Consumer Product Safety Improvement Act of 2008: P.L. 110-314
Consumer Product Safety Improvement Act
of 2008: P.L. 110-314
September 22, 2008
Margaret Mikyung Lee
American Law Division
Consumer Product Safety Improvement Act of 2008:
Public alarm about the spate of recent product recalls throughout 2007,
particularly of toys and other products used by children, has focused attention on the
Consumer Product Safety Commission (the CPSC or the Commission). This scrutiny
led to consideration of major amendments to the Consumer Product Safety Act
(CPSA), which established and authorized the CPSC in 1972 in response to growing
concerns about protecting the public from unsafe, defective consumer products.
Jurisdiction over the administration and enforcement of several existing consumer
safety statutes was transferred from other agencies to and consolidated under the
CPSC. However, in the years since its establishment, the staff and resources of the
CPSC have been considerably reduced, leading many observers to doubt its ability
to fulfill its mission effectively.
Consequently, Congress considered major reform legislation to address
organizational and systemic deficiencies. Legislative proposals in the 110th Congress
included provisions targeting specific consumer product defects and hazards. On
July 29, 2008, H.Rept. 110-787, the Conference Report for H.R. 4040, the Consumer
Product Safety Improvement Act of 2008 (CPSIA), was released after several months
of negotiations in the conference committee to reconcile differences between the
House and Senate versions of the bill. The bill passed the House of Representatives
and the Senate on July 30, 2008 (424-1) and July 31, 2008 (89-3), respectively. On
August 14, 2008, President Bush signed the bill into law as P.L. 110-314. CPSC
Chairman Nord and Commissioner Moore each expressed approval of the final
legislation, with Chairman Nord expressing a desire for Congress to appropriate
further funding to carry out the new mandates of the legislation.
This report provides an overview of the prior authority of the CPSC to establish
consumer product safety standards and to inspect and recall unsafe consumer
products, and discusses P.L. 110-314, the Consumer Product Safety Improvement
Act of 2008, reforming the CPSC and strengthening enforcement of consumer
product safety standards. It supersedes CRS Report RL34399, Consumer Product
Safety Improvement Act of 2008: H.R. 4040, by Margaret Mikyung Lee (out of print
but available from author). For an overview and context of the current issues facing
the Commission, see CRS Report RS22821, Consumer Product Safety Commission:
Current Issues, by Bruce K. Mulock. For an overview of issues regarding safety of
consumer products imported from China, see CRS Report RS22713, Health and
Safety Concerns Over U.S. Imports of Chinese Products: An Overview, by Wayne M.
Morrison. For an overview of the issue of phthalates in children’s products, see CRS
Report RL34572, Phthalates in Plastics and Possible Human Health Effects, by
Linda-Jo Schierow and Margaret Mikyung Lee.
Current Legislation: P.L. 110-314.....................................8
Children’s Product Safety.......................................9
Lead Content and Measurement (§101).........................9
Third-Party Testing and Certification of Children’s Products
Tracking Labels for Children’s Products (§103).................11
Standards and Registration Forms for Durable Nursery Products
Labeling for Certain Toy and Game Advertising (§105)...........11
Adoption of a Mandatory Toy Safety Standard (§106)............12
Study of Disparities in Injury/Death Rates of Minority
Ban on Specified Phthalates and Certain Alternatives in Certain
Children’s Products and Child Care Articles (§108)..........13
Strengthening Commission Administration and Resources............13
Reauthorization Years and Funding (§201).....................13
Full Commission Funding and Interim Quorum (§202)...........14
Reports to Congress (§203).................................15
Expedited Rulemaking Procedures (§204).....................16
Inspector General Audits and Reports (§205)...................16
Ban on Industry-Sponsored Travel (§206)......................17
Information Sharing with Other Government Agencies (§207).....17
Employee Training Exchanges (§208).........................18
Repeal of CPSA §30(d) (§237)..............................18
Cost-Benefit Analysis under the PPPA (§233)..................18
Enhanced Enforcement and Cooperation...........................19
Prohibition on Stockpiling (§213)............................19
Prohibited Acts (§216).....................................19
Enforcement by State Attorneys General (§218).................21
Whistleblower Protections (§219)............................22
Federal Law Preemption (§231).............................24
Enhanced Inspection, Public Notice, and Recall.....................26
Public Disclosure of Information (§211).......................26
Establishment of a Public Consumer Product Safety Database
Substantial Product Hazard Reporting Requirement (§214(a)(2))...29
Enhanced Public Notice of Substantial Product Hazards..........30
Enhanced Authority for Corrective Action Plans and Recalls
Requirements for Recall Notice Content (§214(c))...............31
Identification of Supply Chain (§215(b)).......................32
Financial Responsibility (§224)..............................32
Annual Reporting Requirement (§209)........................32
Safety of Imported and Exported Products.........................33
Export of Recalled and Nonconforming Products (§221)..........33
Development of Methodology to Identify Unsafe Imports (§222)...33
Cooperation with U.S. Customs and Border Protection (§222(c))...34
Substantial Product Hazard List and Destruction of Unsafe Imports
Study of CPSC Authority Related to Imported Products (§225).....35
Adoption of a Mandatory All-Terrain Vehicles (ATVs)
Safety Standard (§232).................................35
Formaldehyde Study (§234).................................35
Expedited Judicial Review..................................35
Pool and Spa Safety Act Technical Corrections.................36
Provisions Deleted in the Conference Agreement................36
List of Tables
Table 1. Authorized Total Appropriations and Travel Component
for CPSC, FY2010-FY2014.....................................14
Consumer Product Safety
Improvement Act of 2008:
Public alarm about the spate of product recalls during 2007, particularly of toys
and other products used by children, has focused attention on the Consumer Product
Safety Commission (CPSC). P.L. 110-314, 122 Stat. 3016 (2008), the Consumer
Product Safety Improvement Act of 2008 (CPSIA), was enacted as a result of
Congress’s consideration of major reform legislation to address organizational and
systemic deficiencies, as well as specific consumer product defects and hazards. This
report provides an overview of the prior authority of the CPSC to establish consumer
product safety standards and to inspect, recall, and restrict importation of unsafe
consumer products, and summarizes changes made by the CPSIA to reform the
CPSC and strengthen enforcement of consumer product safety standards.
The Consumer Product Safety Act (CPSA, 15 U.S.C. §§2051 et seq.)
established and authorized the CPSC in 1972 in response to growing concerns about
protecting the public from unsafe, defective consumer products. However, in the
years since its establishment, the staff and resources of the CPSC have been
considerably reduced to the detriment of its ability to fulfill its mission effectively.
Aside from the issue of adequacy of resources, the highly publicized recalls of
children’s toys in 2007 focused attention on alleged weaknesses in the CPSA and the
authority of the CPSC to establish consumer product safety standards and to inspect,
recall domestically, and block imports of unsafe consumer products.
The CPSC is the central, federal authority for the promotion and enforcement
of consumer product safety. The system is designed to be a collaborative effort
among the CPSC, the industries producing the broad range of consumer products,
and the consuming public. The CPSC researches and promotes best practices for the
industries, producing guidelines for manufacturers, importers, distributors and
retailers. Although the CPSA authorizes the CPSC to promulgate mandatory
consumer product safety standards, it mandates reliance upon voluntary standards
whenever compliance with voluntary standards would eliminate or adequately reduce
the risk of injury and substantial compliance with voluntary standards is likely.
Besides the CPSA, the CPSC also administers several other statutes whose
authorities and functions were transferred to the CPSC upon its creation. The Federal
Hazardous Substances Act (FHSA, 15 U.S.C. §§1261 et seq.) provides for
warning/informational labeling of hazardous substances and for the banning of
certain hazardous substances for which labeling would not provide adequate
protection for the public against the potential hazards posed by the substances. The
Flammable Fabrics Act (FFA, 15 U.S.C. §§1191 et seq.) provides for the
establishment of safety standards regarding fabric flammability. It also prohibits the
manufacture, sale, importation, transportation, or delivery in commerce of a product,
fabric, or related material or of a product made of a fabric or related material that
does not comply with the standards and deems that such practices constitute unfair
methods of competition and unfair and deceptive acts or practices under the Federal
Trade Commission Act. The Poison Prevention Packaging Act (PPPA, 15 U.S.C.
§§1471 et seq.) authorizes the CPSC to establish special packaging standards for a
household substance if such standards are required to protect children from serious
injury or illness from using, handling or ingesting such substance, with exceptions
for noncomplying packages for elderly/handicapped persons and packaging at the
direction of a licensed medical practitioner. The Refrigerator Safety Act (RSA,15
U.S.C. §§1211) prohibits the introduction into interstate commerce of any household
refrigerator that does not conform with certain safety standards.
Prior to amendment by the CPSIA, some of these statutes provided for powers
that were similar but not identical to those established under the CPSA. Therefore,
the regulatory procedures and other actions which the CPSC is authorized to carry
out with regard to the products regulated under these other statutes differed (and may
still differ in some respects) from those authorized under the CPSA. Before the
CPSIA, the CPSC could choose to regulate under the CPSA a consumer product that
could be regulated sufficiently under these other statutes only if the CPSC determined
that it was in the public interest to do so. The differences among the different
statutory standards and procedures and enforcement authority arguably led to
inconsistency in the enforcement of different product standards. For example,
injunctive enforcement authority for states attorneys general is expressly provided by
the FHSA and the FFA, but was not expressly provided by the CPSA before
amendment by the CPSIA. The apparent ambiguity of the CPSA on this point led to
amendments in the CPSIA to provide express authority.
The CPSC has the authority to establish consumer product safety standards for
consumer products generally, defined as “any article or component part thereof,
produced or distributed (i) for sale to a consumer for use in or around a permanent
or temporary household or residence, a school, in recreation, or otherwise, or (ii) for
the personal use, consumption or enjoyment of a consumer in or around a permanent
or temporary household or residence, a school, in recreation, or otherwise.”1 There
are express exemptions for products covered under other statutes, including tobacco
and tobacco products, motor vehicles and motor vehicle equipment, pesticides,
firearms/antique firearms and ammunition/supplies (except for fireworks), aircraft
and components, boats and other marine vessels, drugs, medical devices, cosmetics,
food, or any article which is not customarily produced or distributed for sale to, or
use or consumption by, or enjoyment of, a consumer. The CPSC also has jurisdiction
over amusement rides that are not permanently fixed to a site but rather are part of
a travelling carnival or show, but does not have jurisdiction over rides that are
permanently fixed to a particular site.2 Furthermore, the CPSC has no jurisdiction
1 CPSA §3 (codified at 15 U.S.C. §2052).
2 State agencies have jurisdiction over fixed rides that are located in a park in their
to regulate a particular consumer product if the risk of injury associated with that
product could be eliminated or sufficiently reduced by actions taken under the
Occupational Safety and Health Act of 1970 (Occupational Safety and Health
Administration), under the Atomic Energy Act of 1954 (the Energy Research and
Development Administration [now Department of Energy] and the Nuclear
Regulatory Commission), or under the Clean Air Act (the Environmental Protection
Agency). The CPSC has no authority to regulate any risk of injury associated with
electronic product radiation emitted from an electronic product if such risk may be
regulated under the Public Health Act (the Food and Drug Administration).
