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House and Senate Approve Tough Product Safety Law

Aug 1, 2008 | Parker Waichman Alonso LLP

We have been reporting on legislation to increase government regulation of consumer products, including toys, and bans on some toxic chemicals, such as lead.  And, while there have been concerns that President Bush may lean toward a veto, earlier this week the House overwhelmingly passed such legislation in a 424-1 vote with Representative Ron Paul—Republican-Texas—the lone House member in opposition. The Senate approved the bill in an 89-3 vote yesterday. .

In its final version, the bill signifies an uncommon compromise in an election-year Congress that is best known for partisan animosity.  Representative Joe Barton, a Texas Republican who heads the House Energy and Commerce Committee, said the package was "a strong bill.  We don't ban or outlaw products on no science or bad science; there will be reputable science," he said.  Among other actions, the bill increases funding—the CPSC’s budget will double—and regulatory pull at the CPSC.  The CPSC—the Consumer Product Safety Commission—is the government agency responsible for testing product safety and removing unsafe items from market.

The bill also allows the CPSC to increase fines and other penalties for companies found to be out of compliance with the new rules.  Companies must certify they are enforcing safety standards not only in factories in the United States—and, more likely Asia—but also in toy design.  Toy manufacturers were mostly supportive of the bill and Bill Locker, counsel for the Toy Industry Association, which represents toy manufacturers, said the bill is "robust and tough … it's going to greatly enhance the ability of the agency to do its job and will enhance the safety of the products that are sold in the United States," he said.  They won't just be able to certify it, Locker said. "They'll have to back those up with evidence of compliance."

The bill permanently bans three chemicals in a toxic and controversial group known as phthalates.  Phthalates are used to soften plastics in toys and are linked to reproductive development and endocrine problems.  Three additional phthalates are temporarily banned pending a safety review by regulators and the National Academy of Sciences.  The newly enacted bill also bans lead in children's toys, except in trace amounts.  Consumer and environmental groups were thrilled with the legislation, especially on its phthalate ban.  "This long-overdue action is not only a victory for parents and children, but an encouraging sign that Congress recognizes that our chemical regulatory system needs reform," said Jane Houlihan, vice president of the Environmental Working Group.

The CPSC has been sharply criticized since last year after dozens of toys, many of which were manufactured in China and sold by some of the largest names in the toy industry, were recalled for lead and other dangerous toxins; choking and strangulation hazards; and issues with small magnets, which can be swallowed and travel through the body, causing dangers when two magnets finally meet, especially in and around major organs.

"It should be a given that toys are not dangerous," said House Speaker Nancy Pelosi (Democrat-California).