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Posted Date: 4/7/2010

PRODUCT SAFETY'S OWN WORST ENEMY

contributed by Kevin M. Burke, President & CEO, American Apparel & Footwear Association, kburke@apparelandfootwear.org
 
 
WARNING:  The topic of the article you are about to read has been known to cause severe discomfort and nausea.  Use extreme caution before proceeding.
 
With a warning label like that, I am surprised you are still reading.
 
Proposals for warning labels like this are just one of the many headaches — disguised as solutions — spurred by the product safety debate raging in the United States, and elsewhere. Other proposals include increased reporting of chemicals, more intensive testing, and expanded enforcement, and legislators rushing to “improve” product safety regimes. The end goal — to make products safer — has been masked by the many layers of bureaucracy and burden that are imposed upon the business community. Compliance with these excessive regulatory hurdles often does more harm than good and does not necessarily result in safer products, especially when the products were already safe.
 
We all remember 2007 when the news was dominated by episodes of pet food recalls and imports of toys contaminated with lead paint. In response, Congress acted to revamp the nation’s product safety system to ensure that contaminated products would never again be placed on store shelves. The resulting Consumer Product Safety Improvement Act of 2008 (CPSIA) was well-intended and has brought about many positive improvements to consumer product safety, such as fully funding the Consumer Product Safety Commission (CPSC). But the legislation also has resulted in many unforeseen consequences, and it has been unnecessarily unforgiving in regulating the apparel and footwear industry — an industry that historically has been safe.
 
While we agree that a lead standard for children’s products is necessary, the impact went far beyond intentions and stymied our manufacturing processes. First, the progressively stricter lead standards set were arbitrary limits not based on any known “safe” level of lead. Some of new lead limits may not even be technologically possible for industry to obtain in certain products or materials. 
 
Second, the phase-ins were designed to be retroactively applied. Under these contradictory provisions, even if a product was compliant — and therefore “safe” — before a phase-in date, it could be deemed “unsafe” once the date passed. 
 
Third, there was no built-in flexibility. The CPSIA was to be applied to every component of every product intended for any child 12 and under no matter of the risk of exposure.  Finally, a burdensome onus was put on the manufacturer to verify that every product satisfactorily met the lead standards. 
 
Even worse, at the time the CPSIA went into effect, the CPSC was understaffed, under budgeted, and had only two commissioners to guide enforcement efforts. As the agency responsible for implementing the CPSIA, the CPSC needed greater resources and all five commissioners. Thankfully, the CPSC’s budget has expanded some, and for the first time in over 20 years five commissioners are now seated at the CPSC.
 
As we mark just over one and half years of implementation of the CPSIA and one year since the first major reduction in lead limits on February 10, 2009, small victories have sustained an industry struggling with its ramifications. Through persistence, the American Apparel & Footwear Association (AAFA) has served as a consistent voice for positive and meaningful improvements to both the CPSIA and product safety in the apparel and footwear industry. 
 
For example, apparel and footwear industry stakeholders have been able to demonstrate that textiles and fabrics do not contain lead, therefore reducing the third-party testing and certification needed for apparel and footwear products. Furthermore, AAFA has worked with the CPSC to issue a stay of enforcement for the third-party testing and certification provisions of the CPSIA with regard to certain standards that apply to apparel and footwear. As a result, the producers of children’s apparel and footwear have been able to use their own testing programs to ensure compliance while the CPSC works to issue critical testing guidance.
 
While this stay of enforcement is temporary, the industry has benefited from the time it has allowed us to build programs to comply with these new regimes. It is important that the industry use this time wisely.
 
Since the CPSIA entered into force, AAFA has launched an aggressive educational outreach program in the United States and abroad aimed at teaching the industry about product safety. In our industry, product safety is engineered into products during the design phase. While the CPSIA only concerns itself with the end product, we have to keep our supply chain at the front of our minds when making product safety decisions. Only our complete understanding of upcoming changes will help us survive.
 
