Consumer Product Safety Improvement Act Off to Rough Start
Reprinted from The Safety Record, Volume 6, Issue 2, March/April 2009
WASHINGTON – When the Consumer Product Safety Improvement Act was signed into law last August, proponents characterized it as the most significant upgrade to the U.S. Consumer Product Safety Commission’s powers since the agency was established in 1972. But, according to a new report, the implementation of these sweeping changes “is not going well.”
The April report, compiled by the Congressional Research Service, describes an agency overwhelmed with multiple statutory deadlines,” and a business community beset by confusion over the new lead limits for products intended for children 12 and under. Small businesses, and consignment and thrift stores have had the toughest time understanding how the law applies to their older inventory, but other industries have also been paralyzed. The report noted that despite the CPSC’s attempts to clarify the new regulations, fear of incurring costly penalties for violating the CPSIA, or of enforcement actions by state attorneys general, or liability lawsuits are stifling sales of older merchandise.
Alarmed by a record 448 recalls last year, Congress passed the Consumer Product Safety Improvement Act this summer. It requires the CPSC to expand its regulation of children’s products and to toughen its oversight of imported products. It also gave the CPSC more recall authority, more money and staff – raising the funding from $80 million in 2008 to $136 million in 2014 and increasing fulltime staffing from 420 to 500. With these tools, CPSC was expected to improve children’s product safety, import safety, enforcement and administrative procedures. Instead, the agency finds itself besieged by industry requests to delay implementation and unable to claim absolute authority over its decisions to create a more orderly transition to the new rules.
The broadest and most troublesome provisions ban paint and children’s products that contain more than a minimal amount of lead or phthalates (a plasticizer added to polyvinyl chloride [PVC] to make it more flexible) and expanded the definition of children’s products to include all goods that are primarily intended for those under the age of 12.
The ATV industry, for example, is grappling with the Commission’s recent decision to allow them to sell older models of youth ATVs that exceed the strict lead limits. The Commission’s only two members granted a two-year stay of enforcement, to give companies time to unload their inventory. The industry had argued for relief, saying that the lead in the non-compliant models is necessary for durability and to prevent corrosion and that it is found in components that children are unlikely to come in contact with.
They had pleaded for time to design and test models that would contain less lead, but many are reluctant to accept the agency’s response as definitive. Trade organizations fear that the stay does not shield them sufficiently from liability lawsuits or other state and federal actions and are now looking for Congress to amend the law.
The act empowers state attorneys general to enforce the CPSIA, meaning they could ignore the commission’s stay and prosecute a retailer for violating the law. The CPSC has no authority over attorneys general to require that they honor any of the commission’s exemptions or temporary suspensions.
Republican Chairman Nancy Nord famously lobbied against most of the provisions of the act, such as those that would expand the agency’s staff and budget. She also objected to the ban on lead in children’s products, calling it impractical, and asked congress to strike the portion of the bill allowing attorneys general to prosecute violators. In attempting to mediate between panicked industries and fast-moving deadlines, Nord has repeatedly told trade groups that the CPSC cannot amend the act and has complained about its prescriptive nature.
In January, the Motorcycle Industry Council also sought a temporary final rule to exclude a class of materials found in motorcycles so that those products would not be in violation of the CPSIA. But the CPSC’s General Counsel responded that the agency did not have the authority, under the act, to grant it. “Currently, dealers around the nation say they have taken roughly $100 million worth of child-sized bikes off showroom floors. Dealers fear stiff fines for selling non-compliant products— various components (including battery terminals and tire stems) exceed the new lead limits,” the report said.
Other manufacturing organizations also got a glass-half-full response to their requests for relief. A group led by the National Association of Manufacturers (NAM) petitioned the agency to delay the February 10 effective date and issue compliance guidance. Instead the commission offered “limited relief” from enforcement of testing and certifications for one year for manufacturers and importers of regulated products, including products intended for children. But the NAM coalition protested that the enforcement stay only confused the issue, because the enforcement stay did not exempt them from complying with the CPSIA requirements, and still left manufacturers open to prosecution.
The agency also tried to better explain the duties and responsibilities of re-sellers of children’s products and ended up sowing more confusion. The January Guidance Intended for Resellers of Children’s Products Thrift and Consignment Stores attempted to emphasize that the commission’s enforcement priority was manufacturers and reiterated that the CPSIA does not require resellers to test their children’s products for compliance on lead limits. But the agency also said: “However, resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.”
In the meantime, several members of Congress, including Congressman John D. Dingell, chairman emeritus of the House Committee on Energy and Commerce Chairmen and Senators John D Rockefeller and Mark L. Pryor,and Representatives Henry A. Waxman and Bobby L. Rush, the Subcommittee Chairmen of the Senate and House committees responsible for overseeing the CPSC have attempted to sort it out, sending letters to the agency demanding that it act quickly to dispel the confusion and address the implementation issues. The latter four also wrote to President Obama blaming Nord for mishandling the CPSIA and strongly suggesting new leadership was needed. Despite this, says the congressional report, “it is still far from clear whether the problem is with the CPSIA itself or with the manner in which the CPSC is administering it. And, by the same token, it is uncertain whether the agency could resolve many of the issues itself, or if it is wholly a matter for Congress to decide.”
President Barack Obama’s choice to replace Nord, Inez Moore Tenenbaum, will inherit these problems if the Senate confirms her nomination. The former South Carolina education superintendent is likely to have more allies on the commission. Under the CPSIA, the body will expand to five members. Obama has also nominated Robert Adler, a professor legal studies at the University of North Carolina, an advisor to former commission members and a member of Consumers Union’s board of directors, to serve on the CPSC.