The provision for in-house testing is likely to benefit the largest
manufacturers because smaller ones are less likely to have labs that
"provide equal or greater consumer safety protection" than independent
ones, which both House and Senate versions require. A small toy
manufacturer, for instance, could easily test small parts for choking
hazards but would be less likely to have the sophisticated equipment
needed to test paint for lead content.

On Wednesday, members of the House and Senate, which have been ironing
out differences between their product-safety measures, are likely to
discuss the "Mattel amendment"—as one consumer advocate calls it — when
they meet.

Sens. Dick Durbin (D-Ill.) and Bill Nelson (D-Fla.) introduced legislation last year mandating that toys undergo
strict tests by independent labs before they're sold. A Mattel lobbyist
told Durbin's staff that the company had invested in its own labs and
wanted to be allowed to use those facilities rather than hire outside
labs for the testing.

In an interview, Durbin said he prefers independent testing and opposes
allowing companies to use in-house labs for the required tests. "This
could be abused," Durbin said.

When Durbin's bill was combined with others into a more comprehensive
product-safety law last year, the new bill retained his mandate that
independent testing be conducted by a lab that is "not owned, managed,
controlled or directed" by the manufacturer or importer of the product.
Late last year, other lawmakers—no one will say who — inserted the
provision allowing companies to use in-house labs. The Senate then
passed that legislation in March.

Mattel has recently had serious safety problems. In the last two years
the California company recalled more than 14 million toys for lead
paint, potentially deadly loose magnets and entrapment hazards.
Mattel's Fisher-Price unit has twice paid federal fines to settle civil
charges that it failed to report serious defects in toys that injured
children. The company's handling of its Polly Pocket doll recalls for
loose magnets remains the subject of an active investigation by the
U.S. Consumer Product Safety Commission, the Tribune has learned.

'It's the rigor'

Mattel has invested many
years and many millions of dollars in internationally accredited
"world-class labs," said Mattel spokeswoman Lisa Marie Bongiovanni. The
California company has 10 labs in six countries. Using in-house labs
connected to factories encourages more testing, Bongiovanni said,
adding that the company also uses four independent testing labs.

"It's not where the test takes place," she said. "It's the rigor of the testing protocol. That has changed since last year."

Bongiovanni said the high-profile recalls were tied to Mattel vendors
and that Mattel labs helped pinpoint the problems. Mattel has set up
stricter requirements for vendors, she said, and increased the
frequency of testing.

She said no one should fear that Mattel employees would be less strict than an independent lab.

"Wouldn't that same logic apply to independent labs that have huge contracts with big players in the industry?" she asked.

The product-safety legislation grew out of hearings prompted by a
Chicago Tribune investigation last year that revealed how a gutted
federal agency's myopic and docile oversight of children's products led
to injuries and death.

As lawmakers vowed to reform the nation's fractured product-safety
system last year, Mattel stepped up its lobbying efforts in Washington.
In 2007 and the first quarter of this year, Mattel spent $690,000 on
lobbying Congress on a host of issues, including the product-safety
legislation. That's more than twice what the company spent in the
previous five years combined, according to federal lobbyist disclosure
records.

A similar provision allowing companies to certify their own products
popped up in House legislation, which passed last December. Jodi Seth,
a spokeswoman for the House Committee on Energy and Commerce, said
members of both parties agreed to add the provision because they
worried there weren't enough labs to handle the testing required by the
bill.

Likewise, Mattel's Bongiovanni said that independent labs couldn't handle all of Mattel's testing in a timely manner.

But Intertek Plc., one of the world's largest consumer-product testing
companies, said it could absorb Mattel's business and more. Intertek
has substantially expanded its lab space to test children's products in
the last year and has enough capacity to meet the added demand an
independent-testing mandate would bring, said Gene Rider, Intertek's
North American president of consumer goods.

Room to grow

The British-based company, which
already tests toys and other children's products for many American
importers and manufacturers, has labs in 16 countries that can conduct
the kinds of tests Congress wants to require. In Asia alone, it has six
labs for toy testing, including a new four-story lab opened in
Guangzhou, China, in March. In addition, the company could quickly
convert additional textile-testing labs in China and India to test toys
if needed, Rider said.

"We could pretty much double the business we did in 2007 and not have
significant delivery problems," Rider said of testing children's
products.

Mattel's Bongiovanni noted that testing textiles is very different from
testing toys and questioned whether the company could obtain the proper
accreditation in a timely manner. Intertek said it can get the
accreditation needed in one to two months.

Both the House and Senate versions say that companies that want to
certify their products with in-house facilities must have "established
procedures to ensure the lab is protected from undue influence,
including pressure to modify or hide test results," and a confidential
way to report allegations of undue influence to the CPSC.

While those safeguards may sound good on paper, consumer advocates worry they don't go far enough.

Michael Lemov has seen the issue from all sides. As a House Commerce
Committee lawyer in the 1970s, he helped craft the legislation that
established the CPSC. For years he represented manufacturers with
problems before the CPSC but shifted gears last year to lobby for
tougher safety laws as an attorney for Public Citizen. Just last week,
he returned to private practice representing companies.

"You can have all the regulations you want, but how can you get inside
the head of the manager of safety testing at Mattel?" Lemov asked.
"When in doubt, err on the side of public safety, not on the side of
the slight economic advantage of the producer."

pcallahan@tribune.com

axerickson@tribune.com