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House Passes Consumer Safety Bill

Much tougher measure sits in the Senate

By Joseph S. Enoch
ConsumerAffairs.com

December 19, 2007

• Mattel Settles Suits Over Dangerous Toys • Target To Pay $600,000 For Violating Lead Paint Ban • Tougher Safety Requirements For Children's Products Now In Effect • Toys 'R' Us Launches Unsafe Baby Products Awareness Program • New Safety Agency Chief Pledges Greater Openness • Obama Names New Consumer Product Safety Chair, Boosts Budget • Toymaker Fined $1.1 Million For Consumer Violations • Maryland Stores Stop Selling Toys With Lead Paint • Toymakers, Craftspeople Up In Arms Over New Safety Law • Thrift Stores Protest Ban on Lead Toys • Target Launches In-Store Recall System • Do's and Don'ts of Holiday Decorating • New Jersey Finds Recalled Toys in Four Stores • Mattel Agrees to Lower Lead Paint Levels in Toys • Consumers Cautioned About Dangerous Toys • Soon-To-Be-Banned Plastic Toys Flooding the Market • Safety Agency Warns of Safety Hazards in Cribs --- • More Consumer Safety News • Recall Notices

The House of Representatives voted 407-0 today to approve what some consumer advocates are calling the strongest consumer protection legislation since the creation of the Consumer Product Safety Commission in 1972.

The measure -- officially called the Consumer Product Safety Commission Modernization Act of 2007, H.R. 4040 -- was rushed along through a procedural maneuver that let Congress vote before leaving town for the holiday recess.

The maneuver enables the men and women of Congress to tell the folks back home that they voted to protect American families from dangerous products.

Rachel Weintraub, director of Product Safety at the Consumer Federation of America, has spoken on behalf of many of the nation's leading consumer advocacy groups and said that the House's urgency in rushing this bill to the floor before they leave town showed a commitment to product safety but that it also “reflects a careful bipartisan construction.”

That "careful construction" allowed the bill to pass with ease because it is a diluted version of a much stronger Senate bill now pending in the Senate. Many Republicans, including noted pro-business advocate Rep. Joe Barton (R-Texas), supported the weaker bill from the beginning.

The most notable difference is that the Senate bill allows the agency to fine companies up to $100 million while the House bill which tops out at $10 million. Currently the agency can fine companies no more than $1.8 million.

There is also no whistleblower protection in the House bill and much less public disclosure of business information.

Despite the weaker version, some consumer advocates are pleased with the tone of the bill while industry lobbyists see it as excessive and invasive.

More thanks for less

Perhaps the most curious supporter is CPSC acting chair Nancy Nord, a Bush appointee and past industry lobbyist who has vehemently opposed most legislation that strengthens her regulatory agency.

“I want to thank the U.S. House of Representatives for passing landmark legislation today that finally gives the CPSC the additional tools and resources to address the growing issue of imports and other important product safety issues,” Nord said in a prepared statement that came out minutes before the clerk tallied the final vote.

Later in her statement, she made it clear that she still does not support the Senate version of the bill which ultimately would give her agency more money, power and staff.

“Theirs was a truly bipartisan and comprehensive effort to craft and pass sound legislation and for that I am truly grateful,” Nord said of the sponsors of H.R. 4040. “I urge the Senate to follow the House’s lead in passing bipartisan and sensible product safety legislation.”

Despite the compromises, most consumer advocates are pleased with the legislation.

“It is clear to all of us that something has gone wrong with our current safety system,” Weintraub said at a hearing to discuss the bill in November.

“Your bill, H.R. 4040, the Consumer Product Safety Modernization Act (CPSMA), correctly recognizes that the Consumer Product Safety Commission (CPSC) – the agency responsible for protecting consumers from unsafe and dangerous products in the marketplace – is broken. H.R. 4040 attempts to remedy this critical problem by increasing the Agency’s resources and legal authorities necessary to keep unsafe products out of the marketplace.”

"Not glad tidings"

But Public Citizen President Joan Claybrook said the bill was "not glad tidings for consumers." She said it is"inadequate to protect American families" and said the measure:

• Does not require public safety data on dangerous products to be made public - an amendment for a robust consumer information system offered by Rep. Edward Markey (D-Mass.) was rejected in committee today;

• Fails to increase civil penalties sufficiently for “knowing” violations of safety laws;

• Falls dramatically short of providing the budget and staff that the CPSC needs;

• Fails to sufficiently streamline the CPSC’s current, ineffective recall procedures;

• Does not enable the CPSC to block unsafe imported products at the border before they harm consumers;

• Does not mandate pre-market testing of children’s toys and other consumer products; and

• As Rep. Henry Waxman (D.-Calif.) pointed out, creates a new, unprecedented criminal immunity for corporations that merely comply with the law by reporting hazardous substances in products.

In a press release, the National Association of Manufacturers said it supports a stronger CPSC but “reject(s) provisions that would generate increased litigation rather than increased safety.”

Most notably, NAM opposes a provision which allows state attorneys general to sue manufacturers that produce dangerous products.

During the markup debates, Dingell urged his colleagues not to vote for product-specific amendments because he wanted to keep the bill “clean,” improving its chances of passing. As a result strengthening amendments that would have given the agency authority over fixed thrill rides, pet toys and many others, were withdrawn.

Although Weintraub said she would have liked to have seen many of those amendments attached, she said it was more important that legislation be passed to “fix a broken CPSC” before they go on recess.

Upgrades

The version of the bill that survived the markup includes these major CPSC upgrades:

• More than doubling the agency's funds to $80,000 in 2009, $90 million for 2010 and $100 million for 2011 along with $20 million to update the agency's laboratory.

• Lower lead standards in children's products, from 600 ppm to 100 ppm.

• Mandatory third-party testing for many children's products.

• Tracking labels for children's products to facilitate finding the overseas manufacturer and recalling the product.

The next step is for the Senate to pass its bill. The Senate version has been placed on the calendar but there is no time or date yet for a vote. It is likely going to be held off until early next year at the earliest.

"A little nip"

If the Senate version passes, the bills would go to a conference committee where both sides will work out a compromised bill to send to President Bush for his signature or veto.

The longer the process drags out, the more likely it is that stronger measures will be added, as the 2008 election is drawing near and voters are likely to take a dim view of efforts to weaken the measure.

On the other hand, longtime observers said, there is ample opportunity for backroom dealing that leaves odious measures in what is publicly presented as a tough piece of legislation.

The clause in the House bill that exempts companies from criminal prosecution as long as they report the defect is a perfect example, said one former public affairs executive who has represented large companies on the Hill.

"The Bush Administration likes to pardon companies upfront, assuring them they won't go to prison and will only have to pay a fine, which basically is paid by the stockholders and customers.

"It's all bark, not much bite. More like a little nip," he said.

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