Consumer Product Safety Improvement Act of 2008: P.L. 110-314

Congressional research reportSep 22, 2008

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Consumer Product Safety Improvement Act of

2008: P.L. 110-314

(name redacted)

Legislative Attorney

September 22, 2008

Congressional Research Service

7-....

www.crs.gov

RL34684

CRS Report for Congress

Prepared for Members and Committees of Congress

Consumer Product Safety Improvement Act of 2008: P.L. 110-314

Summary

Public alarm about the spate of recent product recalls throughout 2007, particularly of toys and

other products used by children, has focused attention on the Consumer Product Safety

Commission (the CPSC or the Commission). This scrutiny led to consideration of major

amendments to the Consumer Product Safety Act (CPSA), which established and authorized the

CPSC in 1972 in response to growing concerns about protecting the public from unsafe, defective

consumer products. Jurisdiction over the administration and enforcement of several existing

consumer safety statutes was transferred from other agencies to and consolidated under the

CPSC. However, in the years since its establishment, the staff and resources of the CPSC have

been considerably reduced, leading many observers to doubt its ability to fulfill its mission

effectively.

Consequently, Congress considered major reform legislation to address organizational and

systemic deficiencies. Legislative proposals in the 110th Congress included provisions targeting

specific consumer product defects and hazards. On July 29, 2008, H.Rept. 110-787, the

Conference Report for H.R. 4040, the Consumer Product Safety Improvement Act of 2008

(CPSIA), was released after several months of negotiations in the conference committee to

reconcile differences between the House and Senate versions of the bill. The bill passed the

House of Representatives and the Senate on July 30, 2008 (424-1) and July 31, 2008 (89-3),

respectively. On August 14, 2008, President Bush signed the bill into law as P.L. 110-314. CPSC

Chairman Nord and Commissioner Moore each expressed approval of the final legislation, with

Chairman Nord expressing a desire for Congress to appropriate further funding to carry out the

new mandates of the legislation.

This report provides an overview of the prior authority of the CPSC to establish consumer

product safety standards and to inspect and recall unsafe consumer products, and discusses P.L.

110-314, the Consumer Product Safety Improvement Act of 2008, reforming the CPSC and

strengthening enforcement of consumer product safety standards. It supersedes CRS Report

RL34399, Consumer Product Safety Improvement Act of 2008: H.R. 4040, by (name redacted)

(out of print but available from author). For an overview of issues regarding safety of

consumer products imported from China, see CRS Report RS22713, Health and Safety Concerns

Over U.S. Imports of Chinese Products: An Overview, by (name redacted). For an overview

of the issue of phthalates in children’s products, see CRS Report RL34572, Phthalates in Plastics

and Possible Human Health Effects, by (name redacted) and (name redacted).

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Consumer Product Safety Improvement Act of 2008: P.L. 110-314

Contents

Background ................................................................................................................................1

Current Legislation: P.L. 110-314................................................................................................7

Children’s Product Safety......................................................................................................8

Lead Content and Measurement (§101) ...........................................................................8

Third-Party Testing and Certification of Children’s Products (§102) ................................8

Tracking Labels for Children’s Products (§103)...............................................................9

Standards and Registration Forms for Durable Nursery Products (§104)........................ 10

Labeling for Certain Toy and Game Advertising (§105)................................................. 10

Adoption of a Mandatory Toy Safety Standard (§106) ................................................... 10

Study of Disparities in Injury/Death Rates of Minority Children (§107)......................... 11

Ban on Specified Phthalates and Certain Alternatives in Certain Children’s

Products and Child Care Articles (§108)..................................................................... 11

Strengthening Commission Administration and Resources .................................................. 12

Reauthorization Years and Funding (§201) .................................................................... 12

Full Commission Funding and Interim Quorum (§202).................................................. 12

Personnel (§202(c))....................................................................................................... 13

Reports to Congress (§203) ........................................................................................... 14

Expedited Rulemaking Procedures (§204) ..................................................................... 14

Inspector General Audits and Reports (§205)................................................................. 14

Ban on Industry-Sponsored Travel (§206) ..................................................................... 15

Information Sharing with Other Government Agencies (§207)....................................... 16

Employee Training Exchanges (§208) ........................................................................... 16

Repeal of CPSA §30(d) (§237)...................................................................................... 16

Cost-Benefit Analysis under the PPPA (§233)................................................................ 16

Enhanced Enforcement and Cooperation ............................................................................. 17

Prohibition on Stockpiling (§213).................................................................................. 17

Prohibited Acts (§216) .................................................................................................. 17

Penalties (§217) ............................................................................................................ 18

Enforcement by State Attorneys General (§218) ............................................................ 19

Whistleblower Protections (§219) ................................................................................. 20

Federal Law Preemption (§231) .................................................................................... 22

Enhanced Inspection, Public Notice, and Recall .................................................................. 23

Public Disclosure of Information (§211)........................................................................ 23

Establishment of a Public Consumer Product Safety Database (§212)............................ 24

Substantial Product Hazard Reporting Requirement (§214(a)(2))................................... 26

Enhanced Public Notice of Substantial Product Hazards................................................ 27

Enhanced Authority for Corrective Action Plans and Recalls (§214).............................. 27

Requirements for Recall Notice Content (§214(c)) ........................................................ 28

Identification of Supply Chain (§215(b)) ....................................................................... 29

Financial Responsibility (§224)..................................................................................... 29

Annual Reporting Requirement (§209).......................................................................... 29

Inspection of Certified Proprietary Laboratories (§215(a))............................................. 29

Safety of Imported and Exported Products........................................................................... 30

Export of Recalled and Nonconforming Products (§221) ............................................... 30

Development of Methodology to Identify Unsafe Imports (§222) .................................. 30

Cooperation with U.S. Customs and Border Protection (§222(c)) .................................. 31

Substantial Product Hazard List and Destruction of Unsafe Imports (§223) ................... 31

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Consumer Product Safety Improvement Act of 2008: P.L. 110-314

Study of CPSC Authority Related to Imported Products (§225) ..................................... 32

Miscellaneous Provisions .................................................................................................... 32

Adoption of a Mandatory All-Terrain Vehicles (ATVs) Safety Standard (§232).............. 32

Formaldehyde Study (§234) .......................................................................................... 32

Expedited Judicial Review ............................................................................................ 32

Definitions .................................................................................................................... 33

Pool and Spa Safety Act Technical Corrections.............................................................. 33

Provisions Deleted in the Conference Agreement .......................................................... 33

Tables

Table 1. Authorized Total Appropriations and Travel Component for CPSC, FY2010FY2014.................................................................................................................................. 12

Contacts

Author Contact Information ...................................................................................................... 34

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Consumer Product Safety Improvement Act of 2008: P.L. 110-314

Background

Public alarm about the spate of product recalls during 2007, particularly of toys and other

products used by children, has focused attention on the Consumer Product Safety Commission

(CPSC). P.L. 110-314, 122 Stat. 3016 (2008), the Consumer Product Safety Improvement Act of

2008 (CPSIA), was enacted as a result of Congress’s consideration of major reform legislation to

address organizational and systemic deficiencies, as well as specific consumer product defects

and hazards. This report provides an overview of the prior authority of the CPSC to establish

consumer product safety standards and to inspect, recall, and restrict importation of unsafe

consumer products, and summarizes changes made by the CPSIA to reform the CPSC and

strengthen enforcement of consumer product safety standards.

The Consumer Product Safety Act (CPSA, 15 U.S.C. §§2051 et seq.) established and authorized

the CPSC in 1972 in response to growing concerns about protecting the public from unsafe,

defective consumer products. However, in the years since its establishment, the staff and

resources of the CPSC have been considerably reduced to the detriment of its ability to fulfill its

mission effectively. Aside from the issue of adequacy of resources, the highly publicized recalls

of children’s toys in 2007 focused attention on alleged weaknesses in the CPSA and the authority

of the CPSC to establish consumer product safety standards and to inspect, recall domestically,

and block imports of unsafe consumer products.

The CPSC is the central, federal authority for the promotion and enforcement of consumer

product safety. The system is designed to be a collaborative effort among the CPSC, the industries

producing the broad range of consumer products, and the consuming public. The CPSC

researches and promotes best practices for the industries, producing guidelines for manufacturers,

importers, distributors and retailers. Although the CPSA authorizes the CPSC to promulgate

mandatory consumer product safety standards, it mandates reliance upon voluntary standards

whenever compliance with voluntary standards would eliminate or adequately reduce the risk of

injury and substantial compliance with voluntary standards is likely.

Besides the CPSA, the CPSC also administers several other statutes whose authorities and

functions were transferred to the CPSC upon its creation. The Federal Hazardous Substances Act

(FHSA, 15 U.S.C. §§1261 et seq.) provides for warning/informational labeling of hazardous

substances and for the banning of certain hazardous substances for which labeling would not

provide adequate protection for the public against the potential hazards posed by the substances.

The Flammable Fabrics Act (FFA, 15 U.S.C. §§1191 et seq.) provides for the establishment of

safety standards regarding fabric flammability. It also prohibits the manufacture, sale,

importation, transportation, or delivery in commerce of a product, fabric, or related material or of

a product made of a fabric or related material that does not comply with the standards and deems

that such practices constitute unfair methods of competition and unfair and deceptive acts or

practices under the Federal Trade Commission Act. The Poison Prevention Packaging Act (PPPA,

15 U.S.C. §§1471 et seq.) authorizes the CPSC to establish special packaging standards for a

household substance if such standards are required to protect children from serious injury or

illness from using, handling or ingesting such substance, with exceptions for noncomplying

packages for elderly/handicapped persons and packaging at the direction of a licensed medical

practitioner. The Refrigerator Safety Act (RSA,15 U.S.C. §§1211) prohibits the introduction into

interstate commerce of any household refrigerator that does not conform with certain safety

standards.

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Prior to amendment by the CPSIA, some of these statutes provided for powers that were similar

but not identical to those established under the CPSA. Therefore, the regulatory procedures and

other actions which the CPSC is authorized to carry out with regard to the products regulated

under these other statutes differed (and may still differ in some respects) from those authorized

under the CPSA. Before the CPSIA, the CPSC could choose to regulate under the CPSA a

consumer product that could be regulated sufficiently under these other statutes only if the CPSC

determined that it was in the public interest to do so. The differences among the different

statutory standards and procedures and enforcement authority arguably led to inconsistency in the

enforcement of different product standards. For example, injunctive enforcement authority for

states attorneys general is expressly provided by the FHSA and the FFA, but was not expressly

provided by the CPSA before amendment by the CPSIA. The apparent ambiguity of the CPSA on

this point led to amendments in the CPSIA to provide express authority.

The CPSC has the authority to establish consumer product safety standards for consumer

products generally, defined as “any article or component part thereof, produced or distributed (i)

for sale to a consumer for use in or around a permanent or temporary household or residence, a

school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a

consumer in or around a permanent or temporary household or residence, a school, in recreation,

or otherwise.”1 There are express exemptions for products covered under other statutes, including

tobacco and tobacco products, motor vehicles and motor vehicle equipment, pesticides,

firearms/antique firearms and ammunition/supplies (except for fireworks), aircraft and

components, boats and other marine vessels, drugs, medical devices, cosmetics, food, or any

article which is not customarily produced or distributed for sale to, or use or consumption by, or

enjoyment of, a consumer. The CPSC also has jurisdiction over amusement rides that are not

permanently fixed to a site but rather are part of a travelling carnival or show, but does not have

jurisdiction over rides that are permanently fixed to a particular site.2 Furthermore, the CPSC has

no jurisdiction to regulate a particular consumer product if the risk of injury associated with that

product could be eliminated or sufficiently reduced by actions taken under the Occupational

Safety and Health Act of 1970 (Occupational Safety and Health Administration), under the

Atomic Energy Act of 1954 (the Energy Research and Development Administration [now

Department of Energy] and the Nuclear Regulatory Commission), or under the Clean Air Act (the

Environmental Protection Agency). The CPSC has no authority to regulate any risk of injury

associated with electronic product radiation emitted from an electronic product if such risk may

be regulated under the Public Health Act (the Food and Drug Administration).

Manufacturers, distributors, retailers, and importers are obligated to report consumer product

safety problems to the CPSC, which may order a recall or import ban. The CPSA provides the

general authority of the CPSC over inspections, recalls and import bans for consumer products

generally, with the exceptions noted above, unless other statutes provide other agencies with

authority over specific products. Although some of the other statutes enforced by the CPSC

contain provisions specifically addressing notice/recall, import bans, and other remedies similar

to those contained in the CPSA, not all do.

The CPSC is authorized to inspect domestic facilities where a consumer product is manufactured

and the conveyances by which it is transported and which may be relevant to the safety of such

1

2

CPSA §3 (codified at 15 U.S.C. §2052).

State agencies have jurisdiction over fixed rides that are located in a park in their jurisdiction.

