Resolving differences to protect consumers

Just in time for the holidays last year, the House passed H.R. 4040 to make toys safer. The House’s unanimous vote to overhaul the beleaguered Consumer Product Safety Commission (CPSC) on Dec. 19, 2007 reflects the urgent political mandate we face to fix our nation’s broken consumer product safety system. Committee Chairman John Dingell (D-Mich.) and I worked hard to produce a bipartisan bill that had the support of all stakeholders. Now that the Senate has passed its version, we must quickly move to conference and send a bill to the president that he will sign into law. As we resolve differences between the two bills, I hope the Senate will agree to adopt critical provisions in the House bill.

Both the House and Senate bills are significant improvements over the status quo. Indeed, the two bills are virtually identical in major ways. Both versions authorize significantly more resources for the CPSC and provide greater authority to quickly inform the public about defective products. Both bills ban lead in toys beyond trace amounts and significantly reduce the permissible level of lead in paint. Both require independent testing of children’s products to ensure they meet mandatory safety standards. And both also preserve state common law actions, while affirming that state attorneys general have injunctive authority to enforce key federal consumer product safety statutes and regulations.

The House bill, however, is stronger than the Senate bill in two important ways. First, the House bill requires testing for products intended for children up to age 12, while the Senate version only requires testing up to age 7. This difference is significant given that siblings often share the same toys. Second, the House bill gives the CPSC the authority to immediately cease the distribution of defective products when it determines they pose a significant risk to public safety. The Senate bill has no such emergency provision.
Moreover, H.R. 4040 outright bans industry-paid travel by CPSC members and employees; it allows the CPSC to immediately employ quick and portable XRF technology in stores and portside for lead detection; it requires annual CPSC assessment of the effectiveness of recall initiatives; it authorizes the CPSC to inspect proprietary testing laboratories; and it requires the agency to notify vulnerable, underserved populations of recalled products with television and radio ads, including in languages other than English. These House bill provisions are worthy of Senate adoption.

The Senate bill is more prescriptive than the House version in some ways. For example, the Senate bill allows for the imposition of higher civil penalties with a cap of $20 million for “aggravated circumstances,” while the House cap is $10 million. Moreover, the Senate mandates that a slew of voluntary toy standards become mandatory, which would consequently subject toys to testing to meet these standards. These provisions are worthy of House consideration.

However, there are two key issues on which the House and Senate differ significantly: whistleblower protections and a database that is accessible to consumers. The Senate bill alters federal whistleblower protection laws governing both the CPSC and the private sector involved with consumer products. While H.R. 4040 has no such provision, last year the House passed H.R. 985, the Whistleblower Protection Enhancement Act, which applies to all federal government employees, including those who work at the CPSC. To date, the Senate has not acted on this bill. Chairman Dingell and I take a back seat to no one when it comes to whistleblower protections. We believe Congress should address this issue in a thoughtful and deliberative manner that takes into consideration the needs of all federal employees and the varying circumstances of private employees.

As for an accessible database, the House bill requires the CPSC, within six months of enactment to assess its many existing databases on potential product hazards, formulate an action plan to construct a publicly accessible database, and present the plan to Congress — along with an implementation schedule and proposals for necessary legislation. The Senate database version requires the CPSC to construct a mega-database containing specific information from numerous sources within one year. While both versions share the goal of a making a database available to consumers, it is critical that we craft a provision that takes a realistic approach to the enormous resources required and the technical challenges that will have to be faced to construct a useful database. We do not want to set the CPSC up for failure, especially given the other numerous, important mandates for which the already over-burdened agency will be responsible under the new law.

Congress is on the verge of passing landmark legislation. Before the next holiday season, I am confident that the House and Senate will work together to make law that will improve the safety of toys and other consumer products purchased by American families.

Rush is chairman of the House Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection.