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SENATE PASSES TOUGH NEW CONSUMER SAFETY BILL

Lobbyists wage fierce behind-the-scenes battle to weaken measure

By Joseph S. Enoch
ConsumerAffairs.com

March 6, 2008

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The Senate today passed the strongest consumer safety legislation since the creation of the Consumer Product Safety Commission (CPSC) in 1972.

The bill, which passed by a vote of 79-13, overhauls the CPSC and its guiding document, the Consumer Product Safety Act.

The CPSC Reform Act would gradually increase the agency's funding to $155.9 million by 2015 and includes many clauses that would make it harder for companies to get away with making dangerous products. The agency was slated to have a $63 million budget this year, but Congress bumped that up to $80 million.

A similar bill unanimously passed the House of Representatives in December, but is considered by many consumer advocates to be inadequate compared to the Senate version, written by Sen. Mark Pryor (D-Ark.).

The most notable difference is that the House version only provides $100 million by 2011 for the agency, which dropped from 480 to 420 full-time employees under the Bush administration.

The Senate version contains these other significant differences:

• Increase fines to $20 million, compared to $10 million in the House version. The current cap is $1.8 million.

• Increase public disclosure Currently, almost no correspondence with companies, consumer complaints or almost any other information is made available on the agency's website or through Freedom of Information Act requests. The Senate's bill would create a searchable database of complaints and expedite the agency's very slow fulfillment of FOIA requests.

• Require third party safety certification on every children’s product that enters the United States. Independent certification companies may have better testing facilities and more regulatory authority over their member manufacturers. This would also defer the expensive testing process onto manufacturers rather than taxpayers.

• Require manufacturers to label children’s products with tracking information useful to facilitate a recall. Recalled products are often found on shelves months or years after a recall because they are not always easily tracked.

• Ban the direct use of lead in all children’s products. The CPSC has worked on passing standards for years but this would wipe out any discrepancies over how much lead is considered safe in children's products and would eventually lower the acceptable amount to 100 parts per million, essentially banning any product that contains anything more than trace levels. The House bill has similar language.

• Restore the Commission to five members instead of the current three to prevent future absences of quorum. The agency has been without a quorum since June 2006 and at times has not been able to fully function as a result.

• Allow state attorneys general to bring civil actions on behalf of state residents to enforce product safety laws and obtain damages and restitution. The House Bill allows attorneys general to bring action, but not to seek any penalties.

• Provide whistleblower protections so manufacturers’ and importers’ employees can safely shed light on any problems along the supply chain. Since CPSC import inspectors have almost no powers and since the agency cannot realistically test every product on the market, Senators and consumer advocates agree that whistleblower protection is essential for consumer safety. This protects whistleblowers from losing their jobs and being sued by their employees.

• Make it unlawful for retailers to sell a recalled product. This would place the onus of removing dangerous products from the marketplace on the final step of the supply chain -- retailers and online auction sites.

• Streamline the product safety rulemaking process to be timely and proactive. The CPSC currently spends years -- sometimes decades -- trying to pass new rules to protect consumers.

• Implementation of new product standards for all-terrain vehicles, lighters, garage doors, fuel tanks and toys.

• Ban industry-paid travel for CPSC employees. The past two chairmen of the agency, both Bush appointees, accepted thousands of dollars worth of junkets from the industries they have jurisdiction over in the past few years.

While the House has the opportunity to scrap their initial legislation and take up the Senate's, it is more likely the legislative bodies will convene to resolve these significant differences in the two pieces of legislation in conference.

Many on Capitol Hill are already predicting that that will be a long, arduous process that will be protracted by the fierce lobbying battle that has taken place for months between industry and consumer advocates.

Lobbyists back House bill

While consumer advocates believe the Senate's stronger language will better protect consumers, industry lobbyists have backed the House legislation.

The National Association of Manufacturers (NAM), the main industry lobbying voice working against the Senate bill, vehemently opposes the whistleblower protections and the right for attorneys general to individually sue companies, according to a letter written to the Senate majority leaders Tuesday.

The letter states that disgruntled employees could fall back on the whistleblower proposal to save themselves from being fired and could lead to frivolous calls to action.

NAM is also concerned that making products that meet safety standards in each state will be too costly.

However, Rachel Weintraub, director of product safety at the Consumer Federation of America believes those claims are diversions and that industry is actually afraid of the increased regulation and the increased disclosure of information.

“They're afraid of more regulation,” Weintraub said. “They've benefited from this system of trust for years.”

Today's passage follows “the year of the recall” in which companies initiated a record number of recalls, especially with children's products imported from China.

Much of the blame was placed on the CPSC, which Democrats and consumer advocates have warned for years is too weak to properly save U.S. citizens from the 15,000 products it oversees. During the Bush administration, the CPSC's staff dwindled every year.

The White House released a Statement of Administration Policy on Monday renouncing many of the same clauses as NAM but has not issued a veto threat.

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