CONSUMER PRODUCT SAFETY COMMISSION
AND THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT
ANNETTE MCCLENDON

Table of Contents

History about CPSC
Congressional Actions on the Improvement Act * CRS Summary * Major Congressional Actions * Public Law 112-28 * Chronology CPSC Commissioners

The Consumer Product Safety Commission (CPSC) is an independent federal regulatory agency, which was established with the passage of the Consumer Product Safety Act in 1972, and began operating in 1973. The primary responsibilities of the CPSC were to protect the public from unreasonable risks of injury associated with consumer products. The CPSC also promotes the evaluation of consumer products for potential hazards, establishes uniform safety standards for consumer products, eases conflicting state and local regulations concerned with consumer safety, and selectively conducts research on potentially hazardous products. In a 1970 precursor study to the establishment of the CPSC, the National Commission on Product Safety’s Final Report (Final Report) was issued to the President and Congress. This report included extensive surveys – on product hazards, accident information systems, voluntary product standards, consumer education, the state of product safety law, the relationship between Federal law and State law, product safety policy in other countries – and also contained proposals for general product safety legislation, the core of which was to be the creation of a Federal Consumer Product Safety Commission (CPSC). The report concluded that not only was the American public being exposed to many unreasonably dangerous products, but that the existing measures, such as product liability litigation, state and local regulation, industry self-regulation, and previous federal safety laws, were not protecting consumers. The CPSC promotes the development of voluntary safety standards. Under certain circumstances, it has the authority to issue and enforce standards and to ban unsafe products. The commission also has the authority to recall consumer products that are not specifically regulated by other government agencies. In all its activities, the CPSC strives to work closely with private consumer groups, industries, the media, and agencies of various state and local governments. Back in the early“60’s”, Ralph Nader saw that there was a concern about auto safety which sparked a general interest in product safety. It was not until the early 1970’s that the National Association of Manufactures saw the need for Congress to pass a product safety law. Within two years, the Consumer Product Safety Act of 1972 passed both the House and Senate and was signed into law by President Richard Nixon. The law established the Consumer Product Safety Commission as a bipartisan, independent regulatory commission following proposals in the Final Report. Conference Committee members who negotiated and signed the bill included (9) Democrats and (7) Republicans. Its passage was considered a breakthrough in consumer protection. Congress members of both parties made it a point to officially endorse the creation of the agency. Senator Warren Magnuson (D-WA) remarked, “The new Consumer Product Safety Commission has been given a strong mandate from Congress to drastically reduce losses from product-related injuries.”(1) Congress felt that an unacceptable number of consumer products which present unreasonable risks of injury are distributed in commerce (buying and selling goods and services). The complexities of consumer products, the diverse nature and abilities of which consumers using them frequently, resulted in an inability of users to anticipate risks and to safeguard themselves adequately. They also thought that the public should be protected against unreasonable risks of injury associated with consumer products. That is the purpose of Consumer Product Safety, to protect the public against unreasonable risks of injury associated with consumer products and to help assist consumers in evaluating the comparative safety of consumer products. Protecting consumers -- even careless ones -- from dangerous consumer products is an integral part of CPSC’s mandate. To be sure, the mandate is limited by
Congress' desire that the agency not imposes unreasonably high costs on, impede the usefulness of, nor limit the availability of regulated consumer products, the Balancing Test Provision. There are several acts enforced by the CPSC which authorize and direct the agency to address hazards attributable to consumer abuse. The Federal Hazardous Substances Act of 1960 (FHSA) directs the CPSC to regulate "hazardous substances" either by requiring warning labels or by banning such products when cautionary labeling proves inadequate to protect the public health and safety. The FHSA defines a “hazardous substance” in part as one that “may cause substantial personal injury or illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.” The Flammable Fabrics Act of 1953 (FFA) authorizes CPSC to establish flammability standards to protect the public against the unreasonable risk of injury from fire. The FFA does not address the concepts of consumer use and misuse; it simply addresses product flammability regardless of how products are used -- or misused. Had consumers not sometimes be irresponsible, these standards would therefore be unnecessary. For example, if consumers did not smoke in bed, there would be a substantially reduced need for a