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Legislation News & Report (TM) TheWeekInCongress.com (TM) Managing America: Health & Safety |
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TheWeekInCongress.com (TM) Week Ending March 7, 2008
S.2663 A bill to reform the Consumer Product Safety Commission to provide greater protection for children's products, to improve the screening of noncompliant consumer products, to improve the effectiveness of consumer product recall programs, and for other purposes.
The bill funds the Consumer Product Safety Commission at $88.5 million for FY 2009 rising to $155.9 million in 2015. The CPSC Inspector General’s Office is funded at $1.6 million in 2009 to $2.8 million in 2015.
$40 million for the Commission are for renovation, repair, construction, equipping and making other necessary capital improvements to the Commission’s research, development and testing facility. $1 million goes for cooperation with the National Institute of Science and Technology for investigate safety issues related to nanotechnology in consumer products. The Commission is directed to increase full time personnel by at least 500 by October 1, 2013 and hire at least 50 additional personnel at US ports of entry or assigned to inspect overseas production facilities by October 2010.
Children's products. Children’s products are the main focus of this bill. Those products include products intended for use by children 7 year or younger and tat are in the interstate commerce stream. The factors to be considered to determine the use of the product come from the manufacturer statement, whether the packaging is appropriate for those children and is commonly recognized by consumers to be for that age group. The allowed lead content in children’s toys is lowered from .03% to .01% unless the Commission determines that .01% is not technologically feasible to determine. A higher number, then, but still less than .03% will be established. The percentage standard would not apply to parts of a product that will not become physically exposed to children through normal and reasonably foreseeable use and abuse of the product. Paint, coatings and electroplating are not considered acceptable barriers to hazardous materials in a product. Cost-benefit comparisons may be used.
Commission The President is directed to nominate individuals to fill any open seats on the Commission and the Commission is expected to operate with the full five members. In the meant time, a quorum of two Commission members is required providing they are not of the same political party.
If the Commission determines that there is a public health and safety issue it may file for expedited consideration with the District Court.
Website required. Within a year of enactment the Commission shall establish and maintain a publicly available and searchable database to include any reports of injuries, illness, death or the risk thereof related to the use of consumer products. The database will contain information from consumers, local, State and Federal government agencies, Health care professionals, child service providers, public safety entities, non-governmental sources. The names and addresses of those providing the data shall be kept confidential. If the Commission later finds the information incorrect it must remove it from the database. Manufacturers, private labelers or retailers shall be given the opportunity to comment on the database information about their products.
The Commission is authorized, subject to regulation, to declare a substance hazardous if doing so promotes the intent of this bill, to improve and protect consumer health and safety.
Third party product testing Manufacturers of a children’s product shall have the product tested by a third party laboratory qualified to perform the tests or testing programs and issue a certification that the product meets standards pf health and safety. If the manufacturer or labeler has a testing lab that the Commission deems is better than available third party labs and is not under any undue influence of the manufacturer, that lab may prevail in testing the product.
The Commission has a year to establish protocols and standards for accepting or certifying compliance by manufacturers and for verifying that products tested by third parties are enforced. Accreditation standards and periodic audits of third party labs are to be established.
Labeling Manufacturers, retailers, labelers and distributors of any toy small enough for a child to swallow must, on their internet sites, catalogues of other distributed materials establish a clear notification of the danger directly next to the ad. Within a year, labels must make it clear to consumers to ascertain the manufacture, production time period and cohort of the product and whether or not the product meets applicable safety standards.
The Commission may approve a corrective action plan but if it later finds the plan not effective, it can revoke its approval and distribution of the product must cease.
Sale of recalled products is prohibited and further import of the product may be stopped. Products of risk may be exported if they meet the safety standards established by the recipient country.
Fines Fines for noncompliance can range from $250,000 to $20 million. Regarding flammable fabrics, a civil penalty of not less than $10 million can be imposed as can a five year prison term and possible asset forfeiture for a knowing and willful violation. A person who has committed multiple significant violations may be required to post an escrow, proof of insurance or security in advance of future dealings. The amount in escrow, etcetera must be sufficient to cover the costs of an effective recall or to cover the cost of holding or destroying the product. State may introduce legal action against a product believed to be a risk to State residents and may recover reasonable costs and attorney fees is the State prevails.
Whistleblowers The bill extends beyond current law protecting whistleblowers from adverse personnel action after the fact. Whistle blowers may not be discharged or discriminated against with respect to compensation, terms, conditions or privileges of employment if they provided or caused to be provided information or testimony on any violation of this Act or refused to participate in any activity the believe is a violation of this Act. The whistle blower must make a prima facie case. Employers are given the opportunity to prove they would have taken the personnel action regardless of the whistle blowing activity. If the complaint is deemed frivolous, the employer may receive $1000 in reasonable attorney fees. A successful plaintiff can be awarded up to $250,000.