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product.3 It is unlawful for a person to fail or refuse to permit inspection as required under the

CPSA.4 For purposes of the CPSA, including inspection and testing, the CPSC may purchase any

consumer product and it may require any manufacturer, distributor, or retailer of a consumer

product to sell the product to the CPSC at cost.5 The CPSC is authorized to establish and maintain

a permanent product surveillance program, in cooperation with other appropriate Federal

agencies, for the purpose of carrying out the CPSC’s responsibilities under the CPSA and the

other Acts it administers and preventing the entry of unsafe consumer products into the United

States.6 The U.S. Customs and Border Protection (CBP)7 is authorized to obtain and deliver

samples of consumer products being offered for importation to the CPSC, upon its request, for the

purpose of inspecting such samples for compliance with the CPSA.8 Similarly, under FHSA § 14

(15 U.S.C. § 1273), the CBP is authorized to obtain and deliver samples of hazardous substances

being imported or offered for importation to the CPSC, upon its request, for the purpose of

inspecting such samples for compliance with the FHSA.

Under CPSA §19,9 it has been unlawful, among other things, to manufacture, sell, distribute in

commerce, or import into the United States any consumer product which does not comply with an

applicable consumer product safety standard or which has been declared a banned hazardous

product by a rule under the CPSA. Other consumer-product-related statutes contain similar

provisions concerning prohibited or unlawful acts. The CPSIA has expanded the scope of

prohibited acts.

Under CPSA §15,10 every manufacturer (defined to include importers), distributor, or retailer of a

consumer product distributed in commerce who obtains information reasonably supporting the

conclusion that such product (1) fails to comply with an applicable consumer product safety rule

or with a voluntary consumer product safety standard; (2) contains a defect which could create a

substantial product hazard; or (3) creates an unreasonable risk of serious injury or death, shall

immediately inform the CPSC, unless such manufacturer, distributor, or retailer has actual

knowledge that the CPSC has been adequately informed of such defect, failure to comply, or risk.

If the CPSC determines after a hearing that a product presents a substantial product hazard and

that notification is required in order to adequately protect the public from such substantial product

hazard, the CPSC may order the manufacturer or any distributor or retailer of the product to take

any one or more of the following actions: (1) to give public notice of the defect or failure to

comply; (2) to mail notice to each person who is a manufacturer, distributor, or retailer of such

product; or (3) to mail notice to every person to whom the person required to give notice knows

such product was delivered or sold. The CPSIA expanded the scope of these provisions to cover

noncompliance with rules under all acts under CPSC jurisdiction and to provide additional means

of providing public notice.

3

CPSA §16 (codified at 15 U.S.C. §2065) and 16 C.F.R. §1118.2.

CPSA §19(a)(3) (codified at 15 U.S.C. §2068(a)(3)).

5

CPSA §27 (codified at 15 U.S.C. §2076).

6

CPSA §17(h) (codified at 15 U.S.C. §2066(h)).

4

7

The statute and regulations refer to the Secretary of the Treasury although such functions are now undertaken by

Department of Homeland Security (U.S. Customs and Border Protection (CBP)) pursuant to the Homeland Security

Act and 19 C.F.R. §§0.1-0.2.

8

CPSA §17(b) (codified at 15 U.S.C. §2066(b)).

9

Codified at 15 U.S.C. §2068.

10

Codified at 15 U.S.C. §2064.

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Prior to the CPSIA, if the CPSC determined after a hearing that a product presented a substantial

product hazard and that action under that provision was in the public interest, it could order the

manufacturer or any distributor or retailer of such product to take whichever of the following

actions it elected to take: (1) to bring the product into compliance with the applicable product

safety rule or repair the defect; (2) to replace the product with an equivalent product that does

comply or is not defective; or (3) to refund the purchase price. The CPSIA removed the ability of

the manufacturer, distributor or retailer to choose the remedial action to be taken and provides for

the CPSC to determine which action should be taken.

In addition to its authority with regard to a substantial product hazard, under CPSA §12, the

CPSC may bring an action in federal district court to have a product declared an imminent

hazard, defined as a consumer product which presents imminent and unreasonable risks of death,

serious illness, or severe personal injury, and to seize the product. If the court determines that a

product constitutes an imminent hazard, it may grant any relief necessary to protect the public,

including an order requiring public notification, recall, and remedies including repair,

replacement, or refund of such product.

Under the FHSA §15,11 the CPSC may order a manufacturer, distributor, or dealer to take

remedial action with respect to a banned hazardous substance similar to remedies under the

CPSA, including (1) giving public notice that an article or substance is a banned hazardous

substance; (2) mailing notice to each person who is a manufacturer, distributor, or dealer of such

article or substance; and (3) mailing such notice to every person to whom the person giving the

notice knows such article or substance was delivered or sold. The CPSC may also order the repair

of such article or substance, replacement with an equivalent compliant article or substance, or

refund. Similar notification and remedial actions may be ordered with respect to any toy or other

article intended for use by children that is not a banned hazardous substance but that contains a

defect which creates a substantial risk of injury to children.

The CPSC does not pay for the costs of a notice of product hazard or defect or any ordered repair,

replacement, or refund; costs are born by the manufacturer, distributor, or retailer. An order issued

under CPSA §1512 with respect to a product may require any person who is a manufacturer,

distributor, or retailer of the product to reimburse any other person who is a manufacturer,

distributor, or retailer of such product for such other person’s expenses in connection with

carrying out the order, if the CPSC determines such reimbursement to be in the public interest.

Also, no charge shall be made to any person (other than a manufacturer, distributor, or retailer)

who avails himself of any remedy provided under an order concerning repair, replacement, or

refund, and the person subject to the order shall reimburse each person (other than a

manufacturer, distributor, or retailer) who is entitled to such a remedy for any reasonable and

foreseeable expenses incurred by such person in availing himself of such remedy. FHSA §14(d)13

contains reimbursement provisions similar to CPSA §15.14 Any person who is a manufacturer,

distributor, or dealer of a noncompliant toy, article, or substance may be ordered to reimburse any

other person who is a manufacturer, distributor, or dealer of such toy, article, or substance for

such other person’s expenses in connection with carrying out a remedial or notification order, if

the CPSC determines such reimbursement to be in the public interest. Also, no charge shall be

11

Codified at 15 U.S.C. §1274.

Codified at 15 U.S.C. §2064.

13

Codified at 15 U.S.C. §1273(d).

14

Codified at 15 U.S.C. §2064.

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made to any person (other than a manufacturer, distributor, or dealer) who avails himself of any

remedy provided under a remedial order and the person subject to the order shall reimburse each

person (other than a manufacturer, distributor, or dealer) who is entitled to a remedy for any

reasonable and foreseeable expenses incurred in seeking such remedy.

CPSC has the authority to establish import standards and policy with regard to statutes and

products under its jurisdiction.15 Under the CPSA, importers are made subject to the same

responsibilities as domestic manufacturers in protecting American consumers from unreasonably

hazardous products. This is explicitly stated in the definition of “manufacturer” as any person

who manufactures or imports a consumer product. 16 Like the CPSA, the FHSA and the FFA

assign responsibilities to importers comparable to those of domestic manufacturers and

distributors.17 Various statutory provisions authorize the CPSC to ban noncompliant imports. If

the CPSC determines after a hearing that a product presents a substantial product hazard and that

action under that provision is in the public interest, it may issue an order prohibiting the

importation into the United States of that product.18 An imported consumer product may be

refused admission to the United States if it does not comply with an applicable consumer product

safety rule; does not comply with labeling and certification requirements relating to applicable

product safety standards; is an imminently hazardous product; or has a product defect which

constitutes a substantial product hazard.19 The CPSC may then inform the CBP20 that an imported

consumer product fails to comply with an applicable consumer product safety rule and/or has a

product defect which constitutes a substantial product hazard and may request the CBP to refuse

admission to any such consumer product. 21 As discussed in this report, the CPSIA has expanded

grounds for refusing admission to a product. Under FHSA § 14,22 a misbranded hazardous

substance or banned hazardous substance being imported or offered for import shall be refused

importation. Section 9 of the Flammable Fabrics Act (FFA)23 provides that imported products

subject to flammability standards under the FFA shall not be released from customs custody

except in accordance with § 499 of the Tariff Act of 193024 providing for release only after

inspection by CBP for compliance with U.S. laws. The CBP also has authority for the redelivery

or recall of products already released under bond but later found not to comply with flammability

standards and for obtaining liquidated damages for breach of a condition of the bond arising out

of a failure either to correct the product to comply or to redeliver it.

Such noncompliant or defective products must be destroyed or exported from the United States

unless they can be modified by the owner or consignee in a manner that will enable them to be

granted admission into the United States.25 The CPSC and the CBP have the authority to give the

owner or consignee the opportunity to make such modifications and to monitor such

15

Its policy on imported products, importers, and foreign manufacturers is set out at 16 C.F.R. §1009.3.

CPSA §3(a)(4) (codified at 15 U.S.C. §2052(a)(4)).

17

See FHSA §15(f) (15 U.S.C. §1274(f)); FFA §9 (15 U.S.C. §1198).

18

CPSA §15(d) (codified at 15 U.S.C. §2064(d)).

19

CPSA §17 (codified at 15 U.S.C. §2066).

20

CPSA §17(b) (codified at 15 U.S.C. §2066(b)).

21

16 C.F.R. §1115.21(d).

22

Codified at 15 U.S.C. §1273.

23

Codified at 15 U.S.C. §1198.

24

Codified at 19 U.S.C. §1499.

25

CPSA §17(c and e) (codified at 15 U.S.C. §2066(c and e)).

16

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modifications.26 Prior to the CPSIA, such products could also be ordered destroyed at the

discretion of the CPSC. The CPSIA made destruction mandatory, unless the CBP permits export

in lieu of destruction and the product is exported within 90 days of such permission. 27 Before the

CPSIA, at its discretion, the CPSC could condition importation of a consumer product on the

manufacturer’s/importer’s compliance with the inspection and recordkeeping requirements of the

CPSA. The CPSIA makes compliance with such requirements mandatory, meaning that an

imported product must be refused entry into the United States if the importer does not comply

with requirements related to its product.28 The CPSC may seek an injunction or seizure of a

consumer product that does not comply with a consumer product safety rule or that is being

manufactured, sold, distributed, or imported in violation of a CPSC order for remedial action or

prohibiting importation.29

With regard to imported products that are admitted and subsequently become the subject of a

recall, if the CPSC is not able to exercise jurisdiction over a foreign manufacturer that has no U.S.

subsidiary/presence, the CPSC may order the importer to undertake a recall and to be responsible

for the expense of a mandatory recall, since “manufacturer” is defined to include importers under

the CPSA.30 The importer cannot obtain reimbursement under the CPSA, but might be able to

obtain reimbursement from the foreign manufacturer as a contractual matter.31 Under CPSA

§17(f),32 the owner or consignee of an imported consumer product denied entry into the United

States must pay for all expenses in connection with its storage or destruction. In default of such

payment, these expenses shall constitute a lien against any future importations made by such

owner or consignee. Under FHSA §14(c),33 the owner or consignee must pay for all expenses

(including travel, per diem, or subsistence, and salaries of officers or employees of the United

States) in connection with the destruction of a hazardous substance denied importation into the

United States; the supervision of the relabeling or other action authorized to bring a hazardous

substance denied importation into compliance with the FHSA so that it may be granted

importation; and the storage for any hazardous substance denied importation. In default of such

payment, the FHSA, like the CPSA, provides that such expenses shall constitute a lien against

any future importations made by such owner or consignee. 34

The Office of Compliance and Field Operations within the CPSC conducts compliance and

administrative enforcement activities under all administered acts, provides advice and guidance

on complying with all administered acts, and reviews proposed standards and rules with respect

to their enforceability.35 Among other things, it reviews consumer complaints, conducts

inspections and in-depth investigations, and analyzes available data to identify those consumer

26

CPSA §17(c and d) (codified at 15 U.S.C. §2066(c and d)).

CPSA §17(e) (codified at 15 U.S.C. §2066(e)).

28

CPSA §§16(d) and 17(g) (codified respectively at 15 U.S.C. §§2065(d) and 2066(g)).

29

CPSA § 22 (codified at 15 U.S.C. §2071).

30

CPSA §15(e) (codified at 15 U.S.C. §2064(e)) for recall reimbursement and CPSA §3(a)(11) (codified at 15 U.S.C.

§2052(a)(11)) for definition of “manufacturer.”

31

See CPSA §15(e) (codified at 15 U.S.C. §2064(e)) and Riegel Textile Corp. v. Celanese Corp., 493 F. Supp. 511

(S.D.N.Y. 1980) (manufacturer has no cause of action against supplier under CPSA or FHSA for violation of those

statutes, but state cause of action under state laws may remain).

32

Codified at 15 U.S.C. §2066(f).

33

Codified at 15 U.S.C. §1273(c).

34

Id.

