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CONSUMER SAFETY BILL CLEARS KEY HURDLE

Most sweeping consumer legislation in 30 years emerges from conference committee

By Joseph S. Enoch
ConsumerAffairs.com

July 28, 2008
The most sweeping consumer legislation in more than 30 years has leaped over its largest hurdle yet, as members of a Congressional conference committee agreed to a final bill that will make the nation's product safety agency much more powerful while also giving much more enforcement authority to states, among many other provisions.

Despite intense industry lobbying, the bill emerged from committee with every pro-consumer provision that consumer advocates have championed since Sen. Mark Pryor (D-Ark.) authored the legislation more than a year ago.

Most notably, the bill gives the Consumer Product Safety Commission (CPSC) more money, more staff and more authority.

“The bill is a huge victory for America's littlest consumers, despite Exxon Mobil's and the toy manufacturers' unsuccessful final efforts to gut it, although they did delay it unnecessarily,” Ed Mierzwinski, U.S. Public Interest Research Group's consumer program director, wrote in his blog.

“This really is an example of the public interests prevailing over the special interests,” said Rachel Weintraub, director of product safety for the Consumer Federation of America.

Industry interests who worked to weaken the bill did not issue any statements and ConsumerAffairs.com was unable to contact any industry representatives for comment.

The conferees, a bipartisan group of about a dozen Senators and Representatives assigned to work out the details between the House and Senate versions of the legislation, actually agreed to the final items in the legislation late Sunday night, Weintraub said. That information did not get out to the press until this evening.

The legislation must next pass what is usually a conciliatory vote in the House and the Senate before it goes to the White House for the President's signature or veto. Since the bill's creation, consumer advocates have feared President Bush would veto any bill that would give the beleaguered regulatory agency more jurisdiction over industry. But both Weintraub and Mierzwinski believe he will sign the legislation into law if it reaches him.

Coburn threats

However, the bill's greatest obstacle may now be Sen. Tom Coburn (R-Okla.) who just today rallied conservatives in the Senate to block the passage of a huge omnibus package of mostly uncontroversial bills.

“(The) key obstacle is getting it past all the unrelated Senate stuff,” Mierzwinski wrote in an e-mail.

Regardless, Weintraub said she is hopeful the bill will pass both chambers this week before the August recess.

As of last week, the conferees were still battling over proposals to ban phthalates, mandate toy and ATV standards, protect whistleblowers and preempt state laws on children's products. There were no further preemption laws included. Here are the rest of the results, courtesy of Pryor's office:

•          Toy Testing: Require mandatory third party safety certification of products made for children 12 and under. Upon CPSC accreditation, firewalled labs could be allowed to test products if they provide equal or greater consumer protection than available third party labs. Authorizes CPSC personnel to enter and inspect any firewalled lab certified under the Consumer Product Safety Act and withdraw accreditation if necessary.

•          Phthalates: Permanently ban the sale of children’s products containing trace concentrations of three phthalates. Temporarily bans products containing trace concentrations of three more unless further study and evaluation prompts the CPSC to lift the ban.

•          ATV Safety: Require the CPSC to adopt the voluntary ATV safety standard as a mandatory standard. Should revisions become necessary, the CPSC would be required to conduct a rulemaking that would include provisions related to safe performance and any additional provisions determined necessary to reduce an unreasonable risk of injury. The CPSC would also be required to consider strengthening additional ATV safety standards.

•          Whistleblower Protections: Provide whistleblower protections for private sector employees.

Here are the rest of the key agreed-upon proposals, also courtesy of Pryor's office:

Increase CPSC Resources and Effectiveness

•          Funding: Authorize funding levels for 5 years beginning in 2010 (FY2010, $118 million; FY2011, $115.6 million; 2012, $124 million; 2013, $132 million; 2014, $136 million). As part of the authorization, Conferees directed $25 million toward establishing a public database.

•          Quorum: Allow a 2-member quorum to conduct official business for the one year period beginning on the date of enactment. The CPSC currently is without a quorum and cannot conduct business that requires Commission action such as a mandatory recall. Restores the Commission to five members instead of three members to prevent future absences of quorum.

•          Rulemaking Process: Streamline the product safety rulemaking process to be timelier by eliminating a mandatory “Advanced Notice of Proposed Rulemaking” step.

Protect children from lead and unsafe products

•          Lead: Ban 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. The CPSC is directed to periodically review and lower the limit. Enhance Public Access to Product Safety Information

•          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, local, State or national government agencies, child care providers, physicians, hospitals, coroners, first responders, and the media. Upon receiving a complaint, the CPSC has 5 days to submit the complaint to the manufacturer. The manufacturer then has 10 days to respond. The complaint and manufacturers response would then be posted on the database. The CPSC would have the authority to remove or correct a complaint if it is found to be inaccurate.

Enable the Assessment of Larger Penalties and Enhance Enforcement of CPSC Statutes

•          Civil Fines: Increase the civil fine penalty cap from $5,000 to $100,000 per individual violation, and from $1.25 million to $15 million for aggregate violations.

•          Criminal Penalties: Increase criminal penalties to five years in jail for those who knowingly and willingly violate product safety laws.

•          Attorneys General: Provide authority for State Attorneys General to enforce consumer product safety laws and act expeditiously to remove dangerous products from shelves.

Enhance Recall Effectiveness

•          Labeling: Require manufacturers to label children’s products with tracking information useful to consumers and retailers in identifying recalled products.

•          Recalled Products: Make it unlawful for retailers to sell a recalled product.

•          Supply Chain: Require companies to identify manufacturers and subcontractors in the supply chain.

Improve Oversight of Imports

•          Export of Recalled Products: Enable the CPSC to prohibit a U.S. entity from exporting a product that does not comply with consumer product safety rules unless the importing country has notified the Commission of its permission.

•          Import Safety: Require the CPSC to develop a plan to identify shipments of consumer products intended for import into the U.S. Improve information sharing among federal agencies, including U.S. Customs and Border Protection.

•          Destruction of Noncompliant Imports: Provide greater CPSC oversight to prevent the entry of unsafe consumer products in the U.S.

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