I can't rely on my suppliers testing because I have no way of knowing if the testing was certified for children's products. In fact most fabric suppliers do not certify their fabric for any end purpose even though they do their own testing. Besides that, as a manufacturer I am required to test each completed style in a certified testing lab with the assumption I test the products according to the most stringent requirements and standards out there. These means that I should do tests that are not necessarily required by the CPSC at this point in time, adding to the cost.

The minimum testing cost for a 10 piece line is $1000/style or $10,000. The number will be higher because there are only a few certified labs and they will be backed up. Supply and demand dictates the cost will rise. I have seen some "indie" children's DE's that use as many as 10 different fabrics in one style. Each fabric will have to be tested for lead at a minimum (10 surfaces will cost between $700-$1000 for lead testing). Every style will vary in the testing required and will increase dramatically with the complexity of design.

The sky is not falling but one MUST assume the worst case scenario and ask for an exception for apparel. Otherwise the regulations will be written and it will take an act of God to have Congress change the regulations back to something more reasonable.
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Miracle
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PostPosted: Mon Nov 24, 2008 1:04 pm    Post subject: Reply with quote

Quote:
These are two different points (1st paragraph vs 2nd). The issue in the first is that *a producer cannot avoid liability by using the results provided by their vendors*. So, there will be a great deal of replicate testing when it would make sense for someone like YKK to provide those results to all their customers rather than each customer having to retest the things.


Right, but there is a difference between "avoiding liability" and being required to test it again.

Does the law state that for apparel a manufacturer must test each component themselves or that it must be tested?

Typically, in manufacturing, when you're trying to get product liability insurance, there are industry practices and principles followed as part of product liability standards. This ensures record-keeping of certifications of components, lot tracking and for us that would mean detailed bills of materials to be able to track precisely where components came from.

But I am not sure that means "test it again". There is a difference between being liable (which even testing again wouldn't alleviate) and being legally required.
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J C Sprowls



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PostPosted: Mon Nov 24, 2008 1:05 pm    Post subject: Reply with quote

As you say, Miracle, I think most of what we are writing or objecting to lacks focus. I think that anyone who has a complaint about a procedure also has the duty of identifying the problem and offering a solution to be considered. To that end, I'm pasting a snippet from a draft letter I'm working on for the CO Attorney General:

Quote:
A layman’s interpretation of the Act infers to all Producers – whether the consumer product is intended for use by children or adults – that not only should each component used in the product’s manufacture be tested; but, also each completed style or pre-market prototype. I suggest that while the spirit of improving quality and mitigating safety concerns is great; but, a fundamental understanding of how the industry operates has lead to an inaccurate, loose cannon approach to regulation and a subsequent enforcement model.

To offer context: An apparel line may consist of 5 styles (e.g. pant, 2 shirts, jacket, etc.) in 3 or 4 color options for each style. Under this Act, these options are multiplied out to 15 or 20 distinct products to be released into the market, even though they resemble each other in style, composition, fabrication and materials. By focusing on the end product instead of the components, the cost of compliance is similarly multiplied.

In manufacturing, though, it’s common practice to reuse components throughout the entire product line. In other words, if a jacket uses a particular interfacing material to support the pockets, that same material will also be incorporated into the waistband of the pants. Not only is this a prudent design philosophy; but, it is also driven by sound business and operating principles. The standardization of material inputs enables the Producer to contain logistics (e.g. shipping, simplified inventory, etc.) and operational costs (e.g. equipment setup, etc.), improving the profitability of their business.

Our chief concern is that testing – which is an expensive process – appears to be required by this Act at both intake and output points along the entire supply chain. In other words, if a manufacturer of a component tests each component they produce before being able to sell it to a supplier; and, that supplier provides the Producer, in this case a business-to-business consumer, with the same certification they were supplied, we feel this should meet some portion of the requirements for compliance. According to my customer base, they would opt to use a supplier or mill that performs output testing over one who would not, meaning that the supply chain would hold itself accountable for quality, integrity and compliance with this Act.
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Miracle
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PostPosted: Mon Nov 24, 2008 1:07 pm    Post subject: Reply with quote

Quote:
The sky is not falling but one MUST assume the worst case scenario and ask for an exception for apparel. Otherwise the regulations will be written and it will take an act of God to have Congress change the regulations back to something more reasonable.


With the recent findings of formaldehyde in Victoria's Secret bras I don't think that there will be an exemption for apparel. Why should there be?

I think it's prudent to ask for a reasonable standard for apparel not complete exemption.
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Miracle
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PostPosted: Mon Nov 24, 2008 1:09 pm    Post subject: Reply with quote

JC:

You and I are on the same train of thought regarding this.

We are DEAD ON, especially with business shifting to mills that would provide certification (see above post about jobbers).
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J C Sprowls



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PostPosted: Mon Nov 24, 2008 1:41 pm    Post subject: Reply with quote

To me, it's always a matter of: a) what is the problem, b) do I need to manage it; and c) how to manage it.

This Act was obviously hurried through - sloppy language is one indicator of this. Regardless the integrity of the Act or its language, it's on the books, so it's a real problem.

When confronted with a crisis (and, this is a crisis) there are really only two options: get over it, or under it. And, in my mind, that means we have two options when it comes to this Act. Either we: a) offer a better, more articulate alternative (i.e. develop a best practice), or b) react in a silo when/if our companies are caught.

Most of my customers have told me that they prefer option B because they know it will cost money to comply. They also feel it will be easier to wait until they're caught because the CPSC will be forced to tell them at that time what they need to do to come into compliance. IOW: the costs - when they are incurred - are likely to be cheaper than the time and money invested in chasing after interpretations that might be overturned when the CPSC audits the company.