Manufacturers, distributors, retailers, and importers are obligated to report
consumer product safety problems to the CPSC, which may order a recall or import
ban. The CPSA provides the general authority of the CPSC over inspections, recalls
and import bans for consumer products generally, with the exceptions noted above,
unless other statutes provide other agencies with authority over specific products.
Although some of the other statutes enforced by the CPSC contain provisions
specifically addressing notice/recall, import bans, and other remedies similar to those
contained in the CPSA, not all do.
The CPSC is authorized to inspect domestic facilities where a consumer product
is manufactured and the conveyances by which it is transported and which may be
relevant to the safety of such product.3 It is unlawful for a person to fail or refuse to
permit inspection as required under the CPSA.4 For purposes of the CPSA, including
inspection and testing, the CPSC may purchase any consumer product and it may
require any manufacturer, distributor, or retailer of a consumer product to sell the
product to the CPSC at cost.5 The CPSC is authorized to establish and maintain a
permanent product surveillance program, in cooperation with other appropriate
Federal agencies, for the purpose of carrying out the CPSC’s responsibilities under
the CPSA and the other Acts it administers and preventing the entry of unsafe
consumer products into the United States.6 The U.S. Customs and Border Protection
(CBP)7 is authorized to obtain and deliver samples of consumer products being
offered for importation to the CPSC, upon its request, for the purpose of inspecting
such samples for compliance with the CPSA.8 Similarly, under FHSA § 14 (15
U.S.C. § 1273), the CBP is authorized to obtain and deliver samples of hazardous
substances being imported or offered for importation to the CPSC, upon its request,
for the purpose of inspecting such samples for compliance with the FHSA.
3 CPSA §16 (codified at 15 U.S.C. §2065) and 16 C.F.R. §1118.2.
4 CPSA §19(a)(3) (codified at 15 U.S.C. §2068(a)(3)).
5 CPSA §27 (codified at 15 U.S.C. §2076).
6 CPSA §17(h) (codified at 15 U.S.C. §2066(h)).
7 The statute and regulations refer to the Secretary of the Treasury although such functions
are now undertaken by Department of Homeland Security (U.S. Customs and Border
Protection (CBP)) pursuant to the Homeland Security Act and 19 C.F.R. §§0.1-0.2.
8 CPSA §17(b) (codified at 15 U.S.C. §2066(b)).
Under CPSA §19,9 it has been unlawful, among other things, to manufacture,
sell, distribute in commerce, or import into the United States any consumer product
which does not comply with an applicable consumer product safety standard or which
has been declared a banned hazardous product by a rule under the CPSA. Other
consumer-product-related statutes contain similar provisions concerning prohibited
or unlawful acts. The CPSIA has expanded the scope of prohibited acts.
Under CPSA §15,10 every manufacturer (defined to include importers),
distributor, or retailer of a consumer product distributed in commerce who obtains
information reasonably supporting the conclusion that such product (1) fails to
comply with an applicable consumer product safety rule or with a voluntary
consumer product safety standard; (2) contains a defect which could create a
substantial product hazard; or (3) creates an unreasonable risk of serious injury or
death, shall immediately inform the CPSC, unless such manufacturer, distributor, or
retailer has actual knowledge that the CPSC has been adequately informed of such
defect, failure to comply, or risk. If the CPSC determines after a hearing that a
product presents a substantial product hazard and that notification is required in order
to adequately protect the public from such substantial product hazard, the CPSC may
order the manufacturer or any distributor or retailer of the product to take any one or
more of the following actions: (1) to give public notice of the defect or failure to
comply; (2) to mail notice to each person who is a manufacturer, distributor, or
retailer of such product; or (3) to mail notice to every person to whom the person
required to give notice knows such product was delivered or sold. The CPSIA
expanded the scope of these provisions to cover noncompliance with rules under all
acts under CPSC jurisdiction and to provide additional means of providing public
Prior to the CPSIA, if the CPSC determined after a hearing that a product
presented a substantial product hazard and that action under that provision was in the
public interest, it could order the manufacturer or any distributor or retailer of such
product to take whichever of the following actions it elected to take: (1) to bring the
product into compliance with the applicable product safety rule or repair the defect;
(2) to replace the product with an equivalent product that does comply or is not
defective; or (3) to refund the purchase price. The CPSIA removed the ability of the
manufacturer, distributor or retailer to choose the remedial action to be taken and
provides for the CPSC to determine which action should be taken.
In addition to its authority with regard to a substantial product hazard, under
CPSA §12, the CPSC may bring an action in federal district court to have a product
declared an imminent hazard, defined as a consumer product which presents
imminent and unreasonable risks of death, serious illness, or severe personal injury,
and to seize the product. If the court determines that a product constitutes an
imminent hazard, it may grant any relief necessary to protect the public, including an
order requiring public notification, recall, and remedies including repair,
replacement, or refund of such product.