flammability standard for mattresses. Similarly, if children did not play with matches or climb on stoves, there would be little need for a flammability standard for children's sleepwear. The focus of the standards is on the level of flammability of the consumer products, not on the degree of culpability of the consumers who ignited them. The Poison Prevention Packaging Act of 1970 (PPPA) directs the CPSC to provide "special packaging" to protect children from injury or illness resulting from handling or ingesting dangerous household substances. As with the Flammable Fabrics Act, the basic premise of the PPPA is to protect consumers from product misuse. If parents always safeguarded hazardous substances in their households or if children never mishandled such materials or improperly ingested them, there would be little need for regulations under the PPPA. As with the FFA, the PPPA does not distinguish between consumer use and misuse. The only test is whether children are being harmed by household hazardous substances, not whether such harm is caused by improper consumer behavior. And the last act is The Refrigerator Safety Act of 1956 (RSA). This is the oldest and perhaps the most successful act enforced by the CPSC. Enacted to deal with dozens of deaths annually resulting from children climbing into abandoned refrigerators and suffocating when the doors closed, the Act requires that refrigerator doors be easily opened from within. Since the Act's requirements went into effect, most manufacturers have produced complying refrigerators and childhood fatalities from this hazard have virtually disappeared. In a fashion similar to that under the FFA and the PPPA, consumer misuse constitutes the operating premise of the Refrigerator Safety Act. If consumers did not carelessly dispose of refrigerators or if children did not improperly climb into them and close the doors, there would be no need for this legislation. CPSC is an independent agency. It doesn't report to nor is it part of any other department or agency in the federal government, CPSC is an Independent Federal “Regulatory” Agency. The agency is headed by five commissioners nominated by the President and confirmed by the Senate for staggered seven-year terms. The President designates one of the commissioners as Chairman. The current Chairman is Inez Tenenbaum. The agency is organized by five commissioners who set policies for CPSC. The Chairman is the chief administrator. Five offices report directly to the Chairman: Legislative Affairs, Equal Employment and Minority Enterprise, General Counsel, Inspector General, and Executive Director. The executive director directs and oversees commission policy and administration, which are implemented by the offices that report to that office: Compliance and Field Operations, Hazard Identification and Reduction, Financial Management, Planning, and Evaluation, Human Resources, Information and Public Affairs, Information and Technology Services, International Programs and Intergovernmental Affairs. CPSC currently has about 500 employees, who are responsible for monitoring the safety of over 15,000 kinds of consumer products used in and around the home, in sports, recreation and schools. They don't have jurisdiction over some categories of products. These include automobiles and other on-road vehicles, tires, boats, alcohol, tobacco, firearms, food, drugs, cosmetics, pesticides, and medical devices but they can get you in contact with the Federal agencies that do handle these products. CPSC provide information to consumers on what safety features to look for in products. In co-operation with manufacturers, they also announce recalls of products that they believe pose potential risk for serious injury or death. CPSC's jurisdiction does not include false advertising, fraud, or poor product quality not related to safety, their jurisdiction applies only to consumer product safety. The Federal Trade Commission (FTC) is responsible for handling complaints of false advertising, fraud, and product quality. CPSC does cover all manufacturers, retailers, importers and distributors of consumer products regardless of their size, number of employees, or income. CPSC does not test or certify products for safety before they can be sold to consumers, they don't have the legal authority to do that. However, responsible companies test their products before putting them on the market, or at least the majorities of them do and will take this process very, very seriously. CPSC works to save lives and keep families safe by reducing the risk of injuries and deaths associated with consumer products. They do this by developing voluntary standards with industries, issuing and enforcing mandatory standards or banning consumer products if no feasible standard would adequately protect the public, obtain the recall of products or arranging for their repair, conduct research on potential product hazards, informing and educating consumers through the media, state and local governments, private organizations, and by responding to consumer inquiries—which they have a website that handles a lot of these requests. In 1972 when the agency was created, it had a budget of $34.7 million dollars and 786 staff members. By 2008 it had 401 employees on a budget of $43 million, but the Consumer Product Safety Improvement Act (CPSIA) passed in 2008 increases funding to $136.4 million in 2014 with full-time employees to at least 500 by 2013.

