The Honorable Daniel Inouye, Chairman, Senate Committee on Commerce, Science and Transportation
The Honorable Ted Stevens, Vice Chair, Senate Committee on Commerce, Science and Transportation
The Honorable John Dingell, Chairman, House Committee on Energy and Commerce
The Honorable Joe Barton, Ranking Member, House Committee on Energy and Commerce
The Honorable Mark Pryor, Chairman, Subcommittee on Consumer Affairs, Insurance, and Automotive Safety
The Honorable John Sununu, Ranking Member Senate Committee on Commerce, Science and Transportation
The Honorable Bobby Rush, Chairman, Subcommittee on Commerce, Trade, and Consumer Protection
The Honorable Edward Whitfield, Ranking Member, Subcommittee on Commerce, Trade, and Consumer Protection

Re: Reconciliation of the Consumer Product Safety Reform Act – H.R. 4040/S. 2663

May 9, 2008

Dear Chairmen and Ranking Members:

Our organizations, representing consumers, scientists, and advocates for children urge you, in the strongest possible terms, to negotiate the most consumer-protective product safety bill possible, combining the best provisions of H.R. 4040 and S. 2663. This will ensure that the conference on these bills results in a well-funded, accountable Consumer Product Safety Commission that can protect our families and repair our broken product safety net.

Last fiscal year alone, we witnessed a flood of unsafe products in the marketplace that necessitated 473 recalls. For example, these recalls have involved toys and jewelry with excessive levels of lead, toys with dangerous magnets that can rip a child’s intestines and stomach lining when swallowed in multiples, and cribs with hardware and side-slat failures that can cause injury and even death. Consumers, and in particular parents, need a system that identifies and alerts them to these problems as early as possible, prevents hazardous products from entering the stream of commerce in the first place, holds manufacturers and others accountable when these unsafe products do wind up in stores and in our homes, and more effective recalls for their removal.

H.R. 4040 and S. 2663 each contain important provisions that will significantly improve the safety of our products. Our organizations, representing millions of American consumers, urge House-Senate conferees to come together and produce a final measure that includes the strongest consumer protection provisions in each bill. Specifically, the final bill should include the following provisions:

• Definition of Children’s Product. The House bill defines a children’s product as one that is designed to be used by children 12 and younger, rather than by children seven and under, as stated in the Senate bill. Because many families have more than one child sharing a toy box, it is critical that the scope of children’s products be broadly defined to include children’s products intended for grade-school children.

• Database. The Senate bill creates a public database to improve disclosure of product safety information, such as incidents associated with cribs and toys that could injure or kill babies and children. The House bill requires a study and feasibility plan. The final bill should create a publicly accessible database without requiring further legislative action.

• Enforcement by State Attorneys General. The broader authorization in the Senate bill is preferable to the more limited state attorneys general authority contained in the House bill. AGs offer additional eyes ensuring compliance with product safety laws. In both bills, AGs are limited to seeking injunctive relief.

• Toy Safety Standard. The Senate bill makes current voluntary standards for toy safety mandatory (subject to upgrading by the CPSC) and thus requires that toys be tested and certified to this standard, while the House language merely directs the CPSC to conduct a study on this topic.

• Lead Provision. Both the House and Senate bills have critical new restrictions on the allowable lead content in toys and other children’s products. Lower lead levels and faster implementation are desirable to protect children from the serious health risks posed by lead exposure. We support combining the Senate’s lower lead levels (starting at 300 ppm and dropping to 100 ppm) with the House’s timetable for implementing the new standard within 6 months, with a further reduction in allowable lead content after two years.

• Whistleblower Protection. A comprehensive product safety bill should include whistleblower protections because such protections are critical for effective enforcement of consumer product safety laws. The Senate bill is analogous to two laws Congress passed recently for corporate workers – the ground transportation sector in the 9/11 law, and defense contractors in the defense authorization law. The Senate bill protects corporate or CPSC employees who challenge violations of CPSC law or who refuse to act illegally themselves. The House bill has no comparable provision.

• Civil Penalties. The Senate version provides significantly greater deterrent for violators of the law and will help to increase compliance with CPSC laws. The Senate bill increases the cap on per-violation penalties from $8,000 to $250,000, and increases the cap on total penalties from $1.83 million to $10 million and up to $20 million if aggravated circumstances are proven. The House bill increases the cap to $5 million for one year and then increases the cap to $10 million, and does not increase the per-violation penalties.

• Criminal Penalties. The Senate bill properly eliminates the “free bite of the apple” pre-notification requirement in existing law. The House bill has no comparable provision. The House bill provides unwarranted immunity for corporations filing required reports of hazards associated with their products. The Senate bill has no comparable provision.

• Recall Authority. The House bill authorizes the CPSC to halt distribution of a product, or notify all parties transporting, selling or distributing a product to cease distribution, if the CPSC has filed an imminent hazard action under Section 12 of the Act. The Senate bill has no comparable provision. The House language is an improvement over the status quo and gives CPSC the authority to stop the distribution of some hazardous products. The Commission’s authority should be further strengthened to authorize CPSC to order recalls pursuant to an informal Commission hearing rather than a court proceeding under section 12 of the CPSA.

• CPSC Inspection of Proprietary Labs. CPSC should have the clear authority to inspect laboratories testing consumer products. The House bill clarifies that CPSC can inspect company-owned labs to ensure that they are meeting standards to limit potential conflicts-of-interest.

Consumers need real product safety reform now to ensure that their toys and other children’s products are as safe as possible. Please ensure sure that product safety and children are put first. We urge you to negotiate the strongest bill possible for consumers.

Sincerely,

Rachel Weintraub
Director of Product Safety and Senior Counsel
Consumer Federation of America

Ellen Bloom
Director, Federal Policy
Consumers Union

Ami Gadhia
Policy Counsel
Consumers Union

Nancy A. Cowles
Executive Director
Kids in Danger

Paul Brown
Government Relations Manager
National Research Center for Women & Families

David Arkush
Director, Congress Watch
Public Citizen

Ed Mierzwinski
Federal Consumer Program Director
U.S. PIRG

Celia Wexler
Washington Representative
Scientific Integrity Program
Union of Concerned Scientists

Cc:
The Honorable Cliff Stearns
The Honorable Janice Schakowsky
The Honorable Henry Waxman
The Honorable Diana DeGette
The Honorable Barbara Boxer
The Honorable Amy Klobuchar
The Honorable Kay Bailey Hutchison