9 Codified at 15 U.S.C. §2068.
10 Codified at 15 U.S.C. §2064.
Under the FHSA §15,11 the CPSC may order a manufacturer, distributor, or
dealer to take remedial action with respect to a banned hazardous substance similar
to remedies under the CPSA, including (1) giving public notice that an article or
substance is a banned hazardous substance; (2) mailing notice to each person who is
a manufacturer, distributor, or dealer of such article or substance; and (3) mailing
such notice to every person to whom the person giving the notice knows such article
or substance was delivered or sold. The CPSC may also order the repair of such
article or substance, replacement with an equivalent compliant article or substance,
or refund. Similar notification and remedial actions may be ordered with respect to
any toy or other article intended for use by children that is not a banned hazardous
substance but that contains a defect which creates a substantial risk of injury to
The CPSC does not pay for the costs of a notice of product hazard or defect or
any ordered repair, replacement, or refund; costs are born by the manufacturer,
distributor, or retailer. An order issued under CPSA §1512 with respect to a product
may require any person who is a manufacturer, distributor, or retailer of the product
to reimburse any other person who is a manufacturer, distributor, or retailer of such
product for such other person’s expenses in connection with carrying out the order,
if the CPSC determines such reimbursement to be in the public interest. Also, no
charge shall be made to any person (other than a manufacturer, distributor, or retailer)
who avails himself of any remedy provided under an order concerning repair,
replacement, or refund, and the person subject to the order shall reimburse each
person (other than a manufacturer, distributor, or retailer) who is entitled to such a
remedy for any reasonable and foreseeable expenses incurred by such person in
availing himself of such remedy. FHSA §14(d)13 contains reimbursement provisions
similar to CPSA §15.14 Any person who is a manufacturer, distributor, or dealer of
a noncompliant toy, article, or substance may be ordered to reimburse any other
person who is a manufacturer, distributor, or dealer of such toy, article, or substance
for such other person’s expenses in connection with carrying out a remedial or
notification order, if the CPSC determines such reimbursement to be in the public
interest. Also, no charge shall be made to any person (other than a manufacturer,
distributor, or dealer) who avails himself of any remedy provided under a remedial
order and the person subject to the order shall reimburse each person (other than a
manufacturer, distributor, or dealer) who is entitled to a remedy for any reasonable
and foreseeable expenses incurred in seeking such remedy.
CPSC has the authority to establish import standards and policy with regard to
statutes and products under its jurisdiction.15 Under the CPSA, importers are made
subject to the same responsibilities as domestic manufacturers in protecting
American consumers from unreasonably hazardous products. This is explicitly stated
11 Codified at 15 U.S.C. §1274.
12 Codified at 15 U.S.C. §2064.
13 Codified at 15 U.S.C. §1273(d).
14 Codified at 15 U.S.C. §2064.
15 Its policy on imported products, importers, and foreign manufacturers is set out at 16
in the definition of “manufacturer” as any person who manufactures or imports a
consumer product.16 Like the CPSA, the FHSA and the FFA assign responsibilities
to importers comparable to those of domestic manufacturers and distributors.17
Various statutory provisions authorize the CPSC to ban noncompliant imports. If the
CPSC determines after a hearing that a product presents a substantial product hazard
and that action under that provision is in the public interest, it may issue an order
prohibiting the importation into the United States of that product.18 An imported
consumer product may be refused admission to the United States if it does not
comply with an applicable consumer product safety rule; does not comply with
labeling and certification requirements relating to applicable product safety
standards; is an imminently hazardous product; or has a product defect which
constitutes a substantial product hazard.19 The CPSC may then inform the CBP20 that
an imported consumer product fails to comply with an applicable consumer product
safety rule and/or has a product defect which constitutes a substantial product hazard
and may request the CBP to refuse admission to any such consumer product.21 As
discussed in this report, the CPSIA has expanded grounds for refusing admission to
a product. Under FHSA § 14,22 a misbranded hazardous substance or banned
hazardous substance being imported or offered for import shall be refused
importation. Section 9 of the Flammable Fabrics Act (FFA)23 provides that imported
products subject to flammability standards under the FFA shall not be released from
customs custody except in accordance with § 499 of the Tariff Act of 193024
providing for release only after inspection by CBP for compliance with U.S. laws.
The CBP also has authority for the redelivery or recall of products already released
under bond but later found not to comply with flammability standards and for
obtaining liquidated damages for breach of a condition of the bond arising out of a
failure either to correct the product to comply or to redeliver it.
Such noncompliant or defective products must be destroyed or exported from
the United States unless they can be modified by the owner or consignee in a manner
that will enable them to be granted admission into the United States.25 The CPSC
and the CBP have the authority to give the owner or consignee the opportunity to
make such modifications and to monitor such modifications.26 Prior to the CPSIA,
such products could also be ordered destroyed at the discretion of the CPSC. The
16 CPSA §3(a)(4) (codified at 15 U.S.C. §2052(a)(4)).
17 See FHSA §15(f) (15 U.S.C. §1274(f)); FFA §9 (15 U.S.C. §1198).
18 CPSA §15(d) (codified at 15 U.S.C. §2064(d)).
19 CPSA §17 (codified at 15 U.S.C. §2066).
20 CPSA §17(b) (codified at 15 U.S.C. §2066(b)).
21 16 C.F.R. §1115.21(d).
