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Consumer Advocates Blame Lobbyists for Delays in New Toy Safety Rules

Industry opposes some provisions of pending legislation

By Joseph S. Enoch
ConsumerAffairs.com

July 23, 2008
While 2007 may have been the year of the recall, 2008 may see even more children's product recalls, according to a new report, and consumer advocates are hoping that Congress can pass legislation to revamp the nation's product safety agency before the August recess despite persistent lobbying from manufacturers.

The number of recalls of toys and children's products is up 22 percent over the first half of last year, according to a report released today by a consortium of seven not-for-profit consumer advocacy groups.

The answer to the increase in dangerous products in recent years, consumer advocates said at a press conference today, is legislation stewing in Congress that would give the Consumer Product Safety Commission (CPSC) much more authority, money and staff. While the Senate and the House are close to a compromise on the differences in their legislation, there are still five or six controversial items the two sides have yet to agree on and consumer advocates are blaming these delays on intense industry lobbying.

"Will Congress give ExxonMobil and the toy industry Christmas in July or will it guarantee America's littlest consumers a safe holiday season by finishing CPSC reform now?" asked Ed Mierzwinski, U.S. Public Interest Research Group consumer program director.

Phthalate

Exxon is lobbying hard to keep a potential phthalate ban out of the legislation because it is the world's largest manufacturer of diisononyl phthalate (DINP), which is found in many children's products, said Dr. Diana Zuckerman from the National Research Center for Women and Families.

Zuckerman said some phthalates can potentially make boys less masculine, decrease the size of their penises and increase the risk of testicular cancer. In adult men it can result in infertility, she said.

"Exxon has spent $8 million on lobbying so far this year, much of which is lobbying against this consumer safety bill," Mierzwinski said.

In response, Exxon Mobil said products should be regulated based on scientific evidence.

"Decisions regarding product safety should be made by expert scientists at the appropriate federal agencies, such as CPSC or FDA," said Exxon Mobil spokeswoman Susan Kattelus. "Replacing a product that has a long-standing safety record with an untested alternative is bad policy."

"Not all phthalates are created equal. Phthalates are a broad class of chemicals and each phthalate has distinct properties and safety profiles," Kattelus said. "DINP is a high molecular weight phthalate and has undergone thorough scientific testing by a range of authorities, including CPSC and the European Union Risk Assessment organization. Both concluded DINP is safe for use in toys."

The Toy Industry Association's president, Carter Kiethley, insisted his organization is not responsible for any delays.

"That blame is definitely misplaced because we for one have been strong supporters of the legislation and urging strongly that the legislation get out," Kiethley told ConsumerAffairs.com "We think it's important, we think they're doing a lot of good things in the legislation. Certainly we feel that there are some fine points that need to be considered in it, but we're not an obstacle to its adoption by any means."

Kiethley said his organization is against any phthalate ban because of the CPSC's longstanding view that the chemicals are not dangerous.

The proposed ban, which appears in the Senate bill, is similar to bans already in affect in the European Union, Washington state and California.

"We have heard the CPSC repeatedly say that there are no studies that support a ban on phthalates because of adverse health effects," Kiethley said. "We support the notion that legislation or regulation should be adopted on the basis of sound science and that until there is sound science supporting a ban, there shouldn't be a ban."

He said his organization supports the mandatory ASTM standard.

"We believe all toy manufacturers and all toys should conform with all of the ASTM toy standard," Kiethley said. "Whether or not they are incorporated into legislation, everyone should conform with them."

He said TIA supports state preemption:

"The individual states are really not equipped," Kiethley said. "They do not have sources required to truly analyze toy safety issues. The Federal government has worked hard on these sorts of things so individual state legislation will not provide an added level of safety to the residents of their states."

The ASTM standards are an extensive list of requirements that ban toys that can be choking or suffocation hazards, toys that contain heavy metals, such as cadmium, and much more.

Manufacturers take aim at whistleblowers

The National Association of Manufacturers (NAM), one of the nation's largest lobbying groups, has been pushing hard from the beginning to erase a whistleblower protection proposal that would protect industry employees who alert authorities to dangerous products.

"Industry is lobbying for the right to punish these individuals," Mierzwinski said.

According to a letter NAM wrote to members of Congress five months ago, the group opposes the whistleblower provision because disgruntled employees could fall back on the proposal to save themselves from being fired and it could lead to frivolous calls to action.

NAM did not return two phone calls seeking comment.

TIA and NAM have both lobbied hard to include language that would preempt states from writing stronger consumer safety legislation in the future, according to a press release from the consumer advocacy groups.

"States should be able to step in when the federal government doesn't do enough to protect the public from unsafe products," said David Arkush, Director of Public Citizen's Congress Watch division.

The conference committee, comprised of about a dozen Senators and Representatives working to hammer out the differences between the Senate and House versions, has met twice and voted in about 30 items, but still has more controversial items on the docket.

Much of the controversy surrounds a robust Senate version of the bill containing many provisions that consumer advocates predict will make products safer, compared to the more skeletal House bill that aims for bipartisan support.

Time running out

A week and a half remains before Congress takes its August recess.

"We can't wait for more evidence of a broken product safety system, more recalls, or more potentially dangerous products ending up in our children's hands and mouths. Congress must protect our tiniest and most vulnerable consumers immediately," said Rachel Weintraub, director of Product Safety and senior counsel for the Consumer Federation of America. "The time to finish is now — before Congress goes home for August recess."

The conferees intended to meet yesterday to possibly vote on the final details of the bill, but now are awaiting a closed door meeting by the House conferees that is expected to take place tonight.

The entire process to pass this legislation has taken more than a year and the conference dates back to March 6.

Veto possible

Even if Congress finally approves the bill, it's not clear if President Bush will sign it. He has not specifically 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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