House Passes Consumer Product Safety Improvement Act Conference Report

(On December 19, 2007, the House passed its version of H.R. 4040, and on March 6, 2008, the Senate passed its version of this measure. A House-Senate conference was held to resolve the differences between the House and Senate versions of H.R. 4040. The conference report, just passed by the House, is the product of that conference.)

Conference Report Must Still be Passed by Senate; Enacted by President

The conference report must now be passed by the Senate after which it would be sent to the President for approval (enactment).

(Press reports indicate that the Senate is expected to pass the H.R. 4040 conference report on July 31, 2008.)

Highlights of Conference Report According to Press Release

According to a press release by the House Republican Conference, the highlights of the conference report of H.R. 4040 are as follows (partial list):

Lead in Children's Products. The Conference Report would establish specific limits on lead content in children's products. Any children's product that contains more lead than these limits allow would be treated as a banned hazardous substance, under the Federal Hazardous Substances Act. The Consumer Product Safety Commission (CPSC) would periodically review and revise the lead content limits downwards, at least every five years. Certain products could be excluded from the lead content standards, at the determination of the CPSC.

Lead paint standard. The Conference Report would also establish a more stringent lead paint ban than currently permitted under Federal standards. The acceptable level of lead content in paint would be reduced from .06% to .009%.

Third party testing. The Conference Report language requires third party testing of certain children's products. Certain requirements for the accreditation of the third party testers are set forth in the report. The Conference Report would also authorize the CPSC to inspect manufacturers' proprietary laboratories.

Children's products tracking labels. Within one year, manufacturers of children's products would be required to place marks on packaging to identify the location and date of the product's production.

Nursery products standards. The CPSC would be required to examine and assess the effectiveness of voluntary consumer product safety standards for infant and toddler products, and promulgate standards at least as stringent as the voluntary standards. The CPSC would then be required to promulgate rules within one year of this assessment, and periodically review the standards to ensure high levels of safety. The CPSC would also require infant and toddler product manufacturers to provide consumers with a registration form, and maintain a record of their contact information. In addition, the CPSC would have to review recall notification technology and assess the effectiveness of this technology in facilitating recalls of infant and toddler products.

Labeling requirement for toys and games. The Conference Report would require any toy or game advertisement that provides a direct means for purchase of the product to include a cautionary statement, if such a statement is required for that toy or game. The cautionary statement would have to be prominently displayed in the advertisement language, in conspicuous and legible type.

Mandatory toy safety standards. The Conference Report would make the American Society for Testing and Materials (ASTM) International standard the interim consumer product safety standard, pending an evaluation by the CPSC. The CPSC would then be required to establish mandatory standards by rule, after the relevant components of the standard were evaluated. The Conference Report would also require the CPSC to periodically review its rules to ensure the highest level of safety for toys. States or other political subdivisions would be able to promulgate their own standards, if the CPSC finds they provide a higher degree of protection from injury and do not unduly burden interstate commerce.

Phthalates in children's products. The Conference Report would permanently prohibit the sale of children's toys or child care articles that contain more than a set level of three phthalates¹. Three additional phthalates would be temporarily prohibited in children's products small enough to be put into a child's mouth. The sale of these products containing more than the acceptable levels would be prohibited on an interim basis until a review by a Chronic Hazard Advisory Panel (CHAP). After receiving the report from the CHAP, the CPSC would determine whether to continue the interim prohibition, to set alternative acceptable levels, or to repeal the prohibition altogether.

Import safety management with CBP. The Conference Report would require that one year after H.R. 4040's enactment, the CPSC develop a plan for sharing information and coordinating with U.S. Customs and Border Protection (CBP) to identify shipments of consumer products that are in violation of the CPSA.

Consumer product safety database. The Conference Report would require the CPSC to establish and maintain a publicly available and searchable database on the safety of consumer products.

All-terrain vehicles (ATVs). The Conference Report would require the CPSC to publish a mandatory consumer product safety standard, the American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration, and performance requirements for ATVs, as well as ban Three Wheel ATVs.

Prohibited acts/penalties. The Conference Report would prohibit the sale, importation, or manufacturing of recalled products, and increase the civil penalty to $100,000 for each violation and up to $15 million for a related series of violations.

Industry sponsored travel ban for CPSC employees. The Conference Report would prohibit members or employees of the CPSC from accepting travel, subsistence, or related expenses from a person seeking official action from, doing business with, or conducting activities regulated by the CPSC.

Whistleblower protections. The Conference Report contains limited whistleblower protections for employees of retailers, manufacturers, and distributors that are similar to protections afforded by Congress to employees in many other sectors of the economy.

CPSC funding. The Conference Report would reauthorize the CPSC at the following funding levels: $118.2 million for fiscal year (FY) 2010; $115.64 million for FY 2011; $123.994 million for FY 2012; $131.783 million for FY 2013; and $136.409 million for FY 2014.

¹According to the press release, phthalates are esters that are used as plasticizers (substances added to plastics to increase their flexibility). They are used to turn a hard plastic into a flexible plastic. Such materials may often be found in plastic toys.

(See future issues of ITT for BP series of summaries of the conference report.

See ITT's Online Archives or 07/29/08 news, 08072902, for BP summary of the Conferees reaching agreement on this consumer product safety legislation, with links to related summaries.

See ITT's Online Archives or 03/19/08 and 01/07/08 news, 08031915, and 08010710, for BP summaries of the Senate's version of H.R. 4040 and the House's version of H.R. 4040, respectively.)

House Energy and Commerce Committee press release (dated 07/30/08) available at http://energycommerce.house.gov/Press_110/110nr335.shtml

House Republican Conference Press Release of H.R. 4040's conference report (dated 07/30/08) available at http://gop.gov/c/portal/layout?p_l_id=PUB.1.111&p_p_id=56_INSTANCE_2Y0o&p_p_action=0&p_p_state=normal&p_p_col_id=column-2&p_p_col_pos=0&p_p_col_count=2&_56_INSTANCE_2Y0o_groupId=1&_56_INSTANCE_2Y0o_articleId=HR_4040_110(2)&_56_INSTANCE_2Y0o_version=1.0