35

16 C.F.R. §1000.21.

27

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products containing defects that pose a substantial risk of injury or do not comply with existing

safety requirements. The Office negotiates and monitors corrective action plans for products that

are defective or fail to comply with specific regulations.

The Office of International Programs and Intergovernmental Affairs within the CPSC was

established to enable a more coordinated and comprehensive approach to international

cooperation with regard to harmonization of safety standards internationally and the ensuring of

compliance with U.S. safety standards for products imported into the United States. Memoranda

of understanding have been concluded with CPSC counterparts in various countries or regional

groups, including the People’s Republic of China, the European Union, and Canada.

The CPSC held a public meeting on September 4, 2008, to explain their plans to implement the

CPSIA and will continue to hold a series of such meetings.36

Current Legislation: P.L. 110-314

There have been a number of proposals in the 110th Congress to address a range of consumer

product safety issues. In addition to the two major CPSA reform bills that ultimately resulted in

P.L. 110-314, H.R. 4040 and S. 2045/S. 2663,37 there have been other comprehensive reform bills

and bills addressing discrete issues, including safety standards for cigarette lighters, All-TerrainVehicles or ATVs, furniture, swimming pools, portable gasoline containers, durable infant or

toddler consumer products such as strollers and cribs, and other products; certification of safetystandard compliance; the enactment of lead content standards for consumer products and more

stringent lead in paint standards; third-party testing for product safety and compliance; increases

in civil and/or criminal penalties; increases in CPSC personnel assigned to ports-of-entry; the

prohibition of sales or resales of products that are the subject of a recall; expanded jurisdiction of

the CPSC to cover amusement park rides at a fixed site; greater coordination among the various

agencies involved in consumer safety issues; and others. Language from some of the freestanding bills addressing specific issues was incorporated into the CPSIA.

The following sections will summarize the provisions of P.L. 110-314. The final text was the

result of a lengthy conference negotiation. The Senate-passed version of H.R. 4040 [hereinafter

Senate Text]38 and the House-passed version of H.R. 4040 [hereinafter House Text]39 contained

many similar provisions strengthening the authority and resources of the CPSC and also

establishing standards concerning lead content in children’s toys. However, the Senate Text

contained additional reform provisions, such as whistleblower protection and several provisions

concerning consumer product safety standards for specific items such as all-terrain vehicles and

garage door openers. Conversely, most of the provisions of the House Text had parallel provisions

in the Senate Text; the major exception was the provision adding a prohibition on industrysponsored travel by members or employees of the CPSC, a response to the much-criticized

36

Video and slide presentations for the meeting on September 4, 2008, and information on future meetings about

testing and certification and standards for all-terrain vehicles, lead, and phthalates, is available at http://www.cpsc.gov/

about/cpsia/cpsia.html, last visited September 22, 2008.

37

After the House passed H.R. 4040, the Senate took up S. 2663, a compromise version of S. 2045, and amended it on

the Senate floor, then amended H.R. 4040 to substitute the text of S. 2663 and passed it.

38

The short title for the Senate version of the bill is the CPSC Reform Act.

39

The short title for the House version of the bill is the Consumer Product Safety Modernization Act.

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practice by the CPSC of accepting travel and lodging expenses from industry sponsors for trips

related to CPSC business, that was widely reported after the S. 2045 markup. On July 29, 2008,

H.Rept. 110-787, the Conference Report for H.R. 4040, the Consumer Product Safety

Improvement Act of 2008, was released after several months of negotiations in the conference

committee to reconcile differences between the House and Senate versions of the bill. The bill

passed the House of Representatives and the Senate on July 30, 2008 (424-1) and July 31, 2008

(89-3), respectively. On August 14, 2008, President Bush signed the bill into law as P.L. 110-314.

CPSC Chairman Nord and Commissioner Moore each expressed approval of the final legislation,

with Chairman Nord expressing a desire for Congress to appropriate further funding to carry out

the new mandates of the legislation.40

Children’s Product Safety

Lead Content and Measurement (§101)

Under CPSIA §101, 15 U.S.C. §1278a, in products for children aged 12 and younger, the

permissible lead level will be phased in over three years at 600 parts per million (ppm) within 180

days of enactment, 300ppm after one year, and 100ppm after three years. If 100ppm is not

technically feasible, the CPSC must set the lowest level that is technologically feasible. After

promulgation of either the 100ppm level or the lowest level technologically feasible, the CPSC is

required to periodically review and lower the limit at least every five years. There are exceptions

for certain materials or products and inaccessible component parts. If the CPSC determines that it

is not technologically feasible for certain electronic devices to comply with the lead standard, it

must also issue requirements to minimize exposure or accessibility to lead in those devices. The

permissible lead level in paint is reduced to 0.009 percent (90 ppm) from 0.06 percent (600ppm),

subject to subsequent periodic review and reduction to the lowest lead level technologically

feasible. A CPSC Office of General Counsel memorandum clarifies that inventory of

noncompliant products may not be sold after this provision’s effective date of February 10,

2009.41 Although the CPSIA does not expressly ban such sale or distribution, the Office of

General Counsel concludes that a reading of the CPSIA as a whole indicates such an

interpretation.

Third-Party Testing and Certification of Children’s Products (§102)

Section 102 of the CPSIA amends CPSA §14 (codified at 15 U.S.C. §2063) to require

manufacturer certification of safety testing by accredited third-party laboratories of products

designed or intended primarily for children aged 12 and younger. The CPSC must issue

accreditation requirements for such laboratories and maintain a list of accredited laboratories;

deadlines for the publication of such requirements differ according to the type of product being

tested by the laboratory. Specific deadlines for publication of accreditation requirements after

CPSIA enactment are established for the testing of lead paint (30 days of enactment),42 cribs and

40

See CPSC Press Release 08-349, Chairman Nord’s statement, dated July 31, 2008, available at http://www.cpsc.gov/

cpscpub/prerel/prhtml08/08349.html (last visited September 19, 2008), and Commissioner Moore’s statement, dated

July 31, 2008, available at http://www.cpsc.gov/pr/Moore073108cpsia.pdf (last visited September 19, 2008).

41

Cheryl A. Falvey, CPSC General Counsel, the CPSC Office of General Counsel, Memorandum on Retroactive

Application of CPSIA to Inventory (September 12, 2008).

42

Third Party Testing for Certain Children’s Products: Notice of Requirements for Accreditation of Third Party

(continued...)

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pacifiers (60 days of enactment), small parts (90 days of enactment), children’s metal jewelry

(120 days of enactment), and baby bouncers/walkers/jumpers (210 days of enactment).

Accreditation requirements related to the testing of other children’s products must be published as

early as practicable, but no later than 10 months after CPSIA enactment or, for safety rules

established or revised one year or more after CPSIA enactment, not later than 90 days before such

rules take effect.

For three years after enactment, CPSC proceedings for promulgating accreditation requirements

are exempt from requirements of the Regulatory Flexibility Act and the rulemaking requirements

of the Administrative Procedure Act. Upon request, proprietary labs insulated from the influence

of the manufacturer/private labeler-owner may be accredited by the CPSC and permitted to test

products if they provide equal or greater protection than available third-party labs. CPSC

personnel are authorized to enter and inspect any accredited proprietary lab (CPSIA §215(a)). The

CPSC is required to establish requirements for the periodic audit of third-party testing labs as a

condition of continuing accreditation. The CPSC is authorized to revoke accreditation if

necessary after an investigation finding that a lab failed to follow a requirement established by the

CPSC or is unduly influenced by a manufacturer or government entity.

It is unclear which preemption provisions in the CPSA, as amended by the CPSIA, if any, apply

to this provision concerning third-party testing and certification. There are two preemption

provisions that are possible applicable. The new provision added by CPSIA §106(h), discussed

below, exempts from federal preemption any state/local toy safety standards in effect on the date

of CPSIA enactment, if the state/locality applies for exemption within 90 days of CPSIA

enactment. Under this provision, states/localities may also apply for exemption of future proposed

state/local toy safety standards. If the preemption provisions of CPSIA §106 do not apply, the

general preemption provisions under CPSA §26, which predate the CPSIA, might apply to the

testing and certification provisions, which are amendments to the CPSA. These provisions permit

states/localities to apply for exemption of a proposed safety standard or regulation which is

designed to protect against a risk of injury associated with a consumer product subject to a

consumer product safety standard under the CPSA. These provisions do not permit exemption of

existing state/local product safety standards or regulations which prescribe requirements for the

performance, composition, contents, design, finish, construction, packaging, or labeling and

which are designed to deal with the same risk of injury as the federal standard, unless such

requirements are identical to the those of the federal standard. It is unclear whether testing and

certification requirements may be considered consumer product safety standards for the purpose

of these preemption provisions.

Tracking Labels for Children’s Products (§103)

Effective one year after the CPSIA enactment, CPSIA §103 amends CPSA §14 (codified at 15

U.S.C. §2063) to require a manufacturer to place tracking labels on children’s products and

packaging, to the extent practicable, containing information (manufacturer, production date, and

production batch/run of the product) enabling the retailer and ultimate purchaser to identify

recalled products and enhancing the ability of the manufacturer to track unsafe products to their

precise sources. Advertisements, labels, and packaging for a consumer product will be prohibited

(...continued)

Conformity Assessment Bodies To Assess Conformity With Part 1303 of Title 16, Code of Federal Regulations, 73

Fed. Reg. 54564 (2008).

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from referring to a mandatory consumer product safety rule or a voluntary standard unless the

product complies with such rule or standard.

Standards and Registration Forms for Durable Nursery Products (§104)

Under CPSIA §104 (15 U.S.C. §2056a), the Danny Keysar Child Product Safety Notification Act,

the CPSC, in consultation with stakeholders and product engineers/experts, must establish

mandatory safety standards for a variety of durable nursery products for use by children under

five years of age. Such products include cribs, toddler beds, high chairs and booster/hook-on

chairs, gates and other enclosures, bath seats, play yards, stationary activity centers, infant

carriers, strollers walkers, swings, bassinets, and cradles. The CPSC is required to periodically

review and revise such standards to ensure the highest level of safety feasible for such products.

Any commercial users (including child care centers and hotels/motels) are prohibited from

manufacturing, selling, reselling, leasing, or providing for use any cribs that do not comply with

these mandatory safety standards. Manufacturers of durable children’s products must provide

consumers with registration forms in a required format/mode facilitating registration and to

maintain databases of registrants to be used to notify such consumers in the event of a product

recall or safety alert. The CPSC is required to study whether registration forms should also be

mandatory for other children’s products and to periodically review and assess the effectiveness of

alternative recall notification technologies.

Labeling for Certain Toy and Game Advertising (§105)

CPSIA §105 amends FHSA §24 (codified at 15 U.S.C. §1278), requiring choking hazard labelling

for certain toys and games, to require similar cautionary statements on or immediately adjacent to

advertising that provides a direct means of purchase, including advertising on Internet websites,

in catalogues, or other advertising materials. This requirement applies to advertisements by a

retailer, manufacturer, importer, distributor, or private labeler. A manufacturer, importer,

distributor, or private labeler is required to inform a retailer to whom it provides a product of any

cautionary statement requirement applicable to that product. A retailer is not liable for violating

the advertising requirement if it requested applicable cautionary statement information from a

manufacturer, importer, distributor, or private labeler who failed to provide such information or

provided false information. The statement must be displayed in a clear and conspicuous manner

and in the language primarily used in the advertisement, website, or catalogue. Certain format and

display requirements apply. The advertising requirements take effect for internet websites 120

days after enactment and for catalogues 180 days after enactment; the CPSC may grant a grace

period for catalogues. The distribution of a noncompliant advertisement is a prohibited act under

the CPSA.

Adoption of a Mandatory Toy Safety Standard (§106)

CPSIA §106 (15 U.S.C. §2056b) provides that ASTM International Standard F963-07, Consumer

Safety Specification for Toy Safety, the voluntary toy safety standard promulgated by the

American Society for Testing and Materials (ASTM), an independent standard-setting

organization, shall be deemed a mandatory interim consumer product safety standard, pending

review, in the form current on the date of enactment, with certain exceptions. The exceptions are

§4.2 and Annex 4 or any provision that restates or incorporates an existing mandatory standard or

ban promulgated by the CPSC. Within two years of CPSIA enactment, the CPSC must

promulgate this interim standard, with revisions to further enhance toy safety, by a final rule after

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reviewing it. The CPSC is required to periodically review and revise the rule to ensure the highest

level of toy safety.

ASTM is required to notify the CPSC if it proposes revisions to this standard. The proposed

revision will be incorporated into the CPSC rule and the revised standard will then be considered

a CPSC rule effective 180 days after the ASTM notification was received, unless the CPSC

notifies ASTM within 90 days of receiving such notification that it has determined that the

proposed revision does not improve the safety of the products covered by the standard. The

existing standard, without the proposed revision, will then continue to be the CPSC rule.

