Question No. 3. Unlike the Magnuson-Moss bill, the Administration bill does not specifically authorize the planning, design, construction, or operation of facilities suitable for research, development and testing of consumer products. In what ways does this exclusion place a different emphasis on the activities of a product safety program in HEW versus that proposed in S. 983?

Answer. Such authority is not included in the Administration bill because it is unnecessary. One of the substantial advantages that the Administration bill (S. 1797) presents is that implementation would be obtained by expanding our current facilities for research, development and testing consumer products. The Department already has authority to lease such laboratory facilities as the program demands dictate.

Question No. 4. How would the lack of technical facilities constrain or limit a product safety program in the Department of Health, Education, and Welfare? Answer. Technical facilities are needed for two fundamental purposes: (1) to develop test methods for standards; and (2) to test products for compliance. FDA's Bureau of Product Safety already has entered into an interagency agreement with the National Bureau of Standards to develop test methods for children's products. This arrangement could be considerably broadened (Section 20 of the bill specifically authorizes use of facilities available in other Federal agencies). FDA also has numerous laboratories in the Field which could serve this new program. In addition we could use the extensive facilities already available in the private sector (e.g. the Franklin Institute, Illinois Institute of Technology, Battelle Memorial Laboratories, and Cornell Aeronautical Laboratories). No constraint on this part of the product safety program would be anticipated.

Question No. 5. Secretary Richardson stated before the Commerce Committee on July 19 that "the cost of monitoring the private independent laboratories that would conduct the Commission's certification program would be high." Would you please supply for the record a cost-benefit analysis substantiating this statement?

Answer. The monitoring of private independent laboratories would require three kinds of activity: (1) the establishment of "standards" for laboratory facilities, equipment, personnel, and performance, (2) the evaluation of the individual laboratory to determine whether each qualifies under the "standards," and (3) the development and operation of a reference standard system under which the actual conduct of each laboratory could be continually monitored.

We do not have a cost-benefit analysis at this time. Such an analysis would be expensive and time consuming because we lack fundamental data such as the numbers of new products that would be involved and the number of laboratories that would request certification. The Secretary's statement was based upon management judgment considering the potential magnitude of the task.

In an attempt to be of maximum assistance to the Committee, we have obtained some information on the Australian laboratory certification program for comparison. (This is the only "national" program we know of.) The Australian National Association of Testing Authorities evaluates only the discipline capability of laboratories (Activity 2 in first paragraph). It administers to approximately 800 laboratories, and considers 60 new ones each year. It utilizes 500 voluntary accessors (from industry and universities at no cost), has a staff budget of $140,000 and recertifies every three years. Australia has only about 8 percent of the population of the U.S. and about 3 percent of the GNP. The laboratory program does not include reference sample evaluation (activity 3).

Question No. 6. Secretary Richardson stated that he was opposed to the premarket certification provisions of the Magnuson-Moss bill. What are the various different types of premarket certification and to which ones are you opposed? Answer. The different types of premarket certification and our analysis thereof are as follows:

1. Require that manufacturers and importers of all products within the jurisdiction of the bill submit those products to the Government for clearance before they can be entered into commerce.

Such a broad requirement would mean that hundreds of thousands of products would have to be thoroughly tested or evaluated each year by a very competent technical staff. Although we do not have exact information on the number of products which would be involved or the size of staff which would be required. it would be very expensive to implement, perhaps approaching $1,000,000,000. The majority of products would be readily cleared, but all would have to be thoroughly checked. Manufacturers would be encouraged to submit less developed and poorly researched products to "see how they fly," thereby resulting in a significant increase in products rejected.

2. Require that manufacturers and importers obtain a "seal of compliance" from a private laboratory which has been accredited by the Government as having the skills and resources necessary to test for compliance with the standard.

The accreditation of laboratories for the purpose of identifying those that have the skills, the resources, and the proven experience and desire to competently and honestly test certain products to determine conformance or nonconformance to published standards is a matter that has been under serious discussion for some time. Such a system has been used successfully for cement, concrete, and bituminous products. This system has the advantages that a small manufacturer can receive technical services equal to those of his large competitors, a seal or logo can be authorized to upgrade public confidence in products and the program, and the producer bears the expense of product testing.

However, there would be certain necessary expenses in the establishment of a system of laboratory accreditations and product certification, and then minimum maintenance costs for collaborative references to test the performance of the accredited laboratories. It would be extremely burdensome to accredit laboratories and to ensure that all accredited laboratories achieved the same quality of test results. With lab accreditation and subsequent product certification, the public would tend to assume full and complete product safety. This could be giving greater credence than such a system could furnish, since any product certification plan must be backed up by a sound quality assurance program by each manufacturer.

