Consumer protection in trouble again

It can’t be all about budget cutting. The Commission’s proposed 2012 federal budget is $122 million, less than one hundred thousandth of the proposed $3.8 trillion federal budget. But the national cost of deaths and injuries from consumer products is estimated in the Commission’s budget to be $900 billion a year. Measured by even a fraction of this amount, government spending on consumer product safety is a very good investment in prevention. 

After losing out last month in an attempt to completely defund the CPSC’s new data base of individual consumer complaints about unsafe products, the House Energy and Commerce committee majority have now regrouped and are circulating a draft bill that takes a new line of attack. The bill would restrict who could submit information to the data base (eliminating doctors and consumer organizations, among others, as sources of hazard information), narrow the requirement for independent pre-market testing of children products, lower or eliminate the levels of lead that would be permitted in children’s products and authorize the elimination of tracking labels on many consumer products. 

The author of the draft bill, Rep. Mary Bono Mack (R-Calif.), is making her maiden voyage as chair of the House subcommittee authorized to protect consumers. She says the bill is important because the consumer data base “may do more harm than good if it misleads consumers based on inaccurate information.” She also adds the bill would “reduce the regulatory burdens of the law” on industry.

 Consumer Product Safety Improvements Act which imposed these supposedly burdensome safety requirements on the toy, bicycle, chemical, furniture and other industries, was passed by overwhelming House and Senate majorities (424 to 1 in the House; 89 to 3 in the Senate) just three years ago. It was a response to the deaths of children from poorly designed cribs, swallowed magnets and lead poisoning, after repeated incidents which were not addressed by the then anemic CPSC. It was signed by President George W. Bush in 2008. Now three years later the new law and the reinvigorated CPSC are suddenly under fierce attack by new political leaders.

What has happened to Congress’s recent determination to protect consumers? Can consumer safety be balanced with the legitimate needs of business?  

A look back at the creation of the Consumer Product Safety Act in 1972 may be illuminating. The sponsors of the original law were Rep. John Moss (D-Calif.) in the House and Sen. Warren Magnuson (D-Wash.). But a little known role in the fight to create the independent consumer safety agency was played by a Republican, Representative, and later Sen. James Broyhill (R-N.C.). After cruising through the Senate, the bill was deadlocked in the same subcommittee now chaired by Representative Bono Mack. Compromise seemed impossible. 

Moss, who chaired the subcommittee, lacked one vote to report the legislation to the full Commerce Committee, to the House and ultimately to President Richard Nixon. Broyhill, who according to the Congressional Quarterly had an 82 percent conservative-favorable voting record in 1972, read a report by the National Commission on Product Safety on injuries from everyday household products. His reaction:  “No one could read it and not believe that the government has a responsibility to insure the safety of consumers.” But the subcommittee could simply not agree on what kind of safety bill to report. The big sticking points in Moss’s bill were the creation of an independent safety agency and the establishment of a Consumer Safety Advocate within the commission. 

After days of deadlock, it was the Republican who motioned to a staff counsel to come up to the podium in the Rayburn House Office Building where the members had been scrapping for days. Broyhill, who was sitting right next to Moss, said to the counsel, “Tell the chairman we will trade him the independent agency for the Consumer Safety Advocate.” 

When counsel walked about five feet and repeated the offer to Moss, Moss did not really like Broyhill’s proposed compromise. It was contrary to his belief that without a built-in structure in the law to motivate the agency it would ultimately become captive to the industries it was intended to regulate. 

On the other hand, Moss believed, incorrectly it turned out, that large majorities in Congress already supported a bill sponsored by Rep. Ben Rosenthal (D-N.Y.) to create a government-wide Consumer Protection Agency with a similar objective. And he also understood why a narrow majority of his subcommittee, after intense business lobbying, was opposing a Consumer Safety Advocate in the product safety bill. So, Moss saw Broyhill’s proposal as not really a compromise, but a victory for consumers.

Moss showed no emotion. He did not say anything to Broyhill. He turned to counsel, who happened to be me, and said, “Tell Mr. Broyhill that’s OK,” and the deal was cut.

Soon afterward, the Consumer Product Safety Act overwhelmingly passed the House. President Nixon, who had opposed most of the bill, nonetheless signed the law with a glowing statement of support, saying “It answers a long felt need and I am happy to give it my approval”. 

The history of the Consumer Product Safety Act suggests that sometimes members of both parties can overcome the political pressures they face and agree that protection of public safety comes before private profits.

Michael Lemov is the author of “People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights” to be published in June 2011. He served as chief counsel to John Moss’s subcommittees from 1970 to 1978.