CPSIA §106(h) provides that nothing in the federal toy standard or in the CPSA statute

concerning preemption shall prevent a state or local safety requirement for toys or children’s

products from remaining in effect if it was in effect on the day before the date of CPSIA

enactment and the state or locality has filed the requirement with the CPSC within 90 days after

CPSIA enactment. Upon such application, the CPSC shall consider a proposed state or local

safety standard and shall grant the exemption if the state or local standard provides a significantly

higher degree of protection than the federal standard and does not unduly burden interstate

commerce.

Study of Disparities in Injury/Death Rates of Minority Children (§107)

Section 107 of the CPSIA requires the U.S. Government Accountability Office (GAO), within 90

days of the date of enactment of this legislation, to initiate a study, by itself or an independent

contractor, assessing racial/ethnic disparities in the risks and incidence of preventable injuries and

deaths related to suffocation, poisonings, and drownings, including those linked to the use of

cribs, mattresses, swimming pools, toys, and other products intended for use by children.

Minority populations in the study include Black, Hispanic, American Indian, Alaskan Native,

Native Hawaiian, and Asian/Pacific Islander children in the United States. GAO shall consult

with the CPSC as necessary. GAO is required to report its findings to the relevant congressional

committees not later than one year after the date of enactment of this legislation, including

recommendations for minimizing risks of preventable deaths and injuries among minority

children, for awareness and prevention campaigns targeting minority populations, and for

education initiatives to reduce current statistical disparities.

Ban on Specified Phthalates and Certain Alternatives in Certain Children’s

Products and Child Care Articles (§108)

Beginning 180 days after enactment of the CPSIA, §108 of the CPSIA (15 U.S.C. §2057c)

permanently bans the three phthalates (chemical plasticizers used in toys and other children’s

products) whose toxicity is not disputed and temporarily bans three other phthalates, pending a

review by a Chronic Hazard Advisory Panel (CHAP).43 It prohibits children’s toys or child care

articles that contain more than 0.1% di-(2 ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP),

or benzyl butyl phthalate (BBP). The sale of children’s toys or child care articles containing

concentrations of more than 0.1% of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP),

or di-n-octyl phthalate (DnOP) are prohibited on an interim basis until a review by a CHAP. After

43

For an analysis of this issue, see CRS Report RL34572, Phthalates in Plastics and Possible Human Health Effects,

by (name redacted) and (name redacted).

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the CPSC receives the report from the CHAP, it must determine, by rule, whether to continue the

interim ban; evaluate the CHAP findings and recommendations; and declare any children’s

product containing phthalates to be a banned hazardous product if it determines this necessary to

protect children’s health. This provision clarifies that it does not preempt state laws regulating the

use of phthalate alternatives not specifically regulated in a standard under the CPSA. “Children’s

toy” is defined as a product designed or intended for a use by a child 12 years of age or younger,

and “child care article” is defined as a product designed or intended for a child three years of age

or younger to facilitate sleep, feeding, sucking, or teething.

Strengthening Commission Administration and Resources

Reauthorization Years and Funding (§201)

Section 201(a) of the CPSIA amends CPSA §32(a) to authorize progressively increasing

appropriations annually. Out of these amounts, funding shall be made available for travel,

subsistence, and related expenses incurred for official duties of the Commissioners and

employees in attending meetings. This travel money is to be used in lieu of accepting funds from

outside sources, as further discussed below.

Table 1. Authorized Total Appropriations and Travel Component for CPSC,

FY2010-FY2014

Fiscal Year

Authorized Amount

Authorized Travel Amount

FY2010

$118,200,000

$1,200,000

FY2011

$115,640,000

$1,248,000

FY2012

$123,994,000

$1,297,000

FY2013

$131,783,000

$1,350,000

FY2014

$136,409,000

$1,403,000

Source: Section 201(a) of the CPSIA.

In addition to requiring the CPSC to report on personnel development efforts, CPSIA §201(b)

requires the CPSC to submit a report on funding allocation plans to the appropriate congressional

committees, not later than 180 days after enactment of the act. This report must include the efforts

of the CPSC to reach and educate second-hand retailers of consumer products, particularly with

regard to recalls of durable nursery products. Such education efforts shall include the

development of educational materials for distribution not later than one year after enactment of

the CPSIA.

Full Commission Funding and Interim Quorum (§202)

Under CPSA §4(d) (codified at 15 U.S.C. §2053), three commissioners of the five constitute a

quorum; two can constitute a quorum if necessary due to a vacancy on the Commission, but only

for six months after the vacancy occurs. Title III of Pubic Law 102-38944 limited funding to three

44

106 Stat. 1571, 1596 (1992) (codified as amended at 15 U.S.C. §2053 note).

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Commissioners from FY1993 and thereafter. This limitation impeded the Commission’s ability to

meet the quorum necessary to take certain actions. The limitation dated back to the mid-1980s

when Congress was contemplating restructuring the CPSC as a three-member commission or

replacing the Commission with a single administrator, which had been the Senate’s original

proposed scheme in its 1972 version of the legislation that ultimately became the CPSA.45 During

consideration of the 1990 reauthorization of the CPSC, the Senate bill would have permanently

reduced the CPSC to three members with a quorum of two, but ultimately the authorization of a

temporary quorum of two was adopted. 46 If a vacancy lasted longer than six months, as had been

the case recently, the Commission could not establish mandatory standards or engage in other

rulemaking or procedures, including taking certain enforcement actions requiring decisions by the

Commissioners, mandatory recalls, and corrective actions. The quorum requirements were

temporarily superseded by §2204 of P.L. 110-53,47 permitting two Commissioners, if they were

not affiliated with the same political party, to constitute a quorum for six months beginning on the

date of enactment of the act (August 3, 2007); this authority expired on February 3, 2008.

Section 202(a) of the CPSIA provides that, if they are not affiliated with the same political party,

two members shall constitute a quorum for one year beginning on the date of enactment of the

act. CPSIA §202(b) repeals the funding limitation, effective one year after enactment of the act, in

order to restore the CPSC to its full five-member size and prevent the recent quorum problems.

Personnel (§202(c))

Section 202(c) of the CPSIA (15 U.S.C. §2053 note) requires the CPSC to increase the number of

fulltime Commission employees to at least 500 by October 1, 2013, subject to the availability of

appropriations and, out of this number, requires the addition of an unspecified number of

personnel to be assigned to U.S. ports of entry or to inspect overseas production facilities.48

Under CPSIA §201(b), requiring a CPSC report to the appropriate congressional committees on

funding allocation plans, the CPSC must include the number of full-time investigators and other

full-time equivalents the CPSC intends to employ. This report must also include CPSC efforts to

develop standards for training product safety inspectors and technical staff and CPSC efforts and

policies encouraging scientific staff to seek appropriate publishing opportunities in peer-reviewed

journals and other media.

45

The funding limitation dates back to §101(b)(1) of P.L. 99-434, which incorporated by reference H.R. 5313, the

Department of Housing and Urban Development-Independent Agencies Appropriations Act, 1987, as passed by the

House, which contained the limitation. At that time, based on discussions with the authorizing committee and consumer

groups, the House Committee on Appropriations concluded that the five-member structure could not be justified any

longer and urged consideration of a change to a single administrator heading the agency. The committee’s apparent

interim solution was in effect to have a three-member Commission. H.Rept. 99-731 [for H.R. 5313] at 21 (1986). See

also GAO Report HRD-87-47, Consumer Product Safety Commission: Administrative Structure Could Benefit From

Change (1987); Robert S. Adler, From “Model Agency” to Basket Case—Can the Consumer Product Safety

Commission Be Redeemed?, 41 Admin. L. Rev. 61, 82-92 (1989).

46

H.R. 914, at 18 (1990).

47

Implementing Recommendations of the 911 Commission Act of 2007, 121 Stat. 266, 543.

48

Actual staffing level was 393 full-time equivalent staff in FY2007; 420 was planned for FY2008; and 444 was

requested for FY2009. CPSC, 2009 Performance Budget Request, at 78 (February 2008).

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Reports to Congress (§203)

Section 3003 of P.L. 104-66 (the Federal Reports Elimination and Sunset Act of 1995, codified as

amended at 31 U.S.C. §1113 note) provided that, with certain exceptions, reports required to be

submitted to Congress, as listed in H. Doc. 103-7, were terminated.

Section 203 of the CPSIA (15 U.S.C. §2076 note) requires that after the date of enactment of the

CPSIA, notwithstanding any rule, regulation or order to the contrary, the CPSC must comply with

the requirement of CPSA §27(k) (codified at 15 U.S.C. §2076(k)) that it submit copies to

Congress of budget recommendations, legislative recommendations and comments, and

testimony that it submits to the President or the Office of Management and Budget. These copies

are expressly exempted from the reporting limitations of P.L. 104-66.

Expedited Rulemaking Procedures (§204)

Critics alleged that the prior rulemaking procedures under CPSA §9 and other acts under the

CPSC’s jurisdiction, the FHSA and the FFA, were unnecessarily onerous, requiring procedural

steps beyond those required by the Administrative Procedures Act.

Section 204 of the CPSIA streamlines the rulemaking procedures under CPSA §9 and similar

provisions under the FHSA and FFA by eliminating the requirement for an advanced notice of

proposed rulemaking (ANPR), a step not required by the Administrative Procedure Act (APA).

This ANPR was required to include an invitation for persons to submit existing standards as

proposed consumer product safety standards or statements of intention to develop or modify a

voluntary standard, as well as commentary. Amendments conforming to the elimination of this

requirement are also made. CPSIA §204 clarifies that the elimination of the ANPR requirement

does not preclude a person from submitting all or part of an existing standard as a proposed

consumer product safety standard. The FHSA is also amended to eliminate the required use of

additional rulemaking procedures under the Food, Drug, and Cosmetic Act.

Technical amendments to the FHSA replace references to the Secretary of Health, Education and

Welfare (HEW) [now Health and Human Services (HHS)], which remained from the original

authority of the Secretary of HEW and the Food and Drug Administration over the FHSA, with

references to the CPSC. Technical amendments to the FFA replace references to the Secretary of

Commerce and the Federal Trade Commission (FTC), which remained from their original

authority over the FFA, with references to the CPSC. References to specific congressional

committees in the rulemaking provisions of the FHSA and the FFA are changed to references to

the “appropriate congressional committees.”

Inspector General Audits and Reports (§205)

Section 205 of the CPSIA (15 U.S.C. §2076b) requires the Inspector General of the CPSC to:

•

conduct reviews and audits to assess the CPSC’s capital improvement efforts,

including upgrades of its information technology system and the development of

the new public safety database, and the adequacy of the accreditation and

monitoring process for third-party testing laboratories;

•

within one year of enactment of the CPSIA, conduct a review of (1) CPSC

employee complaints concerning failures of other employees to properly enforce

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the rules and regulations of the laws enforced by the CPSC or otherwise carry out

responsibilities if such failures raise issues of conflicts of interest, ethical

violations, or the absence of good faith, and (2) CPSC actions to address such

complaints and failures;

•

submit annual reports with respect to the findings and recommendations resulting

from these audits and reviews to the appropriate congressional committees

beginning in FY2010;

•

transmit a report to the appropriate congressional committees within 60 days of

enactment of the CPSIA on the activities of the Inspector General, any barriers

preventing robust oversight of the CPSC by the Inspector General, and any

additional resources and authority needed for effective oversight.

This provision further requires the CPSC, within thirty days of enactment of the CPSIA, to

establish and maintain (1) a direct link from the homepage of the CPSC to the webpage of its

Inspector General, and (2) a mechanism on the Inspector General’s website by which individuals

may anonymously report cases of waste, fraud, or abuse with respect to the CPSC.49

Ban on Industry-Sponsored Travel (§206)

The CPSC has been criticized for the ethical issues raised by its practice of accepting funds from

industry groups to cover travel to meetings and conferences. 50 As noted above, CPSIA §201(a)

amends the authorization of appropriations in the CPSA to provide funds annually from FY2010

to FY2014 for travel to attend meetings and similar functions in furtherance of the official duties

of the Commissioners and employees. These funds are to be used in lieu of accepting payment or

reimbursement for such expenses from any person seeking action from, doing business with, or

conducting activities regulated by the CPSC or whose interests may be substantially affected by

the performance (or nonperformance) of a Commissioner’s or employee’s official duties.

CPSC Chair Nord supported these amendments.51 In the past, she had defended the practice of

accepting such paid travel to seminars and conferences as enabling industry education and

outreach concerning safety standards and CPSC procedures that otherwise would not have been

possible under the previous CPSC budgets.

Section 206 of the CPSIA adds a new §39 to the CPSA (15 U.S.C. §2086) with parallel language

prohibiting Commissioners and employees of the CPSC from accepting travel and related

expenses for any meeting or similar function related to official duties from a person seeking

action from, doing business with, or conducting activities regulated by the CPSC and whose

interests may be substantially affected by the performance of the Commissioner’s or employee’s

official duties.

