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NAAGazette

Congress Takes Swift Action in Product Safety Arena

Dennis Cuevas, Project Director and Chief Counsel, Consumer Protection

Dennis Cuevas, Project Director and Chief Counsel, Consumer Protection

This past summer, Mattel recalled more than one million toys that were covered in lead paint. The toys, made by a contract manufacturer in China, included 83 products made in a three-and-a-half month period, and featured Sesame Street and Nickelodeon characters such as Elmo, the Cookie Monster and Dora the Explorer. Earlier in the year, RC2, the maker of Thomas trains, recalled 1.5 million trains and accessories because a Chinese supplier had coated them in lead paint.

“Lead has been identified as a hazardous substance for over 100 years and yet it is used again and again in products for its most vulnerable victims,” said Nancy Cowles, Executive Director of Kids in Danger, a non profit organization dedicated to improving children’s product safety. Lead was found in 35 percent of 1,268 children’s products tested by a coalition of U.S. environmental health groups. About 17 percent of these products had lead levels far above the federal recall standard for lead paint.

As we enter the holiday shopping season, parents have become increasingly wary of marketplace products. The recent lead paint toy recalls, coupled with the news reports of dangerous magnets and even a chemical found in a child’s craft toy that, when swallowed, turns into the date rape drug, have lead to increased calls for reforms of the Consumer Product Safety Commission (CPSC), as well as the laws it enforces.

Congressional Responses

Congressional efforts aimed at improving the safety of imported consumer products have intensified in recent weeks. In fact, bills currently in the Senate and House would be the most comprehensive consumer product safety legislation in years. Both of these bills seem to represent an encouraging show of bipartisanship; Democrats and Republicans in the House and Senate are collaborating to effectively toughen standards for preventing lead content in toys. S. 2045, introduced by Senator Mark Pryor (D-AR) and Senate Commerce, Science and Transportation Committee Chairman Daniel Inouye (D-HI), is an important move to ensure that consumers will be better protected from unsafe products. The bill significantly increases funding for the CPSC over the next seven years and increases agency staff to at least 500 employees by 2013. The bill requires independent third-party safety certification of every children's product that enters the United States; requires manufacturers to label children's products with tracking information useful to facilitating a recall; and bans lead from children's products --- i.e., more than trace amounts, defined as 200 parts per million (ppm) for children’s jewelry, 400 ppm for children’s products other than jewelry and 90 ppm for paint on children’s products.

The bill enhances the effectiveness of consumer product recalls by banning the importation and sale of recalled products; requires companies to identify their subcontractors in the supply chain; requires the bonding of manufacturers to ensure funding for recalls; enhances public access to product safety information and enhances the CPSC's authority to order corrective action plans by the manufacturers of recalled products; and authorizes the CPSC to designate customs brokers as "repeat offenders" if they are found to have aided and abetted the importation of a consumer product that violates safety laws on multiple occasions.

With respect to enforcement, the bill increases civil penalties for violations of the Consumer Product Safety Act, the Federal Hazardous Substances Act and the Flammable Fabrics Act. More importantly, the bill allows state Attorneys General to pursue civil actions for violations of federal product safety laws and includes protections for individuals in companies and safety agencies who blow the whistle on wrongdoing.

The House effort (H.R. 4040) introduced by House Energy and Commerce Committee Chairman John Dingell (D-MI), Committee Ranking Member Joe Barton (R-TX) and Commerce, Trade and Consumer Protection Subcommittee Chairman Bobby Rush (D-IL) is largely similar to the Senate effort in that it strengthens CPSC and protects consumers from unsafe products.

Specifically, the House bill would increase CPSC funding to $100 million by fiscal year 2011 and streamline its rulemaking procedures. The bill would require manufacturers, importers, retailers and distributors to identify the manufacturer of a product by name, address or other identifying information, where known, upon request by the CPSC. Similarly, every manufacturer would be required to identify each retailer or distributor to which it supplied a given consumer product, as well as each subcontractor involved in the manufacturing.

The bill bans any product intended for or marketed to children under 12 years of age that contains more than trace amounts of lead. "Trace amounts" would initially be defined as not more than 600 ppm, but that standard would be tightened to 100 ppm within four years. The bill also requires independent third-party testing and certification for all products, domestic or imported, intended for children six years of age or younger. Third-party testing for lead would also be required for products intended for children 12 and under.

The bill increases civil penalties for violations of the Consumer Product Safety Act, the Flammable Fabrics Act and the Federal Hazardous Substances Act, but not as much as S. 2045. A manager’s amendment to the bill also permits state Attorneys General to enforce federal product safety standards.

Swift Action

On October 30th, the Senate Commerce Committee passed S. 2045, which now awaits Senate floor action. Several weeks later, the House Energy and Commerce Committee, Trade, and Consumer Protection Subcommittee passed H.R. 4040, with full committee mark up scheduled for December 13th. Congressional leaders hope to pass the bills this year. Although that is clearly possible, a backlog of schedules makes it somewhat unlikely.

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