Through AAFA’s continued publication of our free semi-annual Restricted Substances List (RSL), the industry has access to all the international chemical regulations that apply to apparel and footwear products. This has been a critical tool at the cross section of product safety and sourcing. With more than 97 percent of apparel and 99 percent of footwear sold in the United States each year produced internationally, knowledge of these regulations has been a great benefit to the industry.
 
Despite industry’s progress, we still have work to do to streamline product safety regulations. Doing business in states such as California and Illinois means compliance with CPSIA is not enough. State regulations, particularly California’s Proposition 65, have significantly burdened interstate commerce with independent warning label and chemical content requirements. Additionally, prompted by the recent headlines about cadmium in children’s jewelry, many are eager to regulate cadmium — the “new lead” — in children’s products. Who knows what next season’s “cadmium” will be? 
 
Experience has taught stakeholders, including regulators, how to better implement product safety regulations going forward to achieve the goal of improved product safety without setbacks in public health.  Heeding the comments relayed by AAFA and other product safety stakeholders over the last year, the CPSC is hopefully on its way to constructively working through the many challenges that have beleaguered our industry.  
 
Based industry feedback, the CPSC submitted a report to Congress just over one month ago expressing its own frustrations with the CPSIA and its lack of clarity and flexibility.  The report itself contained the bipartisan unanimous recommendations of the Commission on how to facilitate a more orderly implementation of the CPSIA and provide the CPSC with greater enforcement capabilities.
 
In the Commission’s report, there were two significant requests to allow for better enforcement of the CPSIA — two requests that AAFA fully stands behind. First, the CPSC is seeking greater flexibility within the lead exemption sections of the CPSIA so that the Commission can grant exclusions from the lead content limits for products that are not compliant because they exceed the lead standard but are safe because they do not pose a risk of lead poisoning for children. Second, the CPSC also requested that the 100ppm standard that goes into effect August 14, 2011 be applied prospectively instead of retroactively. By granting these two requests, Congress will demonstrate that it is serious about achieving meaningful improvements in product safety with the business community as full partners in this effort.
 
As the CPSC urges Congress to make needed adjustments to the CPSIA, the U.S. apparel and footwear industry remains committed to making safe clothing and shoes for hardworking American families. Product safety is a priority for our industry and our consumers and we do not let our consumers down.
 
About Kevin Burke
Kevin M. Burke is the president and CEO of the American Apparel & Footwear Association (AAFA), headquartered in Arlington, VA. Since Mr. Burke joined the AAFA in June 2001, AAFA has grown its membership base, its member programs, its financial position and its standing on Capitol Hill.
 
Burke is a career government relations professional with 30 years of experience in Washington. He previously served five years as vice president, government relations, for the Food Distributors International, a trade association representing wholesalers of food to independent grocers and restaurants. Burke was responsible for all aspects of the association’s outreach to Congress and the federal agencies on issues ranging from ergonomics to tax law and more. He also significantly expanded the scope of the association’s political action committee.
 
From 1987 to 1995, Burke was vice president of government relations for the American Bakers Association. While there, he spoke on behalf of wholesale baking companies on legislative and regulatory issues, ranging from family/medical leave to transportation policy. Before that, Burke managed the government relations office of the National Association of Broadcasters. This role included coordinating visits by association member executives with members of Congress, as well as fundraising and advocating on behalf of members to lawmakers and the administration.
 
Burke also worked as a legislative assistant, and later, press secretary to Representative Norm Lent (R-NY). He began his career in 1979 at the Republican National Committee and the Reagan-Bush Presidential Campaign.
 
Burke currently serves on the Boards of the American Apparel Education Foundation, Boys Hope Girls Hope, the Congressional Institute, the Fashion Institute of Technology’s Educational Foundation for the Fashion Industries, the International Apparel Federation, Kids In Distressed Situations, and the U.S. Chamber of Commerce’s National Chamber Foundation. He is also a member of various political and trade association CEO groups in the Washington, DC area.
 
Burke received a master’s degree in public administration in 1983 from the American University in Washington DC. He also holds a bachelor’s degree from the State University of New York at Brockport.
 
Married, with two children, Burke resides in Great Falls, VA, and enjoys golf, biking and running.

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