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Groups Want Action on Consumer Safety Bill

Congress eyes its summer recess while legislation languishes

July 21, 2008

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With Congress' August recess looming, consumer, public interest and scientific groups are telling lawmakers to finish the job of reforming the nation's product safety system before heading off on vacation.

Bipartisan legislation passed the U.S. House of Representatives in December and the U.S. Senate in March. Conferee staff and members have been meeting to resolve differences since then to reach agreement on a wide range of issues.

So far, the House and Senate have reached agreement on a number of key issues, including the ban on lead in children's toys and products, the Attorney General enforcement provision, and the establishment of a public database on product hazards.

The product safety legislation would revamp the under-funded and under-staffed Consumer Product Safety Commission and includes some of the most significant improvements in nearly two decades of an agency that oversees the safety of more than 15,000 consumer products in the United States.

In their statement, the groups note that after a record number of product recalls in 2007 and more in 2008, consumers have real concerns about the safety of the toys they buy. But, they note, the clock is ticking.

"Congress needs to step up efforts to resolve the final differences and move the product safety legislation over the finish line," the groups said in a statement. "Our product safety system has been broken for too long and needs to be fixed now. Consumers have waited long enough. It is time for every member of Congress to put safety first and help ensure passage of a strong product safety bill."

The consumer groups call on Congress to resolve some of the outstanding issues that remain unresolved by:

• Adopting a mandatory Toy Safety Standard. Current voluntary standards for toy safety must be made mandatory (subject to upgrading by the CPSC) and toys should be certified to meet that standard before entering the marketplace. The Senate bill includes this language, but the House bill does not.

• Banning certain Phthalates. The Senate bill includes a provision eliminating phthalates in children's products and childcare articles, which will serve to significantly curb children's routes of exposure to these potential reproductive system toxins. The House bill does not include this provision.

• Strengthening All Terrain Vehicle Standard. The groups support strengthening the Senate provision that makes the voluntary standards for ATVs mandatory and requires those entities selling ATVs in the U.S. to be subject to ATV action plans. They also back the inclusion of increased safety measures to make ATVs safer for all consumers. The House bill does not include an ATV provision.

• Rejecting attempts to rewrite Third Party Testing Preemption. Industry is seeking now, at the eleventh hour, to add a new provision (not in either the House or Senate-passed bills) to prevent states from addressing new toy and product testing problems that could arise. The groups strongly oppose this effort.

• Protecting employees who sound the alarm about unsafe consumer products. The Senate bill offers whistleblower protections; the House bill does not. Congress has a strong record of enacting laws that protect whistleblowers working for publicly traded corporations, in the nuclear power and nuclear weapons industries, and ground transportation workers. Those who protect consumers from unsafe consumer products should not fear retaliation from their employers.

Slow going

At a conference committee meeting last week, 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.

The unanimous voice vote left 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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