22 Codified at 15 U.S.C. §1273.
23 Codified at 15 U.S.C. §1198.
24 Codified at 19 U.S.C. §1499.
25 CPSA §17(c and e) (codified at 15 U.S.C. §2066(c and e)).
26 CPSA §17(c and d) (codified at 15 U.S.C. §2066(c and d)).
CPSIA made destruction mandatory, unless the CBP permits export in lieu of
destruction and the product is exported within 90 days of such permission.27 Before
the CPSIA, at its discretion, the CPSC could condition importation of a consumer
product on the manufacturer’s/importer’s compliance with the inspection and
recordkeeping requirements of the CPSA. The CPSIA makes compliance with such
requirements mandatory, meaning that an imported product must be refused entry
into the United States if the importer does not comply with requirements related to
its product.28 The CPSC may seek an injunction or seizure of a consumer product
that does not comply with a consumer product safety rule or that is being
manufactured, sold, distributed, or imported in violation of a CPSC order for
remedial action or prohibiting importation.29
With regard to imported products that are admitted and subsequently become
the subject of a recall, if the CPSC is not able to exercise jurisdiction over a foreign
manufacturer that has no U.S. subsidiary/presence, the CPSC may order the importer
to undertake a recall and to be responsible for the expense of a mandatory recall,
since “manufacturer” is defined to include importers under the CPSA.30 The
importer cannot obtain reimbursement under the CPSA, but might be able to obtain
reimbursement from the foreign manufacturer as a contractual matter.31 Under CPSA
§17(f),32 the owner or consignee of an imported consumer product denied entry into
the United States must pay for all expenses in connection with its storage or
destruction. In default of such payment, these expenses shall constitute a lien against
any future importations made by such owner or consignee. Under FHSA §14(c),33
the owner or consignee must pay for all expenses (including travel, per diem, or
subsistence, and salaries of officers or employees of the United States) in connection
with the destruction of a hazardous substance denied importation into the United
States; the supervision of the relabeling or other action authorized to bring a
hazardous substance denied importation into compliance with the FHSA so that it
may be granted importation; and the storage for any hazardous substance denied
importation. In default of such payment, the FHSA, like the CPSA, provides that
such expenses shall constitute a lien against any future importations made by such
owner or consignee.34
27 CPSA §17(e) (codified at 15 U.S.C. §2066(e)).
28 CPSA §§16(d) and 17(g) (codified respectively at 15 U.S.C. §§2065(d) and 2066(g)).
29 CPSA § 22 (codified at 15 U.S.C. §2071).
30 CPSA §15(e) (codified at 15 U.S.C. §2064(e)) for recall reimbursement and CPSA
§3(a)(11) (codified at 15 U.S.C. §2052(a)(11)) for definition of “manufacturer.”
31 See CPSA §15(e) (codified at 15 U.S.C. §2064(e)) and Riegel Textile Corp. v. Celanese
Corp., 493 F. Supp. 511 (S.D.N.Y. 1980) (manufacturer has no cause of action against
supplier under CPSA or FHSA for violation of those statutes, but state cause of action under
state laws may remain).
32 Codified at 15 U.S.C. §2066(f).
33 Codified at 15 U.S.C. §1273(c).
The Office of Compliance and Field Operations within the CPSC conducts
compliance and administrative enforcement activities under all administered acts,
provides advice and guidance on complying with all administered acts, and reviews
proposed standards and rules with respect to their enforceability.35 Among other
things, it reviews consumer complaints, conducts inspections and in-depth
investigations, and analyzes available data to identify those consumer products
containing defects that pose a substantial risk of injury or do not comply with
existing safety requirements. The Office negotiates and monitors corrective action
plans for products that are defective or fail to comply with specific regulations.
The Office of International Programs and Intergovernmental Affairs within the
CPSC was established to enable a more coordinated and comprehensive approach to
international cooperation with regard to harmonization of safety standards
internationally and the ensuring of compliance with U.S. safety standards for
products imported into the United States. Memoranda of understanding have been
concluded with CPSC counterparts in various countries or regional groups, including
the People’s Republic of China, the European Union, and Canada.
The CPSC held a public meeting on September 4, 2008, to explain their plans
to implement the CPSIA and will continue to hold a series of such meetings.36
Current Legislation: P.L. 110-314
There have been a number of proposals in the 110th Congress to address a range
of consumer product safety issues. In addition to the two major CPSA reform bills
that ultimately resulted in P.L. 110-314, H.R. 4040 and S. 2045/S. 2663,37 there have
been other comprehensive reform bills and bills addressing discrete issues, including
safety standards for cigarette lighters, All-Terrain-Vehicles or ATVs, furniture,
swimming pools, portable gasoline containers, durable infant or toddler consumer
products such as strollers and cribs, and other products; certification of safety-
standard compliance; the enactment of lead content standards for consumer products
and more stringent lead in paint standards; third-party testing for product safety and
compliance; increases in civil and/or criminal penalties; increases in CPSC personnel
assigned to ports-of-entry; the prohibition of sales or resales of products that are the
subject of a recall; expanded jurisdiction of the CPSC to cover amusement park rides
at a fixed site; greater coordination among the various agencies involved in consumer
safety issues; and others. Language from some of the free-standing bills addressing
specific issues was incorporated into the CPSIA.
35 16 C.F.R. §1000.21.
36 Video and slide presentations for the meeting on September 4, 2008, and information on
future meetings about testing and certification and standards for all-terrain vehicles, lead,
and phthalates, is available at [http://www.cpsc.gov/about/cpsia/cpsia.html], last visited
September 22, 2008.
37 After the House passed H.R. 4040, the Senate took up S. 2663, a compromise version of
S. 2045, and amended it on the Senate floor, then amended H.R. 4040 to substitute the text
of S. 2663 and passed it.
