Comparison of Consumer Product Safety Legislation 

Issue

Senate bill - H.R. 4040 (S. 2663)

House bill - H.R. 4040

1.Resources

Authorizes $88.5 million for FY 2009 increasing to 155.9 by 2015. (Section 3.)*

Authorizes $80 million for 2009 increasing to $100 million for FY 2011.   (Section 201.)

2.Enforcement-Civil Penalties

Increases the maximum civil penalty to $250,000 per violation; maximum overall cap of $10 million unless violation is aggravated, in which case maximum is $20 million. (Section 16.)*

Civil penalty maximum remains approximately $8,000 per violation (no change in existing law); raises the overall cap to $5 million maximum for first year after enactment, $10 million thereafter.   (Section 215.)

3.Enforcement-State Attorneys General

AGs may bring actions for injunctions to enforce any standard, rule, regulation, certification, order, voluntary or mandatory recall under the CPSA or other Acts enforced by CPSC. (Section 20.)*

AGs may bring actions for injunctions to enforce any rule or order requiring a mandatory recall (all CPSC recalls are currently voluntary not mandatory).   (Section 217.)

4.Public Information

Creates new public database of all consumer, medical, police, media and other (non-manufacturer) information and complaints searchable by product and manufacturer. (Section 7.)*

Provides for study by CPSC with a report to Congress on a database plan 180 days after enactment. (Both bills authorize the CPSC to release product safety information to the public where it finds the public health and safety requires notification in less than the 15 day period allowed for manufacturer comment.)   (Section 206.)

5.Mandatory Testing of Children's Products

Requires testing for all products intended for children seven and under if subject to CPSC standards and incorporates existing ASTM voluntary toy standard as such a standard within 60 days of enactment (thus covers more products).   (Section 10.)

Mandates testing only for children's products subject to CPSC standards (without incorporating ASTM) but applies to products intended for children 12 years and under.   (Section 102.)

6.Ban of Children's Products Containing Lead

Establishes maximum lead content by weight at 300 ppm one year after enactment; 100 ppm 3 years thereafter, unless the CPSC finds 100 ppm is not technologically feasible. (Section 22.)*

Sets lead standard at 600 ppm 180 days after enactment; 300 ppm 2 years after enactment: 100 ppm 4 years after enactment, unless CPSC finds 100 ppm is not feasible (omits "technologically").   (Section 101.)

7.Whistleblower Protection

Prohibits discharge or discrimination against any employee of a manufacturer or retailer of consumer products who provides information to federal or state authorities regarding any violation of a provision of any act enforced by the CPSC. (Section 21.)*

No Comparable Provision

8.Criminal Penalties – Pre-notification Provision

Eliminates existing requirement that violators must be notified of noncompliance by the CPSC before they can be prosecuted.   Also raises the penalty for knowing and willful violations to 5 years imprisonment.  (Section 16.)*

No comparable provision.

9.Criminal Sanctions – Immunity for Complying with Reporting Requirements

No comparable provision.*

Report of a substantial product hazard provided by a manufacturer cannot be used as the basis of criminal penalties under the FHSA, unless the charged offense requires a showing of intent to defraud or mislead.   (Section 208.)

10.Financial Responsibility for Manufacturers / Importers of Consumer Products

Authorizes CPSC, by rule, to set escrow, insurance or security requirements for any repeat violator, manufacturer of a category or class of products, or manufacturer of any consumer product, product or substance regulated by a CPSC-enforced act in an amount sufficient to cover the costs of a recall if necessary. (Section 19.)*

Requires report to Congress (180 days) regarding feasibility of requiring bonds for serious hazards and repeat offenders.   (Section 224.)

11.Recall Authority

No comparable provision.

Authorizes CPSC to halt distribution of a product, or notify all parties transporting, selling or distributing a product to cease distribution, if CPSC has filed an imminent hazard action under Section 12 of the Act.   (Section 209.)*

12.Imports

Requires at least one CPSC employee to be stationed at US Customs’ National Targeting Center. (Section 36.)  Requires CPSC to develop risk assessment methodology to identify shipments of imports that should be refused admission (Section 37), to publish a list of product defects constituting substantial product hazards, and to ensure that DHS seizes and destroys any products that have been refused admission after 90 days (Section 38). Provides for creation of database to document manufacturer violations of product safety rules, to be used by U.S. CBP when determining whether a container being imported contains products that violate a consumer product safety standard and whether action should be taken to stop importation. (Section 39.)  Bans from importation any toy manufactured by a company that has “shown a persistent pattern” of manufacturing toys that are substantial product hazards, or regarding which CPSC determines that a permanent ban of the manufacturer’s toys is “equitably justified.” (Section 44.)*

Requires CPSC study on strategy to improve the Commission’s effectiveness in stopping unsafe imports.   (Section 224.)

13. Preemption

“The . . . [existing sections of CPSA-administered Acts] establishing the extent to which those Acts preempt, limit, or otherwise affect any other Federal, State, or local law, any rule, procedure, or regulation, or any cause of action under State or local law may not be expanded or contracted in scope, or limited, modified or extended in application, by any rule or regulation thereunder, or by reference in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of any such rule or regulation.” (Section 17.)*

“In issuing any rule or regulation in accordance with its statutory authority, the Commission shall not seek to expand or contract the scope, or limit, modify, interpret, or extend the application of . . . [the existing limiting sections of CPSA-administered Acts] with regard to the extent to which each such Act preempts, limits, or otherwise affects any other Federal, State, or local law, or limits or otherwise affects any cause of action under State or local law.” (Section 218.)

14. Toy Standards

Mandates that the ASTM-International standard F963-07 for toys become a product safety rule within 60 days of enactment.   (Section 29.) Does not authorize CPSC pre-publication upgrade of such standard.*

CPSC required to examine ASTM standards, and issue a report within 2 years as to whether issuing rules that are substantially similar to ASTM would be feasible and beneficial to public health and safety.   (Section 107.)

 
* Public Citizen believes these Senate provisions will better protect consumers than the comparable House provisions. The mandatory testing provisions of both bills have beneficial aspects.

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