3. Require manufacturers to state, on the product or its packaging, that such product meets specific standards (self-certification).

Most reputable manufacturers now do this kind of certification as a minimum although they do not specifically identify the applicable standards. Given the range of criminal and civil penalties in both bills, manufacturers would have considerable incentive to take steps necessary to assure that their products meet the tests prescribed by the applicable standards. Accordingly, requiring them to certify compliance may offer no additional guarantee of conformity of their products but instead may lessen the diligence of the distributor who chooses wholly to rely on it.

Senator Moss. We have one more very important witness, and I am sorry to go right on through, but my schedule is such this afternoon that it is going to be necessary to continue and complete this hearing this morning.

Mr. Arnold B. Elkind, Chairman of the National Commission on Product Safety, will be our next witness, and Dr. Henry Hill is here with him, a member of that Commission.

I am delighted to welcome you, Dr. Hill and Mr. Elkind. We appreciate your appearance and apologize for the long wait we have had in getting you to the table. We look forward to your testimony.

STATEMENT OF ARNOLD B. ELKIND, CHAIRMAN, NATIONAL COMMISSION ON PRODUCT SAFETY; ACCOMPANIED BY DR. HENRY HILL, PRESIDENT, RIVERSIDE LABORATORIES

Mr. ELKIND. Mr. Chairman, I want to thank you for the opportunity to be here and present this statement.

My name is Arnold B. Elkind, and I served as Chairman of the National Commission on Product Safety from March of 1968 to September of 1970.

Sitting next to me is Dr. Henry Hill who is president of the Riverside Laboratories in Haverhill, Mass. I invited the other Commissioners to be here. Unfortunately, they were not able to do so.

I would like to say preliminarily, sir, that Senator Magnuson and Senator Cotton have certainly carried out their promises to the Com

mission that this would be one Commission whose report and findings would receive attention.

As you know, sir, the National Commission on Product Safety was authorized by Public Law 90-146. The seven-member bipartisan Commission was appointed in March of 1968, and transmitted its final report to the President and Congress on June 30, 1970.

I hope that by this reference I may incorporate as part of my submission, Mr. Chairman, the report of the Commission, the report on Federal consumer safety legislation prepared for the Commission under the direction of Howard A. Heffron, and the three volumes of supplemental studies of the Commission since I think they are germane.

Senator Moss. They will all be incorporated in the record by reference.

Mr. ELKIND. The Commission has identified and described a serious social deficit in our economic arrangements. The core of our learning was that a significant number of injuries and deaths each year could be avoided by channeling our technology toward the goal of hazard reduction in consumer products.

Our gut estimate was that the laissez-faire approach to consumer products costs the American public about 20 percent of the overall toll that the public pays in injuries or deaths for the privileges of enjoying consumer products. This translates into 6,000 lives, 22,000 permanent cripples, 4 million injuries, and $1.1 billion in treasure that could be saved each year by an effective system for making products safe to use. Parenthetically, it also means that 16 million injuries and 24.000 deaths may occur annually from using consumer products regardless of the care, skill and best efforts of our society.

Senator Cook. Mr. Elkind, and Mr. Chairman, I don't mean to interrupt you right here. I will just excuse myself and go vote and then the statement can continue, and I will come back immediately so the chairman could do likewise.

Senator Moss. If you would, I would appreciate it.

Senator Cook. I will excuse myself and be right back.

Mr. ELKIND. In our report and studies we have analyzed the reasons why competitive private industry cannot be expected to take the initiatives essential to hazard reduction.

In the year that has passed since the publication of our report no one has challenged our observation that the competitive marketing imperatives are eye appeal and cost as opposed to safety.

The consensus principle which dominates voluntary standardmaking gives aid and comfort to those in an industry who are reluctant, for one reason or another, to move to a higher plateau of safety for their product.

Finally, even where a standard has been adopted by an industry on a voluntary basis, there is no legal compulsion to dissuade a departure from that standard by either a member of the trade association sponsoring the standard or by a new entrant into the competitive arena.

The need for intervention into this problem area by the Federal Government is generally acknowledged by all men of good will who have considered product safety and its implications to the consumer.

I might add at this point, Mr. Chairman, if I may, and it is not in my remarks, that I have been furnished with a copy of President Nixon's

letter of July 19, 1971, in which he states that Secretary Richardson, with his approval, will create within the Department of HEW a new Consumer Safety Administration.

I want to say, sir, that apparently there is a lack of agreement between the administration and the Commission as to what our findings were and what the philosophy of our report actually is. We are concerned with a catch-up game. We see this problem as one that has come about by-chiefly by inaction over a number of years, and so that we see the need here for a task force operation. Something that will be over and above the usual bureaucratic procedures.

