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Congress Reaches Agreement on Parts of Consumer Safety Bill

Fierce behind-the-scenes battle rages over increasing the power of the Consumer Product Safety Commission

By Joseph S. Enoch
ConsumerAffairs.com

June 26, 2008

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After three and a half months of secretive backroom bickering and intense lobbying, U.S. senators and representatives agreed late yesterday on 21 uncontroversial items of what many have called “the most sweeping consumer legislation in a generation.”

The bill, the Consumer Product Safety Commission Reform Act, would greatly increase the beleaguered safety agency's funding, staff and authority. Both the House and the Senate passed their versions of the bill earlier in the year and since March 6, the two sides have been in conference trying to find agreeable compromises between the skeletal House version and the Senate version, which consumer advocates believe is far better suited to protect consumers and reinvigorate the CPSC.

Despite the differences, the two sides were able to agree on 21 items out of a total of about 30.

While many of the specifics are still being worked on and no official documents have been released, of those 21 items, the most notable are:

• Required tracking labels for children's products, which would probably make recalls easier and more effective. This also would make it easier to track the source of manufacturing.

• A return to a five-member commission and reinstatement of interim quorum. In August 1986 two commissioners resigned and their seats were never filled, leaving the agency for the past 22 years with three commissioners to vote on rules and fines. Two years ago, then-chairman Hal Stratton, a George W. Bush appointee, abruptly resigned to become a lobbyist and Bush has not filled the vacancy. There is a good chance Bush will never fill that vacancy, said Rachel Weintraub, director of Product Safety at the consumer advocacy group, Consumer Federation of America. This legislation would give the agency a temporary quorum with the remaining two commissioners until the new president fills the three vacant posts.

• More transparency in the agency. This includes more submissions of documents to Congress while requiring the agency to submit annual reports – something almost every agency does -- yet the CPSC stopped doing it in 2003.

• More effective recalls by way of requiring manufacturers to send recall notices to customers and advertise the recall on the Internet and in catalogs and enhancing the agency's authority to order recalls.

• Expedited rulemaking. The CPSC often takes two years or more to pass rules.

• Ban industry-sponsored travel. This comes after The Washington Post reported that Stratton and the acting chairwoman, Nancy Nord, another Bush appointee, went on many expensive trips, including one to China, on the tab of companies the commission regulates.

• Increased civil penalties. Currently the agency can fine companies that knowingly break rules a maximum of $1.8 million – a paltry sum for many of the multi-million and -billion dollar companies the agency regulates. An exact figure has yet to be released but it is believed to be $15 million – a compromise between the House bill's proposed $10 million and the Senate's $100 million.

There are about eight more controversial items the senators and representatives did not have time to fully address yesterday afternoon due to votes on the House floor.

While they were not specifically addressed, they are believed to be:

• Preemption expansion. This is easily the most controversial and complicated item in the bill. Manufacturers and their lobbyists are pushing hard to include language that would make it nearly impossible for consumers injured by dangerous products to sue while consumer advocates would like all preemption language removed from the bill.

• Authority of state attorneys general. This is also a very controversial and complicated item. The Senate bill allows attorneys general to act essentially as mini CPSCs -- a move that would allow the agency to expand its overall power and effectiveness, consumer advocates argue. The House Bill gives some authority to attorneys general, but on a considerably more limited basis. Industry lobbyists argue that increased state authority will make it harder for them to manufacture their products to code.

• Publicly searchable database. This would allow consumers to read the thousands of complaints the agency receives every year instantly on the Internet, similar to what the National Highway Traffic Safety Administration offers on its Web site. Currently, one must file a Freedom of Information Act request to view those complaints – a process that frequently takes many months for the agency to fulfill. The senate bill's author, Sen. Mark Pryor (D-Ark.), argued that this clause would be important because it takes the agency too long to pass rules and thus consumers will be safer by reading about the potential hazards of any product long before the agency does anything about it. Manufacturers say this process will lend itself to competing companies filing false complaints with the agency. Currently, millions of readers read complaints from the ConsumerAffairs.com database every month.

• Mandatory all-terrain vehicle rules. The rules for ATVs expired in 1998 and although larger manufacturers have continued to abide by them voluntarily, less scrupulous foreign manufacturers have imported cheaper ATVs that do not follow the voluntary rules. Manufacturers want the rules to become mandatory while consumer advocates would rather the rules be withheld so much stronger ones can be implemented. ATVs are among the most deadly products under the CPSC's jurisdiction.

• Phthatlate restrictions. In recent years, scientists have identified a possible connection to the plastic components known as phthalates and cancer and genital defects. The European Union, California and some retailers, including Wal-Mart, have banned some types of phthalates. Many Democrat conferees want rules similar to the EU ban included in the legislation, while some Republicans, most notably Rep. Joe Barton (R-Texas), believe the fears to be overstated.

• Whistleblower protections. Consumer advocates believe the marketplace will be safer if employees can release information proving a company knowingly makes defective goods without fear of being sued. Manufacturers believe this will pave the way for trial lawyers and disgruntled employees to make frivolous accusations.

• Lead levels in children's products. Very few details are known yet except that a deal on a figure is “close,” Pryor said. The current standard is 600 parts per million and the new standard is expected to be less than half that.

Regardless of the outcomes of these controversial items, “we will have a much safer marketplace” if the bill becomes law, Pryor said.

Many senators and representatives present at the conference meeting said that completing the conference “before August” would be “an aggressive goal.”

It is unknown whether President Bush will sign the impending bill into law. He has not threatened a veto, but in a memo from the White House, has indicated that he disagrees with many of the more aggressive clauses.

The staff members of the House and Senate Commerce Committees were told to work over the upcoming July 4 recess, starting Friday, to continue to try and find workable compromises on the controversial items. The next public meeting has been tentatively scheduled for “soon after the recess,” said Rep. John Dingell (D-Mich.), who co-chairs the conference.

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