Consumer Product Safety Improvement Act
Signed into Law by President Bush

The Consumer Product Safety Improvement Act of 2008 (H.R. 4040), reauthorizing the U.S. Consumer Product Safety Commission (CPSC) for Fiscal Years 2010 through 2014, became law on Aug. 14 with the signature of President Bush.  The final Conference Report on H.R. 4040 passed by both Houses of Congress in late July, receiving a 424-1 vote in the House and 89-3 in the Senate.

For the past four years, CSPA has been actively engaged in the legislative process of CPSC reauthorization.  In supporting the agency’s mission and efforts to reauthorize it, CSPA helped to assure many benefits for its members.

• CPSC reauthorization ensures that the agency is fully staffed and financed and thus able to effectively do its job and carry out its mandate. 
• In lobbying H.R. 4040, CSPA was primarily concerned with the loose interpretation within the Third Party Testing provision that had a broad definition of “children’s product.”  CSPA held extensive talks with House and Senate committee staff and successfully worked to amend that definition, so that it now includes “primarily intended” as part of the definition.
  
• CSPA was an active stakeholder in the phthalates debate as Senator Dianne Feinstein’s (D-CA) amendment on phthalates was included in the Senate CPSC reauthorization bill. The amendment aimed at a complete preemption, a ban on DEHP, DBP and BBP in children’s products and an interim standard prohibiting the other three, DINP, DIDP and DnOP.  CSPA worked with House and Senate counsel to limit the focus on these phthalates and to assure that DEP would not be included in the amendment.
• Although CSPA maintains that the civil penalties are egregious, it was successful in reducing civil penalty fees from $100M to $15M.

CSPA will continue to be actively involved with the implementation process.

The following are some of the provisions of the Conference Report:

Authorization of Appropriations – Includes modified language that would authorize the Commission for five years beginning in fiscal year 2010, starting at $118 million and ending at $136 million.  A specific travel allowance for the Commission also is provided.

Phthalates Ban – Includes modified language that would permanently prohibit the sale of children's toys or child care articles that contain more than 0.1 percent di-(2 ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).
The sale of children's toys or child care articles containing concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP) would be prohibited on an interim basis until a review by a Chronic Hazard Advisory Panel (CHAP). After the Commission receives the report from CHAP, the Commission, by rule, would determine whether to continue the interim prohibition.

Whistleblower Protections – Whistleblower protections are provided for employees of manufacturers, private labelers, retailers, and distributors.

Notification of Noncompliance – The notification requirements under section 15(b) of the Consumer Product Safety Act (CPSA) are amended to promote the timely, accurate and complete disclosure to the Commission of information that is necessary to protect public health and safety.

Prohibited Acts – Includes modified language that is similar to the provisions in the House bill and the Senate amendment, incorporating into the CPSA violations created by this Report.

Criminal Penalties – Includes language that would authorize the Commission to seek asset forfeiture as a penalty for a criminal violation of acts enforced by the CPSC; increase maximum criminal penalties; and remove the knowledge of notice of noncompliance requirements for directors, officers, and agents under section 21(b) of the CPSA.

Formaldehyde Study – Directs the Government Accountability Office to conduct a study on the use of formaldehyde in manufacturing of textile and apparel articles.

Preemption – Includes preemption provisions where appropriate, ensuring a uniform national standard for toy safety.  Also includes language intended to clarify that the requirements under the Conference Report, the CPSA, and the FHSA shall not be construed to preempt or affect State warning requirements under State laws, such as California's Proposition 65, that were enacted prior to August 31, 2003.  Conferees also reached resolution as to whether to preempt State authority under the new federal third party testing regime created in the Conference Report, agreeing not to insert preemption for federal third party testing.

For further information, please contact Mario Mairena, 202/833-7316, mmairena@cspa.org.

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