WASHINGTON — The lawmaking process is normally where heated debate and lobbying over a wanna-be law take place. When that wanna-be becomes law by overwhelming vote margins and a presidential signature, the heat normally dissipates. But there is nothing normal, yet, about the Consumer Product Safety Improvement Act.
Products liability defense lawyers call it a mess. Consumer lawyers say it’s a success. And as they duke it out in press releases, blog posts, rallies and other avenues, businesses — from at-home handcrafters to large toy makers — are flooding the U.S. Consumer Product Safety Commission (CPSC) with requests for guidance on, or exemptions from, the new law’s demands.
“We’re hearing a lot of conversations now where the CPSC is saying one thing about what the law does, and some in Congress are saying, ‘That’s not what we intended,’ ” said products liability lawyer Kenneth Ross, of counsel to Minneapolis’ Bowman and Brooke. “ Others in Congress say, ‘We warned this would happen and now it’s happening.’ And certain others in Congress are saying, ‘No, this is exactly what we intended.’
“As lawyers, it’s hard to advise businesses,” said Ross. “We’re talking about billions of dollars of products and huge problems. It goes beyond giving them a legal interpretation of the statute. They’re asking, ‘How do I organize my business because of this law?’ “
Consumer groups and business groups hold dramatically different views of what now is needed to implement the law in a fair and rational manner.
“At this point, what [the CPSC] needs is a new leader,” said Christine Hines, consumer and civil justice counsel at Public Citizen’s Congress Watch. “Under the acting chair, the implementation of the new law has been lacking and has caused confusion.”
However, “The goals [of the act] are laudable but the execution is flawed, and it’s flawed because of language in the statute that needs to be fixed,” countered veteran consumer product attorney Sheila Millar, partner in Washington’s Keller and Heckman who is counsel to the Fashion Jewelry Trade Association and other trade groups.
The Consumer Product Safety Improvement Act of 2008 (CPSIA) is the most comprehensive overhaul of consumer product safety laws since the CPSC was created via the Consumer Product Safety Act in 1972. The House passed it last summer by a vote of 424-1, and the Senate followed the next day by a vote of 89-3. Former President Bush signed it into law in August.
The law essentially was a response by Congress to highly publicized recalls of toys — many from China — containing lead paint and other hazards, as well as to the belief that the CPSC either was unable or unwilling to be a tough regulator.
Although the act will have it most significant effect on products intended “primarily” for children aged 12 and under, lawyers for all parties involved agree that its provisions will affect nearly all manufacturers, importers, distributors and retailers of consumer products.
In addition to bans on lead and phthalates in children’s products, the law mandates third-party testing and certification of those products with detailed requirements for laboratory accreditation, new safety standards and test procedures, product tracking labels and registration, and new warnings in advertising and on Web sites for toys and games.
The law significantly beefs up civil penalties for violations and gives state attorneys general, for the first time, the authority to enforce federal products safety laws in addition to their states’ own products safety laws.
The CPSC itself is not neglected, but, when fully funded, will have a major increase in staff and resources as well as greater authority in such areas as product recalls and interagency enforcement. The CPSC has been operating with only two of its statutory five members — Nancy Nord, the acting chairwoman, is a Republican appointee, and Thomas Moore is a Democratic appointee.
Because of what industry considers the law’s inflexibility and unrealistic deadlines, and what consumer groups consider Nord’s lack of leadership, the commission got off to a slow start in issuing guidance on what products were covered by the lead and phthalate limits and other provisions of the act. As a result, it has been inundated, according to the staff, with petitions for exclusions from manufacturers, retailers and even charities making or supplying products as diverse as all-terrain vehicles and handmade clothes.
Erika Z. Jones, partner in the Washington office of Chicago-based Mayer Brown, has a petition pending on behalf of her client, the Bicycle Product Suppliers Association. Her client’s problem, she said, falls into one of three problem categories under the law: the sale of new products containing lead that can’t be eliminated, but which is in very small quantity and of no risk to children.
Every pneumatic tire, she said, has a valve stem with an inside component that has to be made of brass to perform its function. Although the industry has been able to eliminate brass on the outside, the “best minds in the world” have been unable to come up with a substitute for the material for the inside plunger.
