Total Recall: The Need for CPCS Reform Now

2008-07-23

Executive Summary

Summary: The year 2007 was called the year of the recall. But in 2008, recalls are up, according to Consumer Product Safety Commission (CPSC) data. Already, as these data show, more toys and children’s products have been recalled in the first half of this year than in the first half of last year, a supposed “100-year-flood” period. Yet the remedial CPSC reform legislation passed overwhelmingly by both the House and Senate in response to that 2007 recall wave has yet to become law. It is stalled in conference committee, where both the toy and chemical industries seek to block, weaken or delay some of its most critical reforms. This report explains why Congress needs to enact a strong final law that includes all of these key uncompleted reforms -- a new toy standard that requires mandatory safety testing for toys, a ban on toxic phthalates and whistleblower protections -- while rejecting industry’s eleventh-hour demands to add new and unprecedented limits on state authority to enforce and enact product safety laws.

Introduction: Beginning in the spring of 2007, a wave of recalls of children’s products and toys sparked renewed interest in product safety reform and in reauthorizing the moribund CPSC for the first time since 1990. One year ago, the agency’s budget of less than $63 million was less than half what it would have been ($145 million) had it simply been updated for inflation since its 1973 establishment. Its staff in 2007, at about 400 FTEs, was again less than half its peak staffing level in 1980. For much of 2007 it operated without a legal quorum; it could conduct voluntary recalls, but do little other business. Yet the tiny agency was and is nevertheless responsible for the safety of over 15,000 separate consumer products, ranging from coffee makers and home appliances to chain saws, escalators and children’s products, including toys.

In response, Congress first raised the CPSC budget significantly for this and next year while it considered broader reform legislation. Both the House and Senate developed and passed comprehensive CPSC Reform Act proposals, which are now in conference committee. In June2008, the committee announced agreement on 21 consensus provisions, including greater authority over import safety and recall authority, and an increase in civil penalty authority. On July 17, the committee met and announced agreement on nine more items, including an important new provision establishing a public database of potential hazards, a new state Attorneys General enforcement provision and another establishing new lower limits for lead exposure. Significant additional funding increases are also expected to be approved for future years, if final action is completed this year.

At this point, however, several critical reforms remain unfinished, although the conference committee may meet again formally this week. Some of these critical reforms are the subject of massive efforts by the toy industry and the chemical industry, including Exxon-Mobil, to weaken them or delete them from the conference report and the final law. This report first explains why action must take place this year and then outlines those remaining unfinished provisions and why they are critical to reform efforts.

Section 1 of the report documents the continuing rise in product recalls and why action must be taken to finalize the legislation. The remaining sections outline the critical reforms still unresolved.

Section 2: Mandatory toy testing. Section 2 of the report explains the need for incorporating industry’s voluntary toy standard, known as ASTM F-963, as a mandatory pre-market toy testing standard. Without this provision, numerous significant toy hazards prominently highlighted in 2007 would not be subject to the new law’s anticipated centerpiece provision – its requirement that all hazards subject to mandatory CPSC rule be subject to independent third party testing and certification. It would be an ironic and unacceptable outcome if a new CPSC reform law, which was driven by waves of toy recalls, did not expand the CPSC’s authority to protect children from dangerous toy hazards. The Senate bill includes this provision; the House bill does not.

Section 3: Ban Toxic Chemicals. Section 3 of the report explains the need to ban the class of toxic chemicals known as phthalates from children’s products. California and other states have already acted. The Senate bill includes language that would ban six common phthalates, while the House bill is silent.

Section 4: No More Limits On State Authority. Section 4 of the report describes why industry’s effort to prevent states from enacting additional consumer protections is unacceptable. The underlying Consumer Product Safety Act – which the reform proposals will amend –already generally establishes federal uniformity and preempts most state action. Where they have had the freedom to act, the fifty states have performed important product safety work on phthalates and other chemicals, lead and other chemicals, recalls, and other areas. The states are an important cop on the consumer safety beat. Industry continues, however, to demand more limits, including on the new, unproven third party testing requirement expected to become law.

Section 5 describes how adding whistleblower protections for private and public-sector workers will also add product safety protections for American families. Last week, the conference committee met and approved one of our other remaining priority reforms. It established a public right-to-know database of potential hazards reported to the CPSC by consumers, first responders, doctors and others. Both the Food and Drug Administration (FDA) and the National Highway Traffic Safety Administration (NHTSA) have had similar databases online already. While the Consumer Product Safety Act still allows manufacturers too much control over public release of information they have provided about their products (generally, no information can be released to the public until and unless an actual recall or other remedial action is announced), the new database will aggregate information about potential hazards obtained from doctors, hospitals, firefighters and consumers themselves (but not from company reports). These incident reports will be available to the public in a searchable database. We are pleased to see the addition of this provision in the final legislation.