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Congress Inches Towards New Consumer Safety Bill

House-Senate conferees reach agreement on some measures, not others

By Joseph S. Enoch
ConsumerAffairs.com

July 17, 2008

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Congress today came a step closer to passing one of the most sweeping consumer bills in history, but more controversial obstacles, along with one very vocal anti-consumer representative, may stand in the way of the legislation being sent to President Bush's desk before the long August recess.

At today's conference meeting, the conferees, about a dozen Senators and Representatives working on the differences between the Senate and House versions of the Consumer Product Safety Commission (CPSC) Reform Act, agreed on nine more provisions in the legislation:

2. Import safety management and interagency cooperation: Requires the CPSC to develop a plan to identify shipments of consumer products intended for import into the U.S. Improves information sharing among federal agencies, including U.S. Customs and Border Protection.

3. Substantial product hazard list and destruction of noncompliant imported products.

4. Financial responsibility: Allows the CPSC to recommend to Customs and Border Protection a bond amount sufficient to cover the cost of destruction of such products and requires a study to determine the feasibility of requiring escrow for recalls and destruction of products.

5. Inspector general audits and reports: Tasks the Inspector General with conducting reviews and audits to assess the CPSC capital improvement efforts, barriers to oversight and compliance, and reports of waste, fraud, and abuse.

6. Children’s products containing lead; lead paint rule: Bans lead for products manufactured for children age 12 or younger. Specifically, the permissible level of lead in children’s products would be 600 ppm within 180 days, 300 ppm after one year and 100 ppm after three years.

7. Enforcement by State Attorneys General: Provides authority for State Attorneys General to uniformly enforce consumer product safety laws and act expeditiously to remove dangerous products from shelves.

8. Establishment of a public consumer product safety database: Within 2 years, the CPSC would establish a searchable database to include any reports of injuries, illness, death or risk related to consumer products submitted by consumers and other agencies. Upon receiving a complaint, the CPSC has five days to submit the complaint to the manufacturer. The manufacturer then has 10 days to respond. The complaint and manufacturer's response, if available, would then be posted on the database. The CPSC would have the authority to remove a complaint if it is found to be inaccurate.

9. Public disclosure of information: Modifies provisions concerning the public disclosure of information regarding a consumer product where disclosure will permit the public to readily identify the manufacturer or private labeler. Decreases waiting periods before the CPSC may disclose information and provides for expedited court actions to release information on products to the public.

Today's unanimous voice vote leaves five or six more items that consumer advocates, industry lobbyists, Senators and Representatives cannot agree on:

1. 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.

2. Mandatory ASTM toy testing standards: If adopted, these standards would require toy manufacturers to follow the nation's oldest voluntary standards.

3. Preemption: This provision would make it impossible for states to adopt tougher standards. This would make the laws in states such as California, which has pthalate restrictions, and Washington, which has tougher lead standards, obsolete. Consumer advocates argue that this will make consumer goods safer while manufacturers say it will make it difficult for them to make products for each state's separate rules.

4. Whistleblower protection: This would protect industry and government employees from lawsuits after sharing information regarding corruption or dangerous products.

5. Mandatory All-Terrain Vehicle standards: For years the CPSC has failed to make the voluntary standards mandatory, opening the door to less scrupulous foreign manufacturers. Consumer advocates say those voluntary standards still will not do enough to save lives while large manufacturers want them implemented to shut down the importation of cheaper imports.

6. Product-specific standards: Rep. John Dingell (D-Mich.) has led the way in the House and has insisted on passing a bi-partisan piece of legislation that has few amendments and no product-specific additions, such as the mandatory ATV standards. However, a source close to the proceedings said they are still considering including standards for lighters, equestrian helmets, garage doors and possibly more.

The conferees today also voted on an amendment that would have given the CPSC the authority to ban importers and local manufacturers from the marketplace for repeat offenses. The vote highlighted the pervasive bickering that is not dividing party lines, but rather the two chambers of Congress.

The Senators unanimously voted in favor while the Representatives unanimously voted against the repeat offenders amendment. From the beginning, the Senate bill was much stronger in terms of consumer protection while the skeletal House bill, which passed unanimously, was more concerned with getting bi-partisan approval. Both sides now appear to be in a House versus Senate tug of war.

Consumers are caught in the middle waiting for reform that consumer advocates say is long overdue. While the Senate appears to be winning, there are still at least five controversial items that would likely protect consumers more that representatives, most notably Barton, are struggling to keep out of the legislation. This battle continues to slow the process which is already more than a year in the making.

“Consumers have been waiting for this bill for a long time,” said Ami Gadhia, policy counsel for Consumer's Union. “The clock is ticking.”

“These (provisions) will all make our lives better,” Barbara Boxer (D-Calif.) said. “Why do we have to stall?”

Despite the pleas of Senators, the House won out in the battle over repeat offenders. Barton repeatedly shouted “nay,” even before an official vote had even been tallied.

Sen Amy Klobuchar (D-Minn.) promised the issue would be raised again in the Senate.

This is the second meeting of the conference. The conferees agreed upon 21 noncontroversial items June 26. Sen. Inouye (D-Hawaii), who co-chairs the conference with Dingell, said the next meeting will probably be Tuesday, July 22. The conferees said repeatedly that they would like the legislation to pass before the August recess in two weeks.

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 he disagrees with many of the more aggressive clauses and has been largely apposed to any regulatory legislation that contains no preemption clause.

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