49

The link is at the bottom of the CPSC home page at http://www.cpsc.gov and the anonymous report form is on the

Inspector General website at http://www.cpsc.gov/cgibin/igform.aspx, both last visited September 19, 2008.

50

154 Cong. Rec. S1561-2 (March 5, 2008) (remarks of Senator Klobuchar).

51

154 Cong. Rec. S1575 (March 5, 2008) (remarks of Senator Klobuchar).

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Information Sharing with Other Government Agencies (§207)

Section 207 of the CPSIA amends CPSA §29 (codified at 15 U.S.C. §2078) by authorizing the

CPSC to share information obtained under the CPSA with federal, state, local, or foreign

government agencies, notwithstanding the public disclosure requirements of the CPSA, where

there is a prior agreement or other written certification that such information will be maintained

in confidence and used only for law enforcement or consumer protection purposes and certain

other conditions apply. The CPSC may terminate such agreements if it determines that the other

agency has failed to abide by the conditions of the agreement. The CPSC shall not be required to

disclose information it obtained from a foreign government agency or foreign source, if such

information was provided on the condition of confidentiality, or through a CPSC reporting

mechanism sponsored in part by foreign government agencies. However, nothing in this provision

authorizes the CPSC to withhold information from Congress or prevents the CPSC from

complying with a federal court order in an action by the United States or the CPSC. Foreign

government agencies include multinational organizations comprising foreign states and vested

with law enforcement or investigative authority in civil, criminal, and administrative matters. The

CPSC must notify each state’s health department of any CPSC mandatory recall or any voluntary

recall of which it has been notified.

Employee Training Exchanges (§208)

Section 208 of the CPSIA (15 U.S.C. §2053a) authorizes the CPSC to engage in employee

exchanges with foreign government agencies so that officers and employees of the CPSC and the

foreign government agencies may receive or provide training. There is no requirement for

reimbursement or reciprocity; any reimbursement for expenses incurred by the CPSC shall be

credited to the appropriations account from which such expenses were paid. An officer or

employee of a foreign government agency who is employed by the CPSC as part of a training

exchange shall be considered a federal employee during such employment only for the purposes

of federal laws governing work injury compensation for federal employees, tort claims liability of

the Federal Government, federal employee ethics and government corruption crimes, and any

other law or regulation governing the conduct of federal employees.

Repeal of CPSA §30(d) (§237)

Section 237 of the CPSIA streamlines certain regulatory proceedings under the CPSA by

repealing CPSA §30(d) (15 U.S.C. §2079). The FHSA, FFA, and PPPA existed at the time the

CPSA was enacted in 1972 and separately provided for regulatory authority and proceedings.

When the CPSA was enacted, it included a requirement in CPSA §30(d) that a product which

could be regulated under the FHSA, FFA, or PPPA could only be regulated under the CPSA if the

CPSC first issued a rule finding that it was in the public interest to regulate a product under the

CPSA.

Cost-Benefit Analysis under the PPPA (§233)

A GAO report concerning the effectiveness of cost-benefit analyses by the CPSC found, inter

alia, that the CPSC often conducted such analyses in considering a consumer safety standard,

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even when not legally required to do so. 52 GAO noted that although the CPSA, FHSA, and FFA

required cost-benefit analyses in order to promulgate a standard, the PPPA did not. Nevertheless,

CPSC had conducted such analyses on several occasions in considering special packaging

standards under the PPPA. Apparently in response to such commentary, CPSIA §233 amends §3

of the PPPA, regarding establishment of special packaging standards, by clarifying that nothing in

the act shall be construed to require a cost-benefit analysis of a potential safety standard under the

act in order to promulgate such standard.

Enhanced Enforcement and Cooperation

Prohibition on Stockpiling (§213)

CPSA §9(g) (codified at 15 U.S.C. §2058(g)) authorizes the CPSC to prohibit manufacturers from

stockpiling products prior to the effective date of a consumer product safety rule; that is, from

manufacturing the product at a higher-than-normal rate between the date that a rule is

promulgated and the date it takes effect, in an attempt to circumvent the rule. This authority only

applied to safety standards and rules promulgated under the CPSA and not to standards or rules

promulgated under other statutes under CPSC jurisdiction such as the FHSA or FFA.

Section 213 of the CPSIA amends this provision so that it authorizes the prohibition of

stockpiling of products prior to the effective date of an applicable rule under any statute enforced

by the CPSC.

Prohibited Acts (§216)

Section 216 of the CPSIA increases the scope of acts prohibited under CPSA §19 (codified at 15

U.S.C. §2068) by adding new prohibited acts and by expanding the application of existing

prohibited acts. The additional or amended prohibitions include

•

the sale, manufacture, distribution, or importation of a product regulated by the

CPSC that does not comply with an applicable consumer product safety rule

under the CPSA or any similar rule, regulations, standard or ban under any

other act enforced by the CPSC [prohibition extends to products regulated under

other acts such as the FHSA];

•

the sale, manufacture, distribution, or importation of a product that is the subject

of a voluntary corrective action and recall of which either the CPSC has notified

the public or the seller, distributor, or manufacturer knew or should have known;

•

the sale, manufacture, distribution, or importation of a product that is the subject

of a CPSC order for a recall or corrective action or a court order declaring an

imminent hazard;

•

the sale, manufacture, distribution, or importation of a banned hazardous

substance, meaning a children’s article or toy which is a hazardous substance or

which contains a hazardous substance accessible to a child;

52

GAO Report GAO/HEHS-97-147, Consumer Product Safety Commission: Better Data Needed to Help Identify and

Analyze Potential Hazards, at 21-22 (1997).

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•

failure to furnish a required compliance certification or issuance of a false

compliance certification under any act enforced by the CPSC, including failure to

comply with requirements for testing, certification, and tracking labels for certain

children’s products;

•

sale, importation or distribution of a consumer product bearing a false safety

compliance certification mark;

•

misrepresentation to CPSC officers/employees of the scope of products subject to

recall/corrective action or a material misrepresentation in a CPSC investigation;

•

undue influence of a third-party laboratory with respect to testing a product for

compliance with safety standards under any act enforced by the CPSC;

•

the export for sale of any consumer product or substance regulated by the CPSC

(except for the re-export of a product denied importation into the United States)

that is the subject of a voluntary corrective action, a CPSC order for a recall or

corrective action, a court order declaring an imminent hazard, or that is a banned

hazardous substance (meaning a children’s article or toy which is a hazardous

substance or which contains a hazardous substance accessible to a child); and

•

violation of a CPSC order prohibiting an export under new subsection 18(c) of

the CPSA (see below).

In particular, the prohibition on the sale of products that are the subject of a mandatory or

voluntary recall closes a gap in the prior law, which permitted the continued sale of inventory that

is the subject of a recall. The export restrictions are also new, since previously there were no

restrictions on exports of recalled products or banned hazardous substances, beyond a

requirement to notify the CPSC and the receiving country that an export did not comply with a

U.S. safety standard or was a banned hazardous substance. In general, these CPSIA amendments

prohibit violations of the new requirements under the CPSIA. Section 216 also makes a

conforming amendment to CPSA §17(a)(2) to prohibit the importation of a consumer product that

does not have a required certificate or label or has a false certificate.

Penalties (§217)

Section 217 of the CPSIA increases the civil and criminal penalties under the CPSA, the FHSA,

and the FFA. The maximum civil penalty increases from $8,000 to $100,000 for each violation

and from $1.825 million to $15,000,000 for a related series of violations.53 Not later than

December 1, 2011, and every five years thereafter, the maximum civil penalty must be adjusted

for inflation. Several factors must be considered in determining civil penalties under the CPSA,

the FHSA, and the FFA, including the nature, circumstances, extent and gravity of the violation,

in addition to those currently enumerated in these acts. The CPSC must consider mitigation of

undue adverse economic impacts on small businesses. Not later than one year after enactment, the

CPSC must promulgate regulations providing its interpretation of the criteria to be considered in

imposing civil penalties. The amendments to the civil penalties take effect on the earlier of the

date on which the final criteria regulations are issued or the date one year after enactment.

53

In accordance with statutory guidelines, the amounts specified in the statute before amendment by the CPSIA, $5,000

and $1.25 million, were adjusted for inflation in 2004 to $8,000 and $1.825 million for individual violations and a

related series of violations, respectively. 69 Fed. Reg. 68884 (2004).

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The criminal penalties increase to a maximum of five years imprisonment, a fine pursuant to 18

U.S.C. §3571 (establishing the maximum monetary fines), or both, for knowing and willful

violations of the CPSA and the FFA and for violations with intent to defraud or mislead or repeat

offenses under the FHSA. Penalties may also include forfeiture of assets associated with the

criminal violation of the CPSA or any other statutes enforced by the CPSC. Section 217 of the

CPSIA also removes the requirement in the CPSA that directors, officers, and agents have

knowledge of a notice of noncompliance in order to be subject to criminal penalties separate from

those imposed on their corporation.

Enforcement by State Attorneys General (§218)

Prior to its amendment by the CPSIA, CPSA §24 (codified at 15 U.S.C. §2073), entitled “Private

Enforcement of Product Safety Rules and of Section 15 Orders,” provided for a cause of action

that could be brought by “[a]ny interested person (including any individual or nonprofit, business,

or other entity)” in a federal district court to enforce a consumer safety rule or corrective action

order by an injunction. Despite the section heading and the absence of an express reference to

state attorneys general, this provision apparently had been understood to authorize enforcement

actions by state attorneys general, limited to injunctive relief. The FHSA and FFA were amended

in 1990 to expressly authorize state attorneys general to enforce consumer safety rules under

those statutes by obtaining injunctive relief. This amendment was justified and premised on the

existence of similar authority under the CPSA.54 However, it appears that this authority was

rarely, if ever, used by state attorneys general, as there apparently was no reported case precedent

for such an action; it appears that state attorneys general more typically took action under state

consumer protections laws, while urging the CPSC to take action under federal laws.

Section 218 of the CPSIA amends CPSA §24 (codified at 15 U.S.C. §2073) by renaming the

section “Additional Enforcement of Product Safety Rules and of Section 15 Orders” and adding a

new subsection expressly authorizing state attorneys general (or other authorized state officer) to

bring an action in any federal district court where the defendant is found or transacts business to

obtain injunctive relief against certain prohibited acts under the CPSA.55 Such actions are subject

to certain conditions, similar to the procedures in CPSA §24 and other similar consumer

protection statutes.56 A state must give 30-day written notice to the CPSC before filing a civil

54

See H.Rept. 101-567 at 17 (1990), and H.Rept. 101-914 at 28 (1990), referring to private enforcement actions by

interested parties including state attorneys general; see also Consumer Federation of America and U.S. Public Interest

Group v. Consumer Product Safety Commission, 990 F.2d 1298, fn. 12 at 1304 (1993) (seventeen state attorneys

general signed an amicus brief in which, inter alia, they “emphasize that they ‘have the authority under [the CPSA

private enforcement provision] and [their states’] consumer protection statutes to enforce [a youth] ban on behalf of

[their] citizens’” (the “youth ban” refers to a rule that would ban all new adult-size ATVs for use by children under 16

years old).

55

These violations include prohibitions on the sale of noncompliant products or recalled products, failure to certify or

label products, false certifications or labeling, false safety certification marks, stockpiling of products before the

effective date of a new standard, and violation of a cellulose insulation standard. The CPSIA does not authorize state

attorneys general to enforce certain violations that involve requirements specific to federal authorities, such as not

making facilities or records available for inspection by CPSC officials and failure to provide certain information or

notification to the CPSC as required.

56

In addition to the aforementioned FHSA and FFA provisions, codified at 15 U.S.C. §1264(d) and 15 U.S.C.

§1194(a), respectively, see e.g., 5 U.S.C. §15c (codified provision of the Clayton Antitrust Act); 15 U.S.C. § 5712(a)

(codified provision of the Telephone Disclosure and Dispute Resolution Act of 1992, providing for regulations

concerning advertising for, operation of, and billing and collection procedures for, pay-per-call or “900 number”

telephone services); 15 U.S.C. § 1603 (codified provision of the Telemarketing and Consumer Fraud and Abuse

Prevention Act, providing for regulations defining and prohibiting deceptive, coercive, and invasive telemarketing acts

(continued...)

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action, except when a state has determined that immediate action is necessary to protect its

residents from a substantial product hazard as defined in CPSA §15(a). In such cases, a state may

file a suit immediately after notifying the CPSC of such determination. The CPSC may intervene

in such civil actions to be heard on all matters arising from such actions and to appeal decisions in

such actions. A state cannot bring a civil action where the same alleged violation is the subject of

a pending criminal or civil action brought by the Federal Government, aside from suits alleging a

violation of the ban on selling, manufacturing, distributing, or importing a product that is

noncompliant, subject to a mandatory/voluntary corrective action, or a children’s product that is a

banned hazardous substance.

Any outside private counsel retained to assist in such state civil actions is prohibited from sharing

with parties in other private civil actions arising out of the same facts any information that is

subject to a litigation privilege and was obtained during discovery in the state attorney general’s

action, or from otherwise using such information in the other private civil actions.