HISTORY OF THE CPSIA

The Consumer Product Safety Improvement Act of 2008, (CPSIA), is a United States law signed on August 14, 2008 by President George W. Bush. This legislative bill was known as HR 4040, and sponsored by Congressman Bobby Rush. On December 19, 2007, the U.S. House approved the bill 407&0. On March 6, 2008, the U.S. Senate approved the bill by 79&13. The law—public law 110-314—increases the budget of the Consumer Product Safety Commission (CPSC), it imposes new testing and documentation requirements, and sets new acceptable levels of several substances. It imposes new requirements on manufacturers of apparel, shoes, personal care products, accessories and jewelry, home furnishings, bedding, toys, electronics and video games, books, school supplies, educational materials and science kits. The Act also increases fines and specifies jail time for some violations. This act is seen in part controversial because of its impact to many types of businesses that did not cause the problem. Because of the wide-sweeping nature of the law, many small re-sellers have been forced to discontinue the sale of children’s products and are in risk of losing (and in some cases have already lost) their business. In 2007, which has been called the "Year of the Recall" in the United States, the CPSC alone imposed 473 recalls in 2007, a record. This notably included many incidents with lead in toys and other children's products. These issues led to the legislative interest in the reform of the agency, and the final result of these efforts was the passage of the Consumer Product Safety Improvement Act in 2008. The bill increased funding and staffing for the CSPC, placed stricter limits on lead levels in children's products (redefined from products intended for children age seven and under to children age twelve and under), restricted certain phthalates in children's toys and child care articles, required mandatory testing and certification of applicable products, and required the CPSC to create a public database of their products. The public database,”saferproducts.gov”(2), constructed at a cost of around $3 million USD and launched in March 2011, publicizes complaints from virtually anyone who can provide details about a safety problem connected with any of the 15,000 kinds of consumer goods regulated by the CPSC. While being lauded by consumer advocates for making previously hidden information available, manufacturers have expressed their concern that most of the complaints are not first vetted by the CPSC before they are made public,( meaning it could be abused and potentially used to ruin specific brands). As of mid-April 2011, the database was accruing about 30 safety complaints per day. Although this Implementation was imposed, there were some concerns and confusion. From its enactment in August 2008 through the fall of 2008, the CPSC’s implementation of the CPSIA appeared to unfold relatively smoothly, based on press coverage. Occasional newspaper and magazine stories revealed emerging problems and concerns about possible adverse impacts on certain smaller firms. Also, the CPSC’s General Counsel issued a number of Advisory
Opinions and the agency published a host of Federal Register Notices. However, as the February
10, 2009, (effective date for several CPSIA requirements) neared—new requirements to include lower lead limits of 600 ppm in children’s products, phthalates limits of 1,000 ppm for certain products, and mandatory toy standards. More and more stories appeared in print and broadcast media warning about difficulties and expenses associated with complying with the new law. During January 2009, there was particular focus on the concerns of consignment shops, Thrift
Stores and there were many charitable organizations. Numerous manufacturers and retailers, both large and small businesses, expressed confusion about a wide variety of subjects associated with implementation of the CPSIA, including safety certification of products, deadlines for lower lead limits, and whether some or all of the new regulations would be retroactive. Book publishers and manufacturers and dealers of All Terrain Vehicles (ATVs), motorcycles, and bicycles—among others, were also affected. The American Library Association (ALA) wrote to the CPSC on December 4, 2008, noting that the agency’s General Counsel had sent an opinion to the Association of American Publishers which interpreted the CPSIA to include children’s books and stating that “all books designed or intended for children under the age of 12, needs to be tested for lead”. Subsequently, the ALA has adopted the view that the CPSIA does not apply to libraries—a view which has been supported by a number of Members of Congress, and which has not been refuted by the CPSC. On December 18, 2008, a coalition of trade associations, including the National Association of
Manufacturers, petitioned the CPSC to delay the February 10, 2009 effective date and issue
Guidance to businesses about complying with CPSIA. More specifically, they urged the agency to issue a comprehensive direct final rule on the requirements under § 101(b) of the Consumer
Product Safety Improvement Act (CPSIA), including rules governing test methods, exemptions, and to have warnings with their statements. The Motorcycle Industry Council (MIC) asked the Commission in a letter dated January 28, 2009, to issue a temporary final rule to exclude a class of materials found in motorcycles so that those products would not be in violation of the CPSIA. The CPSC’s General Counsel responded on February 9, 2009, saying the CPSC lacks the authority to act on the MIC’s request because the CPSIA did not grant the agency such powers. As with several other industry requests, the CPSC maintains that relief can only be provided by Congress. Nevertheless, on January 30, 2009, the CPSC Commissioners did vote to provide temporary, “limited relief” from enforcement of testing and certifications for one year for manufacturers and importers of regulated products, including products intended for children 12 years old and younger. More specifically, the agency’s enforcement stay applies to crafters, children’s garment manufacturers, and toy makers that had been subject to CPSIA testing and certification requirements. The agency also issued on February 10, 2009, a revised guidance document which explains to small businesses, resellers, crafters, and charities their responsibilities under the CPSIA. The document is written in a question-and-answer format, and addresses testing and certification of children’s products, exemptions to the lead content limits, and phthalates. It includes a table of commonly resold children’s products and lists whether they are generally safe to sell.
Despite weeks of back and forth between Members of Congress and the CPSC, it is still far from clear whether the problem is with the CPSIA itself or with the manner in which the CPSC is administering it. And, by the same token, it is uncertain whether the agency could resolve many of the issues itself, or if it is strictly a matter for Congress to decide. In responding to the January 16, 2009 committee chair letter, Nord asserted that the CPSIA was “quite prescriptive and give us little administration flexibility.”(3) The CPSC lost some of its ability to use discretion in its enforcement of the CPSIA, by virtue of the acts has empowered state attorneys general to enforce the CPSIA. What that means with regard to the agency’s January 30, 2009 decision to stay certain testing and certification requirements is for now the chief example. The CPSC is powerless to command state attorney general to join in the stay. (4) If a state attorney general decided to ignore the stay and bring an action against a retailer for violating the CPSIA then the CPSC could not prevent such an outcome. In other words, even though the CPSC says it will delay for one year enforcement of certain testing and certification requirements for manufacturers and importers of regulated products, there is nothing to prevent a state attorney general from prosecuting the retailer for not testing thereby ignoring the Commission’s stay.