Effort to amend the bill an exclude whistleblower protection were based on the conclusion that the current federal law protects whistleblowers well enough. Should the bill's provisions prevail, opponents held, the door would be open to expensive lawsuits against employers if the whistleblower was fired or otherwise impacted by a negative personnel action.
Miscellaneous A study is ordered to determine disparities in the risks and incidence of preventable injuries and deaths among children of minority populations related to suffocation, poisonings and drowning associated with cribs, mattresses, bedding materials, swimming pools and spas and toys or other products used by children.
The bill also requires attention to child-resistant portable gasoline containers, all-terrain vehicles, garage door openers, carbon monoxide poisoning, and cigarette lighters
Sponsor: Senator Mark Pryor (AR) Vote: The Senate agreed to cloture on the motion to proceed with the bill 86 to 1 March 3, 2008 RV 36.. The bill went to a House/Senate Conference. The House agreed to the Conference Report July 31, 2008 424 to 1 RC 543. the Senate agreed o the conference report 89 to 3 RV 193. The bill is cleared for the President's signature. Cost to the taxpayers: Earmark Certification: ## All Rights Reserved. © 2008 TheWeekInCongress.com(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
MORE INFORMATION 3.
S.AMDT.4088 to
S.2663 (authorize the Commission by rule to exempt lead crystal from
the ban on lead in children's products if the Commission determines that
the lead content is not absorbable and does not have an adverse impact on
public safety). 5.
S.AMDT.4090 to
S.2663 Of a technical nature. 7.
S.AMDT.4092 to
S.2663 Dodd amend #4092 (Ensure the use of safe equestrian helmets),
as modified. 9.
S.AMDT.4094 to
S.2663 To prohibit State attorneys general from entering into
contingency fee agreements for legal or expert witness services in certain
civil actions relating to Federal consumer product safety rules,
regulations, standards, certification or labeling requirements, or orders.
10.
S.AMDT.4095 to
S.2663 In the nature of a substitute. The amendment would replace the
bill text with a House-passed bill that is similar but does not provide
qhistle blower protection. 11.
S.AMDT.4096 to
S.2663 To strike section 21, relating to whistleblower protections.
Strikes whistleblower provisions in the bill. 12.
S.AMDT.4097 to
S.2663 To allow the prevailing party in certain civil actions related
to consumer product safety rules to recover attorney fees. 13.
S.AMDT.4098 to
S.2663 (ban the importation of toys made by companies that have a
persistent pattern of violating consumer product safety standards). 16.
S.AMDT.4101 to
S.2663 (Revise the section on Inspector General reports). 18.
S.AMDT.4103 to
S.2663 (require the Consumer Product Safety Commission to develop
training standards for product safety inspectors). 19.
S.AMDT.4104 to
S.2663 To prohibit the manufacture, sale, or distribution in commerce
of certain children's products and child care articles that contain
specified phthalates. 20.
S.AMDT.4105 to
S.2663 To authorize appropriations for necessary or
appropriate travel, subsistence, and related expenses, and for other
purposes. 24.
S.AMDT.4109 to
S.2663
To require the Consumer Product Safety Commission to study the use of
formaldehyde in the manufacturing of textiles and apparel articles and to
prescribe consumer product safety standards with respect to such articles.
27.
S.AMDT.4112 to
S.2663
(Clarify the requirement to include cautionary statements on
advertisements). 28.
S.AMDT.4113 to
S.2663
Expand requirements with respect to information in recall notices). 29.
S.AMDT.4114 to
S.2663
(Study on the effectiveness of authorities relating to the safety of
imported consumer products). 31.
S.AMDT.4116 to
S.2663
(Provide that attorney-client privileged information shall retain the same
protections), as modified. 33.
S.AMDT.4118 to
S.2663
Require the court to review the reasonableness of fees), as modified. 35.
S.AMDT.4120 to
S.2663
(Identify and validate alternative technologies for the facilitation of
recalls of durable infant or toddler products). 37.
S.AMDT.4122 to
S.2663
To strike the provision allowing the Commission to certify a proprietary
laboratory for third party testing. 38.
S.AMDT.4123 to
S.2663
(Regarding any violation of the whistleblower provisions). 39.
S.AMDT.4124 to
S.2663
To strike section 31, relating to garage door opener standards. 43.
S.AMDT.4128 to
S.2663
(Revise the inaccessible component rule for children's products). 45.
S.AMDT.4130 to
S.2663
(Promulgate consumer product safety rules), as modified. The following amendments were
considered en bloc:
## All Rights Reserved. © 2008 TheWeekInCongress.com.(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
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