In addition to the new state civil enforcement authority in the CPSA, CPSIA §217 adds a

conforming provision to the PPPA authorizing state civil enforcement of a standard or rule under

that act, subject to the procedural requirements of the CPSA.

Nothing in the new CPSA authority for state civil enforcement actions or in the similar provisions

in the FHSA, FFA, and PPPA shall be construed as preventing a state attorney general or other

state officer from exercising his/her powers under the state laws or as prohibiting him/her from

proceeding in state or federal court on the basis of an alleged violation of any civil or criminal

state statute.

Whistleblower Protections (§219)

Notwithstanding criticism of whistleblower protection by CPSC Acting Chair Nord,57 CPSIA

§219 adds a new §40 to the CPSA (15 U.S.C. §2087) to provide whistleblower protections for

private sector employees. Such protections are not provided for federal, state, and local

government agency employees; the compromise reached in the conference agreement eliminated

proposed coverage of government employees. 58 New CPSA §40 establishes a remedy for an

employee of a manufacturer, private labeler, distributor, or retailer, who believes that he/she has

been subjected to adverse employment actions in retaliation for (1) providing information to the

(...continued)

or practices); and 15 U.S.C. §6504 (codified provision of the Children’s Online Privacy Protection Act, enabling

parents to control what information is collected from their children online). These provisions authorize states or state

attorneys general on behalf of their states and their citizens to bring civil suits to obtain violations of the relevant

federal laws, in some cases, monetary damages as well as injunctive relief.

57

Congress DailyPM (February 20, 2008), available at http://nationaljournal.com/pubs/congressdaily/.

58

Federal employees have whistleblower protection under the Whistleblower Protection Act of 1989, P.L. 101-12, 103

Stat. 16 (codified as amended at 5 U.S.C. §1201 et seq. See also CRS Report RL33918, The Whistleblower Protection

Act: An Overview, by (name redacted). State and local employees may have protection under the laws of their state.

The report for S. 2045, an earlier version of the Senate bill concerning consumer product safety reform, described the

earlier whistleblower provision as containing an intergovernmental mandate as defined in the Unfunded Mandates

Reform Act (UMRA) because it would have required state and local governments to comply with whistleblower

protections authorized in the bill. However, the Congressional Budget Office estimated that the costs to governments of

complying with the mandate would be small and would not exceed the threshold established in the UMRA. S.Rept.

110-265 at 22 (2008).

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employer, Federal Government, or a state attorney general relating to a violation of any laws,

rules, orders, standards, or bans enforced by the CPSC; (2) testifying in or otherwise cooperating

with a proceeding concerning such violation; or (3) objecting to or refusing to participate in any

activity or policy that the employee reasonably believed would be a violation of laws, rules,

orders, standards, or bans enforced by the CPSC. The remedy is not available to an employee

who, of his/her own volition, intentionally caused a violation of any laws, rules, orders, standards,

or bans enforced by the CPSC.

The employee can file a complaint with the Secretary of Labor within 180 days of the alleged

retaliatory action. The Secretary must then notify the person named as responsible for the

retaliation and give him/her an opportunity to respond to the allegations. The Secretary must

dismiss a complaint unless the complainant shows that the whistleblowing activities were a

contributing factor in the adverse employment action. If the complainant shows this, but the

employer shows, by clear and convincing evidence, that it would have taken the same

unfavorable action in the absence of the whistleblowing activities, then the Secretary cannot

further investigate the complaint. Otherwise, within 60 days of the complaint filing, the Secretary

of Labor must conduct an investigation to determine whether there is reasonable cause to believe

the complaint has merit and issue findings in writing, with a preliminary relief order where

merited. Within 30 days of notification of the findings, the defendant can object and request a

hearing; otherwise, the order becomes final and not subject to judicial review. The new provision

establishes the standards for burden of proof and evidence.

Within 120 days of the hearing, the Secretary of Labor must issue a final relief order or denial. If

the Secretary determines that retaliation has occurred, the Secretary shall order the person

responsible for the retaliation to take affirmative steps to redress the retaliation; to reinstate the

complainant to his or her former position with compensation, including back pay, and other

terms, conditions, and privileges of his/her employment; and to provide compensatory damages.

At the request of the complainant, the Secretary can also assess a sum of the aggregate amount of

all costs and fees reasonably incurred by the complainant for bringing the complaint.

If the Secretary of Labor finds that the complaint was frivolous or in bad faith, the employer may

be awarded attorneys’ fees to be paid by the complainant. If the Secretary has not issued a final

decision within 210 days of the complaint filing or within 90 days of a written determination, the

complainant can bring an action for de novo review in a federal district court with jurisdiction,

without regard to the amount in controversy. The same burdens of proof for the administrative

hearing apply to the judicial review. The court has jurisdiction to grant all relief necessary to

make the employee whole, including injunctive relief and compensatory damages (including

reinstatement with the same seniority status, back pay with interest, and special damages such as

reasonable attorney’s fees, expert witness fees, and litigation costs).

Except where a person has already sued in federal court as described in the above paragraph, any

person adversely affected by a final administrative order can appeal to the federal appellate court

having jurisdiction in the area where the violation allegedly occurred or in which the complainant

resided when the violation allegedly occurred. Such appeal does not stay the relief order unless so

ordered by the court. If such direct appeal is not made, the administrative order cannot be

judicially reviewed in other proceedings.

The Secretary of Labor can file a civil action in a federal district court for the District of

Columbia or where the violation occurred to enforce an order against a person who has failed to

comply. The court can grant all appropriate relief, including, but not limited to, injunctive relief

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and compensatory damages. Also, a person for whom an order of relief was granted may bring an

action in a federal district court to require compliance, without regard to the amount in

controversy or diversity of citizenship of the parties. The court may award court costs and fees as

appropriate.

Any nondiscretionary duty imposed by this section is enforceable in a mandamus proceeding

under 28 U.S.C. §1361.

Federal Law Preemption (§231)

Certain provisions of the CPSA, FHSA, FFA, and PPPA establish the extent to which those acts

preempt, limit, or otherwise affect any other federal, state, or local law or affect any cause of

action under state or local law. Section 231(a) of the CPSIA (15 U.S.C. §2051 note) clarifies that

these provisions may not be expanded, contracted in scope, limited, modified, interpreted, or

extended in application in any rule, regulation, preamble, statement of policy, etc., of the CPSC.

The CPSC may not construe the statutory preemption provisions as preempting any cause of

action under state or local common law or state statutes regarding damage claims.

The purpose of these provisions apparently is to prevent the CPSC from issuing directives or

statements purporting to preempt state common-law tort causes of action in the preambles to

regulations that it promulgates, such as it did with the “Standard for the Flammability (Open

Flame) of Mattress Sets.”59 Pursuant to Executive Order 12988 of February 5, 1996,60 the Federal

Register notice issuing the final rule for the mattress standard explained the Commission’s

understanding of the preemptive effect of the Flammable Fabrics Act. Citing congressional intent

evidenced in the legislative history and statutory text, the “Commission intends and expects that

the new mattress flammability standard will preempt inconsistent state standards and

requirements, whether in the form of positive enactments or court created requirements.” Such

preemption directives apparently have become more common in recent years, causing concern

among opponents61 and observations by some legal scholars that these directives have become a

“backdoor” method of expanding federal objectives.62 In the absence of express congressional,

statutory direction with regard to preemption, agencies may interpret the preemptive intent

through such directives and regulations. 63 Commentators have noted that the federal courts are

divided on the issue of the level of deference the courts should give to such agency preemption

directives. 64

59

71 Fed. Reg. 13472, 13496-7 (2006), promulgating 16 CFR Part 1633, with a preemption directive at § N of the

notice for the final rule.

60

Section 3(b)(1)(A) of the Executive Order, 61 Fed. Reg. 4729, 4732 (2006), requires agencies to make every

reasonable effort to ensure that a regulation, as appropriate, “specifies in clear language the preemptive effect, if any, to

be given to the regulation.”

61

Catherine M. Sharkey, Symposium: Is the Rule of Law Waning in America? Twelfth Annual Clifford Symposium on

Tort Law and Social Policy: Article: Preemption by Preamble: Federal Agencies and the Federalization of Tort Law,

56 DePaul L. Rev. 227, 233 (2007) (citing critics of preemption preambles inside and outside the Consumer Product

Safety Commission); Christine H. Kim, The Case for Preemption of Prescription Drug Failure-to-Warn Claims, 62

Food Drug L.J. 399 (2007) (noting criticism of the Bush Administration for using preemption to accomplish “silent tort

reform”).

62

Id.

63

Sharkey, supra note 61, at 245.

64

Sharkey, supra note 61, at 242-7; Kim, supra note 61, at 419-421 (discussing cases in the context of Food and Drug

Administration preambles with preemption directives); Thomas C. Galligan, Jr., U.S. Supreme Court Tort Reform:

(continued...)

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Section 231(b) of the CPSIA clarifies that nothing in the CPSIA or the FHSA shall be interpreted

as preempting or otherwise affecting state warning requirements established under state laws in

effect prior to August 31, 2003.

As discussed on page 11 of this report, the CPSIA includes certain preemption provisions

regarding state toy standards. The CPSIA does not provide for federal preemption of state thirdparty testing and certification requirements.

Enhanced Inspection, Public Notice, and Recall

Public Disclosure of Information (§211)

The CPSIA reduces the previous protections for disclosure of product information by amending

CPSA §6 (codified at 15 U.S.C. §2055). This section provides for certain safeguards for the

public disclosure of information on products that are identified as specific products of named

manufacturers. Proprietary/trade secret information may not be disclosed, and information

protected from disclosure by the Freedom of Information Act (FOIA) may not be disclosed. The

manufacturer must be notified and given the opportunity to review information to be disclosed

with regard to confidentiality and accuracy within a minimum period of time prior to disclosure,

unless the CPSC finds that public health and safety require a lesser period of notice and publishes

this finding. If the CPSC disagrees with the manufacturer and decides to disclose allegedly

confidential or inaccurate information over the objections of the manufacturer, the manufacturer

may sue in federal district court to enjoin disclosure. Certain types of information disclosure are

exempt from these safeguards, including information regarding an imminently hazardous product,

a violation of the CPSA, a rulemaking proceeding, an adjudicatory proceeding, or other

proceeding under the CPSA. Consumer advocates and retailer critics of this provision prior to

amendments made by the CPSIA asserted that these safeguards unnecessarily hindered the

disclosure of safety and recall information, while industry advocates sought stronger protections

with regard to substantiation and disclosure of information on product categories with problems

that are not common to all manufacturers.65

Section 211 of the CPSIA reduces prior disclosure protections in several ways:

•

A manufacturer/private labeler must respond within 15 days after the CPSC

notifies it of the opportunity to mark as confidential information that could

permit the public to identify it as the manufacturer/labeler of a product. Although

the CPSA previously did not specify a time within which the

manufacturer/labeler must respond, CPSC regulations concerning disclosures

under the Freedom of Information Act (16 C.F.R. §1015.18) require a response in

(...continued)

Limiting State Power to Articulate and Develop Tort Law—Defamation, Preemption, and Punitive Damages, 74 U.

Cin. L. Rev. 1189, 1223-43 (2006) (discussing leading cases re preemption of state tort claims); Howard L. Dorfman,

Vivian M. Quinn & Elizabeth A. Brophy, Presumption of Innocence: FDA’s Authority to Regulate the Specifics of

Prescription Drug Labeling and the Preemption Debate, 61 Food Drug L.J. 585, 597-601 (2006) (discussing deference

to agency interpretation of rules and regulations; the article generally discusses preemption issues re pharmaceuticals).

65

See, e.g., GAO Report GAO/HEHS-97-147, Consumer Product Safety Commission: Better Data Needed to Help

Identify and Analyze Potential Hazards 28-32 (1997), for a discussion of the disclosure rules and policies and the views

of industry and consumer advocate groups.

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five working days to a notice concerning information previously submitted to the

CPSC by the manufacturer/labeler. These regulations also require that a response

must accompany information submitted after a CPSC notice of the opportunity to

request confidentiality (the submission may indicate a final confidentiality

response within 10 working days of the new submission).

•

The amendment reduces from 30 to 15 days before disclosure the time within

which the CPSC must notify a manufacturer/labeler of an intended disclosure and

provide the opportunity to comment on accuracy, and from 10 to five days the

time within which the CPSC must notify a manufacturer/labeler that it will still

disclose information claimed to be inaccurate based on a CPSC determination

that the disclosure is accurate and fair.

•

The CPSC is no longer required to publish in the Federal Register a finding that

public health and safety require a lesser period of notice to the manufacturer, as it

was before the CPSIA; it may publish this in any manner.

•

Exemption of certain information from the disclosure protections is expanded to

include violations of any rule or law enforced by the CPSC, not just the CPSA,

and information for which the CPSC publishes a finding that public health and

safety requires disclosure with a lesser period of notice and comment on accuracy

than normally required.