The following sections will summarize the provisions of P.L. 110-314. The
final text was the result of a lengthy conference negotiation. The Senate-passed
version of H.R. 4040 [hereinafter Senate Text]38 and the House-passed version of
H.R. 4040 [hereinafter House Text]39 contained many similar provisions
strengthening the authority and resources of the CPSC and also establishing standards
concerning lead content in children’s toys. However, the Senate Text contained
additional reform provisions, such as whistleblower protection and several provisions
concerning consumer product safety standards for specific items such as all-terrain
vehicles and garage door openers. Conversely, most of the provisions of the House
Text had parallel provisions in the Senate Text; the major exception was the
provision adding a prohibition on industry-sponsored travel by members or
employees of the CPSC, a response to the much-criticized practice by the CPSC of
accepting travel and lodging expenses from industry sponsors for trips related to
CPSC business, that was widely reported after the S. 2045 markup. On July 29,
2008, H.Rept. 110-787, the Conference Report for H.R. 4040, the Consumer Product
Safety Improvement Act of 2008, was released after several months of negotiations
in the conference committee to reconcile differences between the House and Senate
versions of the bill. The bill passed the House of Representatives and the Senate on
July 30, 2008 (424-1) and July 31, 2008 (89-3), respectively. On August 14, 2008,
President Bush signed the bill into law as P.L. 110-314. CPSC Chairman Nord and
Commissioner Moore each expressed approval of the final legislation, with Chairman
Nord expressing a desire for Congress to appropriate further funding to carry out the
new mandates of the legislation.40
Children’s Product Safety
Lead Content and Measurement (§101). Under CPSIA §101, 15 U.S.C.
§1278a, in products for children aged 12 and younger, the permissible lead level will
be phased in over three years at 600 parts per million (ppm) within 180 days of
enactment, 300ppm after one year, and 100ppm after three years. If 100ppm is not
technically feasible, the CPSC must set the lowest level that is technologically
feasible. After promulgation of either the 100ppm level or the lowest level
technologically feasible, the CPSC is required to periodically review and lower the
limit at least every five years. There are exceptions for certain materials or products
and inaccessible component parts. If the CPSC determines that it is not
technologically feasible for certain electronic devices to comply with the lead
standard, it must also issue requirements to minimize exposure or accessibility to
lead in those devices. The permissible lead level in paint is reduced to 0.009 percent
(90 ppm) from 0.06 percent (600ppm), subject to subsequent periodic review and
reduction to the lowest lead level technologically feasible. A CPSC Office of
38 The short title for the Senate version of the bill is the CPSC Reform Act.
39 The short title for the House version of the bill is the Consumer Product Safety
40 See CPSC Press Release 08-349, Chairman Nord’s statement, dated July 31, 2008,
available at [http://www.cpsc.gov/cpscpub/prerel/prhtml08/08349.html] (last visited
September 19, 2008), and Commissioner Moore’s statement, dated July 31, 2008, available
at [http://www.cpsc.gov/pr/Moore073108cpsia.pdf] (last visited September 19, 2008).
General Counsel memorandum clarifies that inventory of noncompliant products may
not be sold after this provision’s effective date of February 10, 2009.41 Although the
CPSIA does not expressly ban such sale or distribution, the Office of General
Counsel concludes that a reading of the CPSIA as a whole indicates such an
Third-Party Testing and Certification of Children’s Products (§102).
Section 102 of the CPSIA amends CPSA §14 (codified at 15 U.S.C. §2063) to
require manufacturer certification of safety testing by accredited third-party
laboratories of products designed or intended primarily for children aged 12 and
younger. The CPSC must issue accreditation requirements for such laboratories and
maintain a list of accredited laboratories; deadlines for the publication of such
requirements differ according to the type of product being tested by the laboratory.
Specific deadlines for publication of accreditation requirements after CPSIA42
enactment are established for the testing of lead paint (30 days of enactment), cribs
and pacifiers (60 days of enactment), small parts (90 days of enactment), children’s
metal jewelry (120 days of enactment), and baby bouncers/walkers/jumpers (210 days
of enactment). Accreditation requirements related to the testing of other children’s
products must be published as early as practicable, but no later than 10 months after
CPSIA enactment or, for safety rules established or revised one year or more after
CPSIA enactment, not later than 90 days before such rules take effect.
For three years after enactment, CPSC proceedings for promulgating
accreditation requirements are exempt from requirements of the Regulatory
Flexibility Act and the rulemaking requirements of the Administrative Procedure Act.
Upon request, proprietary labs insulated from the influence of the
manufacturer/private labeler-owner may be accredited by the CPSC and permitted
to test products if they provide equal or greater protection than available third-party
labs. CPSC personnel are authorized to enter and inspect any accredited proprietary
lab (CPSIA §215(a)). The CPSC is required to establish requirements for the
periodic audit of third-party testing labs as a condition of continuing accreditation.
The CPSC is authorized to revoke accreditation if necessary after an investigation
finding that a lab failed to follow a requirement established by the CPSC or is unduly
influenced by a manufacturer or government entity.
It is unclear which preemption provisions in the CPSA, as amended by the
CPSIA, if any, apply to this provision concerning third-party testing and certification.