Now, the suggestion that the President is making and has made is premature in my judgment. It may very well be that after the interim function that we are concerned with has been carried out and standards have been developed, that then the regulations from that point on can well be carried on within HEW under this kind of a setup.

But we are talking about a serious problem that is not all comprehensive. It doesn't pervade all of industry. It is confined actually to a number of categories of products, and we believe that government by paying attention to it in a task force sort of way, whether it be a commission or what-have-you, but as a task force with a focal point of attention, of the public and the President and Congress, to do a job, can correct it and then it will have served its purpose. It doesn't seem to me to be appropriate to use this is not what we intended, sirthat to use our findings, which indicate an emergency situation and then use that as a means or a device to add on a $50 million budget to HEW, which is already extremely large and unmanageable, so far as I can observe, and so far as has been reported to us.

Senator Moss. Would you say that is somewhat analogous to the EPA which the President has kept out, and as a separate agency because it is a catch-up operation as we begin to develop standards on environment which very well later may be put into a Department of Natural Resources, or into Interior, if Interior continues, but not for that initial 3 or 4 or 5 years, whatever it is, until we do begin to catch up.

Mr. ELKIND. It is precisely analogous to that, Senator.

Senator Moss. Thank you.

Mr. ELKIND. The Commission, of course, supports S. 983. S. 983, is, in fact, the proposed Consumer Product Safety Act recommended by the Commission in its final report. I wish to be extremely frank and forthright with this committee in expressing my views with regard to S. 1797, which I understand is the administration's substitute proposal. I do not like the administration's proposal, and that dislike is not arbitrary nor political but is grounded on the lessons which the Commission learned in the course of its work.

One of the duties assigned to the Commission by Public Law 90146 was, and I quote:

A review of federal, state, and local laws relating to the protection of consumers against categories of such hazardous products, including the scope of coverage, the effectiveness of sanctions, the adequacy of investigatory powers, the uniformity of application, and the scope of enforcement.

Pursuant to this mandate to learn of the quality of enforcement of Federal consumer safety legislation, we commissioned a study by

Howard A. Heffron, the first Chief Counsel of the Federal Highway Administration and former professor of law at the University of Washington. We asked him to give the Commission the benefit of an in-depth analysis of the structure and operation of the automobile safety program, the flammable fabrics program, and the Federal program dealing with hazardous substances, including toys. In the Commission's draft our undertaking was to profit by the errors and omissions, the defects and shortcomings which were exposed to us by the Heffron report.

It is crystal clear to me that the drafters of S. 1797 have either not read the Heffron report, or, if they did read it, they have deliberately decided to build into the Consumer Product Safety Act many of the weaknesses which have afflicted previous efforts to legislate for consumer safety. Without the benefit of the Heffron study, the administration's bill looks pretty good on paper. That was my first personal reaction to it, because the powers are there.

There is the power to ultimately set standards, the power to prosecute through the Attorney General for violations, the liability for fines and imprisonment for violations on individuals.

But what does not show from a reading of S. 1797 is that the legislation creates a paper tiger. It would be as though the Government were to fashion, like Dr. Frankenstein, a man with beautiful sinews, long arms, and piercing eyes, with just one weakness—an inability to hear from the consumer and respond to his needs.

The first step in creating a paralytic consumer protection function is to place it deep in the recesses of the already overburdened and unsuccessful HEW. This has appeal to the unsophisticated, since this would seem to be the traditional department for protecting the consumer's health.

To some extent the announcement by the Secretary promises that at least it wouldn't be reduced to a tertiary function, but I know that in response to your questions, Mr. Chairman, that the Secretary of Health, Education, and Welfare said that the budgetary requests, and hence the allocation of manpower and money will come from the top, and we found, frankly, during the course of running our study that the problems of product safety do not have great public appeal. One condones with product safety problems and is concerned with them at the moment, but after the heat of discussion is over, and the smoke is cleared away, everyone feels protected, psychologically, by their concept that it will happen to someone else and not to them, and that risk taking is a part of our everyday life.

Hence these problems of safety, dominant though they may seem to you in the discussions that took place here this morning, when the smoke of battle clears away they will not be as much of an imperative to the Department, I am afraid, as one might suspect, and this is no reflection on the individuals involved. This is the nature of the activity that the administration will be concerned with. When I say the administration, I mean HEW.

Last week the New York Times ran an expose on the failure of the FDA to utilize the powers given by the Toy Safety and Child Protection Act of 1969, which was sponsored so as to purge dangerous toys from the marketplace. And this confirms that the weaknesses in the FDA in enforcing the Hazardous Substance Act persist.