•

The CPSC is authorized to file a request for expedited consideration in a civil

action in the federal district court for the District of Columbia to enjoin the

disclosure of allegedly inaccurate information. However, such expedited

consideration is not available in an action to enjoin disclosure on the grounds that

it is protected or confidential under other laws. The Conference Report noted the

Conferees’ view that such expedited consideration should not delay action on

other important matters before the court, such as Class A or B felonies.66

Establishment of a Public Consumer Product Safety Database (§212)

Section 212 of the CPSIA adds a new section 6A to the CPSA (15 U.S.C. §2055a), establishing a

publicly available, searchable, internet-accessible database on the safety of consumer products

within two years of enactment. This provision resolves the issues some database opponents had

with the database provision of the Senate-passed version of H.R. 4040. CPSC Acting Chair Nord

previously had criticized the mandatory database under the Senate-passed version of H.R. 4040

(to be established without a study concerning feasibility, effectiveness, or other concerns) because

it would have permitted publication of information and complaints received from consumers

before the CPSC had the opportunity to vet the information for validity or accuracy and also

because its implementation would have required 25 percent of the CPSC budget. 67 However,

proponents of the database pointed out that the National Highway Transportation Safety

Administration already has such a database including automobile complaints reported by

consumers that is publicly accessible through its website.

66

H.Rept. 110-787 at 70.

Congress DailyPM (for February 20, 2008, and for March 11, 2008), available at http://nationaljournal.com/pubs/

congressdaily/.

67

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The CPSC currently maintains the National Electronic Injury Surveillance System (NEISS),68

which is accessible to the public through the CPSC website.69 According to the CPSC website,

“NEISS injury data are gathered from the emergency departments of 100 hospitals selected as a

probability sample of all 5,300+ U.S. hospitals with emergency departments. The system’s

foundation rests on emergency department surveillance data, but the system also has the

flexibility to gather additional data at either the surveillance or the investigation level.”70 The

database mandated by the CPSIA is more comprehensive, drawing information from a variety of

sources, including consumers. GAO has concluded that the current data systems, including

NEISS, upon which the CPSC depends in prioritizing its regulatory and enforcement activities,

are inadequate.71

Under new CPSA §6A, the CPSC must transmit to Congress, within 180 days of the enactment of

the CPSIA, a detailed plan for establishing and maintaining this database, including integration of

the database into the CPSC’s overall information technology improvement plans (the CPSC must

expedite such plans). The plan shall include a detailed implementation schedule and plans for a

public awareness campaign. Not later than 18 months after the plan is submitted, the CPSC must

establish the database. The database shall include

•

reports of harm (injuries, illness, death, or risks of injuries, illness, or death)

relating to the use of consumer products, and other substances regulated by the

CPSC, that are received by the CPSC from consumers, government agencies,

health care professionals (such as physicians, hospitals and coroners), child

service providers, and public safety entities (such as police and firefighters);

•

information derived from a notice for a mandatory recall of a substantial product

hazard or a notice for a voluntary corrective action;

•

comments that a manufacturer/private labeler requests be included in the

database to respond to information concerning its products; and

•

any additional information the CPSC determines to be in the public interest.

The new section establishes requirements for information to be included in reports submitted to

the CPSC and for the mode of submission. The information on the database must be organized

and categorized so that the information is sortable and retrievable by the date of submission, the

name of the consumer product, the model name, the manufacturer’s/private labeler’s name, and

other information fields that are in the public interest. The CPSC shall provide a clear and

conspicuous notice that the CPSC does not guarantee the accuracy, completeness, or adequacy of

the database contents. The name and address of a person submitting a report of harm for a product

may not be disclosed by the CPSC, except that such information may be provided to the

manufacturer/private labeler of the product with the express written consent of such person for

the purpose of verifying the report.

68

CPSA §5(a) (1) requires the maintenance of an Injury Information Clearinghouse “to collect, investigate, analyze and

disseminate injury data and information relating to the causes and prevention of death, injury and illness associated

with consumer products....”

69

See http://www.cpsc.gov/library/neiss.html.

70

From the CPSC website description of NEISS, available at http://www.cpsc.gov/cpscpub/pubs/3002.html.

71

GAO Report GAO/HEHS-97-147, Consumer Product Safety Commission: Better Data Needed to Help Identify and

Analyze Potential Hazards 13-19 (1997).

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The safeguard restrictions of CPSA §6(a and b), briefly discussed in the previous section of this

report, do not apply to the database disclosure of reports received from consumers, health-care

providers, public safety entities, and government agencies. However, such safeguards apply to

database information received via a report of a safety risk from a manufacturer, distributor or

retailer under CPSA §15(b)or any other mandatory or voluntary reporting program established

between the CPSC and a manufacturer, retailer, or private labeler.

Reports must be available on the database within 15 business days of receipt. Any information

determined to be duplicative or inaccurate shall not be included when the report is added to the

database or, if the report is already on the database, be removed or corrected within 7 business

days of such determination. Within five business days of receipt, the CPSC is required to submit a

report of harm to the manufacturer, who then has 10 business days to respond, to request the

inclusion of its comments on the database, and to vet the report for and designate confidential or

protected information. The CPSC must redact in the database any information it determines to be

protected (trade secret or FOIA). If the CPSC determines that the designated information is not

protected, it shall so notify the manufacturer or private labeler, who may bring an action seeking

removal of such information from the database in the federal district court where it resides or has

its principal place of business or in the District of Columbia.

The CPSC is required to submit an annual report to the appropriate congressional committees on

the operation of the database, including the cost and the number of reports and comments

received, posted, and corrected or removed. Within two years of the establishment of the

database, the GAO shall submit a report to the appropriate congressional committees containing

an analysis of the general usefulness of the database, including an assessment of whether a broad

range of the public uses the database and finds it useful, and recommendations for measures to

increase use of the database by consumers and to ensure use by a broad range of the public. The

Conference Report notes that, as part of general authorizations for FY2010 to FY2014, the

Conferees authorized $25,000,000 to establish and maintain this database and to upgrade and

integrate the CPSC information technology systems.72

Substantial Product Hazard Reporting Requirement (§214(a)(2))

Section 15 of the CPSA (15 U.S.C. §2064) requires manufacturers, distributors, and retailers to

inform the CPSC when they learn that a product they distributed fails to comply with a consumer

safety rule/standard, poses a substantial product hazard, or creates an unreasonable risk of injury

or death. Prior to amendment by the CPSIA, the language of the provision did not include

notification of noncompliance with rules or standards promulgated by the CPSC under other acts

in its jurisdiction.

Section 214(a)(2)(A) of the CPSIA expands the scope of CPSA §15(b) to require manufacturers,

distributors, and retailers of any product or substance regulated by the CPSC, except for motor

vehicle equipment, to notify the CPSC about products that do not comply with any rule,

regulations, standard, or ban promulgated by the CPSC under any act.

Section 214(a)(2)(C) of the CPSIA further amends CPSA §15(b) to provide that a notification to

the CPSC that a product fails to comply with a rule promulgated under the FHSA, FFA, or PPPA

may not be used as the basis for criminal prosecution under the FHSA except for offenses

72

H.Rept. 110-787 at 68 (2008).

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requiring a showing of intent to defraud or mislead. The Conference Report clarifies that the

Conferees included this provision “to avoid an unjust result under a possible construction of

section 5 that provides for strict liability for criminal enforcement without regard to any

applicable requirement of knowledge, intent, or willfulness in such situations. . . . The Conferees

do not intend for [this] to be used to shelter bad actors . . . but rather to ensure that there are no

unintended impediments to the flow of information to the Commission.”73 The House report, in

discussing a similar provision in the House-passed version of H.R. 4040, clarifies that this applies

when such notification constitutes the sole basis for criminal liability without a requirement of

knowledge, willfulness, or intent.74 The CPSA criminal offenses require knowledge and

willfulness. The FFA offenses generally require willfulness, although the FFA offense of failure to

notify the CPSC of the export of a non-compliant product does not. Other acts administered and

enforced by the CPSC do not provide for criminal penalties.

Enhanced Public Notice of Substantial Product Hazards

Section 214(a)(3) of the CPSIA improves public notification by amending CPSA §15(c) (codified

at 15 U.S.C. §2064(c)) to authorize the CPSC to order a manufacturer, distributor, or retailer of a

product presenting a substantial product hazard to give public notice of such hazard via its

website, notice to third-party internet sellers of the product, announcements in languages other

than English, and announcements on radio and television where the CPSC determines that a

substantial number of consumers may not be reached by other types of notice. This section further

clarifies that the CPSC may require any notices under CPSA §15(c)(1) to be distributed in a

language other than English, if it determines that doing so is necessary to adequately protect the

public.

Enhanced Authority for Corrective Action Plans and Recalls (§214)

Section 214 of the CPSIA enhances the authority of the CPSC to order corrective action plans and

recalls in several ways. Section 214(a)(1) of the CPSIA expands the definition of “substantial

product hazard” under CPSA §15(a)(1) (codified at 15 U.S.C. §2064(a)(1)) to include failure to

comply with a rule, regulation, standard, or ban under any act enforced by the CPSC, as well as

with an applicable consumer product safety rule under the CPSA.

Section 214(a)(3 and 4) of the CPSIA amends CPSA §15(c and f) (codified at 15 U.S.C. §2064(c

and f)) to enhance recall authority by

73

74

•

expanding the scope of the hazard notification authority to include products

against which an imminent hazard action has been filed in federal court as well as

products determined by the CPSC to be a substantial hazard;

•

authorizing the CPSC to order a manufacturer, distributor, or retailer to cease

product distribution; notify other persons involved in transporting, storing,

handling, or distributing the product to cease distribution; and to notify

appropriate state and local health officials;

H.Rept. 110-787 at 71.

H.Rept. 110-501 at 39 (2007).

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•

requiring the CPSC to rescind any order concerning an allegedly imminently

hazardous product if a federal district court determines that the product is not an

imminently hazardous product; and

•

clarifying that the requirement for a hearing prior to the issuance of an order to

cease distribution and notify the public of a substantial product hazard does not

apply to an order concerning a product against which the CPSC has filed an

imminent hazard action.

Section 214(b) amends CPSA §15(d) (codified at 15 U.S.C. §2064(d)) to strengthen CPSC

authorities relating to corrective action plans by

•

authorizing the CPSC to order public notice and corrective actions it determines

are in the public interest and removes the ability of the manufacturer, distributor

or retailer to choose which corrective action it may take;

•

expanding and clarifying the scope of CPSC authority to include orders to

conform with requirements of applicable rules, regulations, standards, or bans,

not just applicable consumer product safety rules;

•

requiring a CPSC corrective action order to include a requirement that the person

to whom the order applies must submit a plan for such action to the CPSC for

affirmative approval in writing, replacing the current passive requirement that the

plan be satisfactory to the CPSC;

•

authorizing the CPSC to order an amendment of a corrective action plan if it

finds that the approved plan is ineffective or inappropriate and requiring it to

consider whether a repair or replacement changes the intended functionality of

the product; and

•

authorizing the CPSC to revoke its approval of an action plan if it finds that a

person has failed to comply substantially with its obligations under the action

plan and prohibiting such person from distributing the product after receiving

notice of such revocation.

Requirements for Recall Notice Content (§214(c))

CPSIA §214(c) adds a new subsection 15(i) to the CPSA (15 U.S.C. §2064(i)) that requires the

CPSC, within 180 days of enactment of the CPSIA, to establish guidelines for the information to

be included in any recall/corrective action notice or imminent hazard notice that would aid

consumers in identifying/understanding the specific product recalled, the nature of the associated

hazard, and any available remedies. The provision further details the type of information required

to be contained in a recall notice of a substantial product hazard. This information includes the

model or stock keeping unit (SKU) number, common product names, photograph, description of

action being taken, the number of product units for which such action is being taken, description

of the substantial product hazard, identification of the manufacturers and distributors of the

product, the dates the product was manufactured and sold, details of any deaths or injuries

associated with the product, remedies available to the consumer, and any other information the

CPSC deems necessary.

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Identification of Supply Chain (§215(b))

Section 215(b) of the CPSIA amends CPSA §16 (codified at 15 U.S.C. §2065), regarding

inspection and recordkeeping, by adding a new subsection (c) to require importers, retailers or

distributors of a consumer product or other product or substance regulated by the CPSC to

identify the manufacturer upon the request of a CPSC officer or employee. Conversely, a

manufacturer is similarly required to identify each retailer or distributor whom the manufacturer

directly supplied with a consumer product and each subcontractor involved in the manufacture of

such product or from whom the manufacturer obtained a component of such product.