There are two preemption provisions that are possible applicable. The new provision
added by CPSIA §106(h), discussed below, exempts from federal preemption any
state/local toy safety standards in effect on the date of CPSIA enactment, if the
state/locality applies for exemption within 90 days of CPSIA enactment. Under this
provision, states/localities may also apply for exemption of future proposed
state/local toy safety standards. If the preemption provisions of CPSIA §106 do not
41 Cheryl A. Falvey, CPSC General Counsel, the CPSC Office of General Counsel,
Memorandum on Retroactive Application of CPSIA to Inventory (September 12, 2008).
42 Third Party Testing for Certain Children’s Products: Notice of Requirements for
Accreditation of Third Party Conformity Assessment Bodies To Assess Conformity With
Part 1303 of Title 16, Code of Federal Regulations, 73 Fed. Reg. 54564 (2008).
apply, the general preemption provisions under CPSA §26, which predate the CPSIA,
might apply to the testing and certification provisions, which are amendments to the
CPSA. These provisions permit states/localities to apply for exemption of a
proposed safety standard or regulation which is designed to protect against a risk of
injury associated with a consumer product subject to a consumer product safety
standard under the CPSA. These provisions do not permit exemption of existing
state/local product safety standards or regulations which prescribe requirements for
the performance, composition, contents, design, finish, construction, packaging, or
labeling and which are designed to deal with the same risk of injury as the federal
standard, unless such requirements are identical to the those of the federal standard.
It is unclear whether testing and certification requirements may be considered
consumer product safety standards for the purpose of these preemption provisions.
Tracking Labels for Children’s Products (§103). Effective one year
after the CPSIA enactment, CPSIA §103 amends CPSA §14 (codified at 15 U.S.C.
§2063) to require a manufacturer to place tracking labels on children’s products and
packaging, to the extent practicable, containing information (manufacturer,
production date, and production batch/run of the product) enabling the retailer and
ultimate purchaser to identify recalled products and enhancing the ability of the
manufacturer to track unsafe products to their precise sources. Advertisements,
labels, and packaging for a consumer product will be prohibited from referring to a
mandatory consumer product safety rule or a voluntary standard unless the product
complies with such rule or standard.
Standards and Registration Forms for Durable Nursery Products
(§104). Under CPSIA §104 (15 U.S.C. §2056a), the Danny Keysar Child Product
Safety Notification Act, the CPSC, in consultation with stakeholders and product
engineers/experts, must establish mandatory safety standards for a variety of durable
nursery products for use by children under five years of age. Such products include
cribs, toddler beds, high chairs and booster/hook-on chairs, gates and other
enclosures, bath seats, play yards, stationary activity centers, infant carriers, strollers
walkers, swings, bassinets, and cradles. The CPSC is required to periodically review
and revise such standards to ensure the highest level of safety feasible for such
products. Any commercial users (including child care centers and hotels/motels) are
prohibited from manufacturing, selling, reselling, leasing, or providing for use any
cribs that do not comply with these mandatory safety standards. Manufacturers of
durable children’s products must provide consumers with registration forms in a
required format/mode facilitating registration and to maintain databases of registrants
to be used to notify such consumers in the event of a product recall or safety alert.
The CPSC is required to study whether registration forms should also be mandatory
for other children’s products and to periodically review and assess the effectiveness
of alternative recall notification technologies.
Labeling for Certain Toy and Game Advertising (§105). CPSIA §105
amends FHSA §24 (codified at 15 U.S.C. §1278), requiring choking hazard labelling
for certain toys and games, to require similar cautionary statements on or
immediately adjacent to advertising that provides a direct means of purchase,
including advertising on Internet websites, in catalogues, or other advertising
materials. This requirement applies to advertisements by a retailer, manufacturer,
importer, distributor, or private labeler. A manufacturer, importer, distributor, or
private labeler is required to inform a retailer to whom it provides a product of any
cautionary statement requirement applicable to that product. A retailer is not liable
for violating the advertising requirement if it requested applicable cautionary
statement information from a manufacturer, importer, distributor, or private labeler
who failed to provide such information or provided false information. The statement
must be displayed in a clear and conspicuous manner and in the language primarily
used in the advertisement, website, or catalogue. Certain format and display
requirements apply. The advertising requirements take effect for internet websites
120 days after enactment and for catalogues 180 days after enactment; the CPSC may
grant a grace period for catalogues. The distribution of a noncompliant
advertisement is a prohibited act under the CPSA.
Adoption of a Mandatory Toy Safety Standard (§106). CPSIA §106 (15
U.S.C. §2056b) provides that ASTM International Standard F963-07, Consumer
Safety Specification for Toy Safety, the voluntary toy safety standard promulgated by
the American Society for Testing and Materials (ASTM), an independent standard-
setting organization, shall be deemed a mandatory interim consumer product safety
standard, pending review, in the form current on the date of enactment, with certain
exceptions. The exceptions are §4.2 and Annex 4 or any provision that restates or
incorporates an existing mandatory standard or ban promulgated by the CPSC.
Within two years of CPSIA enactment, the CPSC must promulgate this interim
standard, with revisions to further enhance toy safety, by a final rule after reviewing
it. The CPSC is required to periodically review and revise the rule to ensure the
highest level of toy safety.
ASTM is required to notify the CPSC if it proposes revisions to this standard.
The proposed revision will be incorporated into the CPSC rule and the revised
standard will then be considered a CPSC rule effective 180 days after the ASTM
notification was received, unless the CPSC notifies ASTM within 90 days of
receiving such notification that it has determined that the proposed revision does not
improve the safety of the products covered by the standard. The existing standard,
without the proposed revision, will then continue to be the CPSC rule.