Personally, I have a hard time debating that logic. As it stands, I've spent about 60 hrs of unpaid time researching this matter, meaning that I've suspended revenue-generating activities and put my customers behind schedule. I've reached the threshold of what I can contribute and how much I can afford to care. After I submit this letter to the CO State Attorney's office, I have a backlog of work to get back to.

IOW: I'll deal with a decision when/if I ever receive one. In the meantime, I'll offer my suggestion (i.e. manage upward) and then go about my business until someone tells me, otherwise.

____ Edit to add:

All of my customers have agreed to my suggestion to obtain either lab results from their supplier on each component (if available) or to obtain 3rd party tests on the components when the supplier cannot produce them. So, if this due diligence is insufficient, we (meaning me & my customers) will cross the bridge when/if the CPSC tells us we have one (and, its dimensions, etc.).
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Kathleen F.
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PostPosted: Mon Nov 24, 2008 1:53 pm    Post subject: Reply with quote

miracle wrote:
You and I are on the same train of thought regarding this. We are DEAD ON, especially with business shifting to mills that would provide certification (see above post about jobbers).

Okay, not just you two, I think everyone else would concur that this is the way it should go!

Quote:
Right, but there is a difference between "avoiding liability" and being required to test it again. Does the law state that for apparel a manufacturer must test each component themselves or that it must be tested?

I suppose there is a nuance of difference btwn the two but it's put in terms of "to avoid liability one must test" but who knows how this will be enforced, that's the issue. For example, say an inspector is going over your guarantee certificate and you list your supplier's data rather than your own, will your product be stuck in a bonded warehouse until you generate your own results? That is the sticking point, the interpretation of the inspector which remains unclear. And at this point, they're saying you have to have your own results, that your supplier's won't suffice.

Somewhat related: One of the other things manufacturers are upset about is that the CSPC will not have a database of common componentry (say the commonest ykk zipper) that has been certified safe reducing the need of replication of testing for components.

Esther wrote:
The duplication in testing comes when each supplier tests their product, duplicated by the manufacturer and then the retailer. Now the retailer gets an out because they are only required to have copies of certificates, but they will still be liable if something goes wrong.

I haven't seen anything that states a retailer is required to test incoming product (unless they manufacture the item in which case they are the manufacturer). Also, I haven't seen interpretations of the rules that state retailers are liable for the veracity of upstream suppliers; they're on the hook for collecting the certificates.
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Miracle
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PostPosted: Mon Nov 24, 2008 2:11 pm    Post subject: Reply with quote

Quote:
I suppose there is a nuance of difference btwn the two but it's put in terms of "to avoid liability one must test" but who knows how this will be enforced, that's the issue.


I guess my point is, if your product causes harm, you are liable whether you tested or not. Your insurability for product liability has to do with your manufacturing practices and whether you follow proper record keeping. And if you don't have proper practices, typically the insurer does not cover you.

CPSC fines are a different issue, but I was trying to make a point that as a manufacturer, you don't escape liability just because you tested, you might escape CPSC fines.
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Esther
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PostPosted: Mon Nov 24, 2008 5:16 pm    Post subject: Reply with quote

Quote:
I haven't seen anything that states a retailer is required to test incoming product (unless they manufacture the item in which case they are the manufacturer). Also, I haven't seen interpretations of the rules that state retailers are liable for the veracity of upstream suppliers; they're on the hook for collecting the certificates.


And this another crux of the problem because if there is a recall or a problem product the retailers will be thrown into the group that gets sued. They can say they have certificates but it may not make much difference. I personally know of a burn suit (company now defunct) in which everyone in the entire product cycle was held liable. Retailer, manufacturer, and fabric supplier. But really the fault lay with the parents who left their child unsupervised with matches near a fireplace. Things become highly emotional when a child gets hurt.

The retailers are on the hook for having a paperwork trail of certificates, but what does that really mean?

J - I know others that are testing components instead of units. It is a wait and see approach but one that will have to cleared up by the CPSC. Wal-Mart and Target has started lead testing programs prior to the passage of the bill and they had to seek a waiver from the CPSC to have that testing accepted.
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Miracle
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PostPosted: Mon Nov 24, 2008 5:51 pm    Post subject: Reply with quote

Quote:
And this another crux of the problem because if there is a recall or a problem product the retailers will be thrown into the group that gets sued. They can say they have certificates but it may not make much difference. I personally know of a burn suit (company now defunct) in which everyone in the entire product cycle was held liable. Retailer, manufacturer, and fabric supplier. But really the fault lay with the parents who left their child unsupervised with matches near a fireplace. Things become highly emotional when a child gets hurt.

The retailers are on the hook for having a paperwork trail of certificates, but what does that really mean?


Retail has always held a level of pass through liability, for the retailer that was NOT also the manufacturer.

Honestly, everybody is getting called on the carpet due to the irresponsibility of the few. It's unfortunate, but some of the things that happened were so egregious that it could no longer be ignored.

Add that to the fact that we live in a litigious society and now look where we are.

IMO, and this is just MO, I think it's more prudent to push for an adoptable standard that can be applied to the supply chain. Not to alleviate people like us of responsibility, but to ensure that we're not unnecessarily testing the same item multiple times.

In that instance, then your completed item would then be subject to the tests that were still applicable.

I do understand the mentality of the wait and see, because there are many laws that were eventually clarified, revised or amended. The problem is (and this is a general problem, not just apparel) is that small business has no lobby. Sure we can join the larger associations, but they speak for their larger members.
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SarahM
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PostPosted: Tue Nov 25, 2008 7:16 pm    Post subject: Phthalates Reply with quote

General Counsel Letter on the Section 108 Phthalates and "Wearing Apparel" (http://www.cpsc.gov/library/foia/advisory/321.pdf)
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