INFORMATION ON THE INSERTS

This is a summary of H.R.2715 and this talks about how it became Public law under the number 112-28. It was introduce on August 1, 2011, and it became law on the 12th of August 2011. On the summary it talks of how it provides the Consumer Product Safety Commission (CPSC) with greater authority and discretion to enforce consumer safety laws and the other purposes for which it serves. Sec. 1 talks about the amends to the Consumer Product Safety Improvement Act of 2008 that applies the limit on lead content in children’s products after the effective date of a manufactures limit date. It tells of how the CPSC is required to grant an exception to lead limits according to three determinations which are: “(1) it is not practicable or technologically feasible to manufacture the item in accordance with the lead limit by removing the excessive lead or by making the lead inaccessible; (2) the item is not likely to be placed in the mouth or ingested by a child; and (3) the exception will have no measurable adverse effect on public health or safety, (the exception will result in no measurable increase in blood lead levels of a child).” This summary also contains eight more of sections 2-9 and tells briefly of what the CPSIA is required to do and what it can authorize or require the CPSC to do. It tells of all the Actions that this bill went through from August 1, 2011 through August 12, 2011 until it became Public Law. All of the summaries tell basically the same thing. I have included the Public Law 112-28 in its entirety to show everything that this Act provides. It starts out with Sec. 1 Limitation on Lead in Children’s Products; Sec. 2 is Application of Third Party Testing Requirements, Sec. 3 Application of and Process for Updating Durable Nursery Products Standards, Sec. 4 Application of Section 106 to FDA-Regulated Products, Sec. 5 Application of Phthalates Limit, Sec. 6 Authority to Modify Tracking Labels Requirement, Sec. 7 Improved Product Identification for Public Database, Sec. 8 Subpoena Authority, Sec. 9 Deadline for Rule by Consumer Product Safety Commission on Standards for All Terrain Vehicles, Sec. 10 Technical Amendments and Sec. 11 Effective Date. I have also included a Chronology of the CPSC Commissioners from when it started with Richard Simpson who served from May 14, 1973-October 1975 to the present.

CONCLUSION Before doing this research paper, I had never thought about what it takes to make a law or all the different channels it would have to go through. I even learn how to be more aware of what’s on a label or what something is made of, and even what the content will hold. I really enjoyed finding out this information and I will try to pass it on to family members or even my grand kids so that they can be more aware of what to buy and what not to buy—you can’t replace a life, so to be aware of potential problems before they happen and the laws that are there to protect you is worth knowing. I found out how to use the Thomas Law Library, a little bit, there is so much information out there to absorb. I’ll be fifty something by the time I hand this paper in and the changes that has be made not only in Congress, but in the laws too , is over whelming. There’s a law that stands for a lot of good and then there are many good laws that is waiting to become a law. Sometimes I think it all boils down to who you know on the Hill!

REFERENCE PAGE 1. 118 Cong. Rec. S36199 (October 14, 1972). Senator’s Magnuson remarks. 2. Retrieved from http://saferproducts.gov. 3. Retrieved from http://learningresourcesinc.blogspot.com/ 2009. 4. Federal Register/Vol. 76, No 26.

Terms or Acronyms Used 1. Consumer Product Safety Commission (CPSC). 2. Federal Hazardous Substances Act of 1960 (FHSA). 3. Flammable Fabrics Act of 1953 (FFA). 4. Poison Prevention Packaging Act of 1970 (PPPA). 5. Refrigerator Safety Act of 1956 (RSA). 6. Consumer Product Safety Improvement Act (CPSIA). 7. Phthalates means esters of phtalic acid and are mainly used as plasticizers (substances added to plastics to increase their flexibility, transparency, durability, and longevity). 8. Federal Trade Commission (FTC). 9. Year of the Recall- a record number of recalls involving dangerous foods and unsafe products. 10. Parts per Million (ppm) means the concentration of a chemical or element in something like food or drink. 11. All Terrain Vehicles (ATVs). 12. American Library Association (ALA). 13. Section 101(b) of the Consumer Product Safety Improvement Act provides for a functional purpose exception from the lead content limits under certain circumstances. 14. Motorcycle Industry Council (MIC).