Financial Responsibility (§224)

Section 224 of the CPSIA adds a new section 41 to the CPSA (15 U.S.C. §2088), requiring the

CPSC, in consultation with U.S. Customs and Border Protection (CBP) and other relevant federal

agencies, to identify any consumer product, or other product or substance regulated by any statute

enforced by the CPSC, for which the cost of destruction would normally exceed the bond

amounts under the customs laws and to recommend a bond sufficient to cover the costs of

destroying the product.

The new section further provides for a GAO study to determine the feasibility of mandating an

escrow, proof of insurance, or other security to cover the costs of destruction of a domestically

produced product or substance regulated under any act enforced by the CPSC or the costs of an

effective recall of a domestic or imported product or substance regulated by the CPSC. The GAO

must submit a report on the results of this study to the appropriate congressional committees

within 180 days of enactment of the CPSIA, including an assessment of whether such

requirements could be implemented and recommendations for implementation.

Annual Reporting Requirement (§209)

Section 209 of the CPSIA amends the annual reporting requirement under CPSA §27(j) (codified

at 15 U.S.C. §2076(j)) to include information on the number and summary of recall orders issued

under CPSA §§12 and 15; a summary of voluntary actions taken by manufacturers in consultation

with the CPSC and with public notice by the CPSC; and an assessment of such orders and

actions. Additionally, within one year of the date of enactment of the CPSIA, the annual report

shall include progress reports and incident updates with respect to corrective action plans ordered

under CPSA §15(d); injury and death statistics for substantial product hazards under CPSA

§15(c); and the number and type of communications from consumers to the CPSC for each

product for which the CPSC orders corrective action.

Inspection of Certified Proprietary Laboratories (§215(a))

Section 215(a) of the CPSIA amends CPSA §2065(a) (codified at 15 U.S.C. §2065(a)) to

authorize CPSC officers and employees to enter and inspect certified proprietary laboratories.

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Safety of Imported and Exported Products

Export of Recalled and Nonconforming Products (§221)

Section 221 of the CPSIA amends CPSA §18 (codified at 15 U.S.C. §2067) to authorize the

CPSC to ban the exportation from the United States of any consumer product that does not

comply with U.S. consumer product safety rules, unless the importing country permits

importation of such product into that country. The CPSC must notify the importing country of the

impending shipment. If the importing country has not notified the CPSC of its import permission

within thirty days of the CPSC notice, the CPSC may take appropriate action to dispose of the

product. These restrictions do not apply to the exportation of a product refused admission into the

United States and permitted by U.S. customs authorities to be exported in lieu of destruction.

Related conforming amendments are also made to the FFA.

Prior to amendment, CPSA §18 permitted the export of products that do not comply with U.S.

consumer safety rules to other countries, requiring only that the CPSC had to notify the

appropriate agencies in the foreign countries that such products were being exported to those

countries.

Development of Methodology to Identify Unsafe Imports (§222)

Section 222(a and b) of the CPSIA (15 U.S.C. §2066 note) requires the CPSC, within two years

of enactment of the act, to develop a risk assessment methodology to identify consumer product

shipments that are intended for import into the United States and are likely to include products

that violate CPSA §17(a) (15 U.S.C. §2066(a)) and other import laws enforced by the CPSC. In

developing this methodology, the CPSC is required to

•

use, as far as practicable, the International Trade Data System (ITDS) established

under the Tariff Act of 1930 to evaluate and assess information about shipments

of consumer products intended for import into the United States;

•

incorporate this methodology into its information methodology modernization

plan; and

•

examine how to share information maintained by the CPSC, including the public

database and substantial product hazard list, for the purpose of identifying

shipments of noncompliant products.

Section 222(d) of the CPSIA requires the CPSC, not later than 180 days of completion of the risk

assessment methodology, to submit a report to the appropriate congressional committees

including

•

a plan for implementing the methodology;

•

an assessment of whether the CPSC requires additional statutory authority to

implement the methodology;

•

the level of appropriations necessary to implement the methodology;

•

changes made or to be made to the CPSC memorandum of understanding with

the CBP;

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Consumer Product Safety Improvement Act of 2008: P.L. 110-314

•

the status of CPSC access to the Automated Targeting System and the

development of the Automated Targeting system rule; and

•

the status of the effectiveness of the International Trade Data System in

enhancing cooperation between the CPSC and CBP to identify non-compliant

shipments.

Cooperation with U.S. Customs and Border Protection (§222(c))

Section 222(c) of the CPSIA (15 U.S.C. §2066 note) requires the CPSC, within one year of

enactment of this act, to develop a plan for sharing information and coordinating with CBP to

improve enforcement and consumer protection. This plan must consider

•

the number of CPSC personnel that should be stationed at U.S. ports of entry to

identify shipments of consumer products that violate import safety laws enforced

by the CPSC;

•

the nature and extent of cooperation between CPSC and CBP personnel in

identifying such noncompliant shipments;

•

the number of CPSC personnel that should be stationed at the National Targeting

Center of CBP, including the nature and extent of cooperation with the CBP, the

responsibilities of the CPSC personnel, and usefulness of information at the

Center in identifying noncompliant shipments;

•

the development of rules for the Automated Targeting System and expedited

access of the CPSC to the System; and

•

the information and resources necessary for the development, updating, and

effective implementation of the risk assessment methodology.

Substantial Product Hazard List and Destruction of Unsafe Imports (§223)

Section 223 of the CPSIA adds a new subsection (j) to CPSA §15 (codified at 15 U.S.C. §2064(j))

requiring the CPSC to specify by rule, for any consumer product or class of products,

characteristics that constitute a substantial product hazard, if such characteristics are readily

observable and covered by voluntary standards that have been effective in reducing the risk of

injury and experience substantial compliance. A person adversely affected by such a rule may

petition for judicial review under the CPSA not later than 60 days after promulgation of the rule.

CPSIA §223 amends a couple provisions to require rather than permit certain actions with regard

to imports. CPSA §17(e) (codified at 15 U.S.C. §2066(e)), formerly permitting CBP to destroy

products refused importation into the United States in lieu of exportation, is amended to require

the destruction of such products unless the CBP permits export in lieu of destruction and such

products are exported within ninety days of export approval. CPSA §17(g) (codified at 15 U.S.C.

§2066(g)), formerly permitting the CPSC, at its discretion, to condition importation on a

manufacturer’s compliance with inspection and recordkeeping requirements, is amended to

require manufacturers of imports to comply with all inspection and recordkeeping requirements

or the products will be refused admission. The CPSC must advise the customs authorities of who

is not in compliance. A related new subsection (d) of CPSA §16 (codified at 15 U.S.C. §2065(d))

requires the CPSC, by rule, to condition manufacturing, selling, distributing, or importing any

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consumer product or other product on the manufacturer’s compliance with the inspection and

recordkeeping requirements of the CPSA and the related rules.

Study of CPSC Authority Related to Imported Products (§225)

Section 225 of the CPSIA requires GAO, within one year of the enactment of this act, to conduct

a study of the authorities of the CPSA to assess their effectiveness in preventing the importation

of unsafe consumer products and to submit a report of its findings to the appropriate

congressional committees. This report must include recommendations with respect to plans to

prevent such importation; inspection of foreign manufacturing plants by the CPSC; and a

requirement that foreign manufacturers consent to the jurisdiction of U.S. courts for enforcement

actions by the CPSC.

Miscellaneous Provisions

Adoption of a Mandatory All-Terrain Vehicles (ATVs) Safety Standard (§232)

CPSIA §232 adds a new CPSA §42 (15 U.S.C. §2089), requiring the CPSC to publish in the

Federal Register, as a mandatory consumer product safety standard, the American National

Standard for Four Wheel All-Terrain Vehicles Equipment Configuration and Performance

Requirements developed by the Specialty Vehicle Institute of America (American National

Standard ANSI/SVIA-1-2007). It is unlawful for a manufacturer or distributor to import or

distribute a non-compliant ATV in commerce in the United States or, until a three-wheel ATV

standard is issued, a new three-wheeled ATV. Upon revision of these standards by the standardsetting organizations, the CPSC must incorporate by a rule revisions that are related to safe

performance and any additional changes necessary to reduce an unreasonable risk of injury. The

CPSC must also consider strengthening additional ATV safety standards.

Formaldehyde Study (§234)

GAO is required to conduct a study on the use of formaldehyde in the manufacturing of textiles

and apparel not later than two years after the enactment of the CPSIA.

Expedited Judicial Review

CPSIA §236 provides for expedited judicial review of a consumer product safety rule relating to

the identification of substantial hazards under CPSA §15(j); all-terrain vehicles under CPSA §42;

durable infant and toddler products under CPSIA §104; and mandatory toy safety standards under

CPSIA §104. A person adversely affected by such a rule may petition in the U.S. Court of

Appeals for the District of Columbia Circuit for expedited judicial review of the rule within 60

days of its promulgation. The judgment of the court affirming or setting aside the rule is final,

subject to review by the U.S. Supreme Court. A rule to which expedited judicial review applies is

not subject to judicial review in proceedings relating to imported products under CPSA §17 or in

civil or criminal proceedings for enforcement.

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Definitions

Among other technical and conforming changes, CPSIA §235 adds definitions for “appropriate

congressional committees,” “children’s product,” and “third-party-logistics provider.”

“Appropriate congressional committees” are defined as the Committee on Energy and Commerce

of the House of Representatives and the Committee on Commerce, Science, and Transportation of

the Senate.

“Children’s product” is defined as a consumer product designed or intended primarily for children

12 years of age or younger. Several factors are to be considered in determining whether a product

is primarily intended for a child 12 years of age or younger, including a manufacturer statement

or label about the intended use of the product; whether the packaging, display, promotion or

advertising of the product represents it as appropriate for use by children 12 years of age or

younger; whether the product is commonly recognized by consumers as being intended for use by

children 12 years of age or younger; and the Age Determination Guidelines issued by the CPSC

in 2002.75

“Third-party logistics provider” is defined as a person who solely receives, holds or otherwise

transports a consumer product in the ordinary course of business but who does not take title to the

product. CPSIA §235 also adds third-party logistics providers to the list of carriers that are not

deemed to be manufacturers, distributors, or retailers of a consumer product under the CPSA

solely by reason of receiving or transporting a consumer product in the ordinary course of their

business and thus are exempt from the requirements of the CPSA.

Pool and Spa Safety Act Technical Corrections

CPSIA §238 amends the Virginia Graeme Baker Pool and Spa Safety Act 76 by adding a definition

of “state” to the act and by providing for the adoption by the CPSC of revisions made to the pool

and spa safety standard by the American Society of Mechanical Engineers, an independent

standard-setting organization (the earlier act had mandated adoption of the voluntary standard).

Provisions Deleted in the Conference Agreement

The Senate Text contained several provisions concerning consumer safety product standards or

studies concerning specific consumer products that did not have counterparts in the House Text

and ultimately were not included in the final text of the conference agreement, 77 including

(section numbers from Senate Text)

•

garage door openers (§31);

•

carbon monoxide poisoning from portable gas generators and charcoal briquettes

(§32);

75

Timothy P. Smith, ed., CPSC, Age Determination Guidelines: Relating Children’s Ages To Toy Characteristics and

Play Behavior (2002).

76

P.L. 110-140, title XIV, 121 Stat. 1492, 1794 (2007).

77

P.L. 110-278, the Children’s Gasoline Burn Prevention Act, 122 Stat. 2602 (2008), adopted safety standards for

child-resistant closures on portable gasoline containers similar to Senate Text §28.

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•

cigarette lighters (§33); and

•

equestrian helmets (§41).

Although the House Text did not include such provisions because its sole focus was reform of the

CPSC and its authority and enforcement powers, language in H.Rept. 110-501 (2007) directed the

CPSC to take action concerning single-product issues, including

•

the promulgation by the CPSC of a final rule on cigarette lighters;

•

a public awareness campaign concerning smoke alarms and smoke detection

systems;

•

a consideration of a safety standard concerning the warning labels for the lead

content of ceramic food containers or serving ware;

•

a consideration of CPSC authority to regulate pet toys that could be used by

children and possible rules concerning the lead content and use of lead paint in

such pet toys;

•

a consideration of the tipping hazards of home appliances and furniture and

possible safety standards; and

•

a study of injuries and deaths related to toy guns and possible rules for marking

of toys guns distinguishing them from actual firearms.78

The House Committee on Energy and Commerce noted in its report that it became aware of the

potential dangers posed by asbestos in toys late in the legislative process and would take up these

issues in subsequent hearings and legislation.

The Conference Report echoed all the concerns noted above, directing the CPSC to consider

these issues and take action regarding safety standards for such products and hazards.79

Additionally, the Conference Report recognized nanotechnology as a new, emerging technology

used in the manufacture of consumer products and expressed its expectation that the CPSC would

review the technology and the safety of its application in consumer products.80

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

78

H.R. 5471, to require the Consumer Product Safety Commission to prescribe rules requiring distinctive markings on

toy and look-alike firearms (cosponsored by Towns and Blackburn).

79

H.Rept. 110-787 at 67, 75-77 (2008).

80

Id. at 68.

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