“This is something you’ve probably never seen in the mouth of a child,” said Jones. “But the compliance of the bicycle industry depends on the commission’s ultimate accessibility rules.”
The second problem category, she said, involves the sale of used products. Using bicycles again as an example, Jones noted the DreamBike initiative through which inner city youths work to recondition used bikes.
“It’s a wonderful initiative, but there is lead in the valve stems. The bikes were legal when made, but are illegal now. Everybody from Goodwill to Dream Bikes has a problem.”
The third category involves repair parts, according to Jones. “What do you do for a product no longer being made but which still needs repair from time to time?” she asked. “Imagine an old product that needs work from time to time. If those replacement parts can’t be sold because they have lead, the product won’t be fixed.”
The CPSC has moved to address some of the concerns raised by businesses, either through published guidance or action on petitions. Perhaps its most significant move was to issue a one-year stay of enforcement for certain lead and phthalate testing and certification requirements for manufacturers and importers of regulated products, including products intended for children 12 years old and younger.
But the commission made clear that manufacturers and importers — large and small — of children’s products still had to meet the lead and phthalates limits, mandatory toy standards and other requirements.
The commission also has agreed to exempt products made of natural materials — wood, cotton and wool — from the lead requirements.
“Any legislative fixes at this point would be very premature,” said Public Citizen’s Hines. “The most important issue right now is for Nancy Nord to be replaced. She was never a huge supporter of the law from the time of the year-long negotiations.”
Hines said the other commissioner, Moore, agrees that congressional intervention now would be premature.
“At this point, because there is so much difficulty at the agency in terms of agreement, the agency has taken a strict constructionist view of some of the language in the law,” said Hines. “I believe the new law gives the agency the authority to issue reasonable regulations. We still feel it has enough authority to address business concerns and to ensure that products are safe. The 2007 recalls and the uproar about unsafe products on the market tend to get lost in this debate.”
Elizabeth Hitchcock, public health advocate for U.S. PIRG, the federation of state public interest research groups, agreed, saying, “The law put a tremendous group of new tools and resources at CPSC’s disposal to accomplish its mission of safer products. The unfortunate thing is the president has not named a new chair as of yet so the law went into effect with the old guard, which testified and lobbied against a lot of the very strong provisions in the CPSIA.
“They’ve gone far too slowly to implement the law and to issue the guidance to smaller businesses, the libraries, the secondhand shops, the handcrafters who, in the absence of the guidance, are, of course, confused. That climate of confusion has built on itself.”
The commission, Hitchcock said, needs to recognize that there will be circumstances when an exception is warranted, “but it provides the flexibility to be guided by the science and to not have a one-size-fits-all solution. We don’t need to legislate any greater flexibility for them.”
The consumer groups contend that major businesses, which were not happy with the legislation, now are taking advantage of that confusion to move to gut the law. One of those businesses, they say, is the Fashion Jewelry Trade Association, a client of Keller and Heckman attorney Millar.
Millar has filed a petition for the association asking the commission to exempt crystal and glass rhinestones and beads in children’s jewelry, clothing, footwear and accessories from the lead limits. Without an exemption, she contends, these products will be banned, and that could harm an industry worth an estimated $62 billion in 2008.
“Everybody shares great support for a strong and effective commission,” said Millar. “Where we have a parting of ways is about those elements of the CPSIA that take us away from good risk assessment as a founding policy principle for sound governmental decision-making where it comes to health and safety.”
Millar said that the level of lead in her industry’s products is not harmful to children if ingested, but will not meet the absolute limits set by the law.
“It’s at some level easy to say let’s set a level at X,” she said. “There is value to that, but an absolute limit without a sense of exposure and risk doesn’t make sense. We’re not trying to undo the entire law. We’re trying to bring common sense to it.”
Because the commission staff does not believe it has the discretion to approve anything less than zero lead extraction, Millar said, the only alternative is for Congress to act.
There are least eight bills pending in the House and Senate to make changes in the new law. But congressional leaders have indicated that they will await the naming of a new commission chair before re-examining the act.
Congress took away the CPSC’s ability to engage in risk assessment because it didn’t trust the commission, said Bowman and Brooke’s Ross. “Now the commission is boxed in a corner and is reluctant to make too many interpretations of the act. I’m not sure who exactly is right. It is a bit of a conundrum.”