CPSIA §106(h) provides that nothing in the federal toy standard or in the CPSA
statute concerning preemption shall prevent a state or local safety requirement for
toys or children’s products from remaining in effect if it was in effect on the day
before the date of CPSIA enactment and the state or locality has filed the requirement
with the CPSC within 90 days after CPSIA enactment. Upon such application, the
CPSC shall consider a proposed state or local safety standard and shall grant the
exemption if the state or local standard provides a significantly higher degree of
protection than the federal standard and does not unduly burden interstate commerce.
Study of Disparities in Injury/Death Rates of Minority Children
(§107). Section 107 of the CPSIA requires the U.S. Government Accountability
Office (GAO), within 90 days of the date of enactment of this legislation, to initiate
a study, by itself or an independent contractor, assessing racial/ethnic disparities in
the risks and incidence of preventable injuries and deaths related to suffocation,
poisonings, and drownings, including those linked to the use of cribs, mattresses,
swimming pools, toys, and other products intended for use by children. Minority
populations in the study include Black, Hispanic, American Indian, Alaskan Native,
Native Hawaiian, and Asian/Pacific Islander children in the United States. GAO
shall consult with the CPSC as necessary. GAO is required to report its findings to
the relevant congressional committees not later than one year after the date of
enactment of this legislation, including recommendations for minimizing risks of
preventable deaths and injuries among minority children, for awareness and
prevention campaigns targeting minority populations, and for education initiatives
to reduce current statistical disparities.
Ban on Specified Phthalates and Certain Alternatives in Certain
Children’s Products and Child Care Articles (§108). Beginning 180 days
after enactment of the CPSIA, §108 of the CPSIA (15 U.S.C. §2057c) permanently
bans the three phthalates (chemical plasticizers used in toys and other children’s
products) whose toxicity is not disputed and temporarily bans three other phthalates,
pending a review by a Chronic Hazard Advisory Panel (CHAP).43 It prohibits
children’s toys or child care articles that contain more than 0.1% 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% of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl
phthalate (DnOP) are prohibited on an interim basis until a review by a CHAP. After
the CPSC receives the report from the CHAP, it must determine, by rule, whether to
continue the interim ban; evaluate the CHAP findings and recommendations; and
declare any children’s product containing phthalates to be a banned hazardous
product if it determines this necessary to protect children’s health. This provision
clarifies that it does not preempt state laws regulating the use of phthalate alternatives
not specifically regulated in a standard under the CPSA. “Children’s toy” is defined
as a product designed or intended for a use by a child 12 years of age or younger, and
“child care article” is defined as a product designed or intended for a child three years
of age or younger to facilitate sleep, feeding, sucking, or teething.
Strengthening Commission Administration and Resources
Reauthorization Years and Funding (§201). Section 201(a) of the CPSIA
amends CPSA §32(a) to authorize progressively increasing appropriations annually.
Out of these amounts, funding shall be made available for travel, subsistence, and
related expenses incurred for official duties of the Commissioners and employees in
attending meetings. This travel money is to be used in lieu of accepting funds from
outside sources, as further discussed below.
43 For an analysis of this issue, see CRS Report RL34572, Phthalates in Plastics and
Possible Human Health Effects, by Linda-Jo Schierow and Margaret Mikyung Lee.
Table 1. Authorized Total Appropriations and Travel Component
for CPSC, FY2010-FY2014
Fiscal YearAuthorized AmountAmount
FY2010 $118,200,000 $1,200,000
FY2011 $115,640,000 $1,248,000
FY2012 $123,994,000 $1,297,000
FY2013 $131,783,000 $1,350,000
FY2014 $136,409,000 $1,403,000
Source: Section 201(a) of the CPSIA.
In addition to requiring the CPSC to report on personnel development efforts,
CPSIA §201(b) requires the CPSC to submit a report on funding allocation plans to
the appropriate congressional committees, not later than 180 days after enactment of
the act. This report must include the efforts of the CPSC to reach and educate
second-hand retailers of consumer products, particularly with regard to recalls of
durable nursery products. Such education efforts shall include the development of
educational materials for distribution not later than one year after enactment of the
Full Commission Funding and Interim Quorum (§202). Under CPSA
§4(d) (codified at 15 U.S.C. §2053), three commissioners of the five constitute a
quorum; two can constitute a quorum if necessary due to a vacancy on the
Commission, but only for six months after the vacancy occurs. Title III of Pubic Law44
102-389 limited funding to three Commissioners from FY1993 and thereafter. This
limitation impeded the Commission’s ability to meet the quorum necessary to take
certain actions. The limitation dated back to the mid-1980s when Congress was
contemplating restructuring the CPSC as a three-member commission or replacing
the Commission with a single administrator, which had been the Senate’s original
proposed scheme in its 1972 version of the legislation that ultimately became the45
CPSA. During consideration of the 1990 reauthorization of the CPSC, the Senate
44 106 Stat. 1571, 1596 (1992) (codified as amended at 15 U.S.C. §2053 note).
45 The funding limitation dates back to §101(b)(1) of P.L. 99-434, which incorporated by
reference H.R. 5313, the Department of Housing and Urban Development-Independent
Agencies Appropriations Act, 1987, as passed by the House, which contained the limitation.
At that time, based on discussions with the authorizing committee and consumer groups, the
House Committee on Appropriations concluded that the five-member structure could not be
justified any longer and urged consideration of a change to a single administrator heading
the agency. The committee’s apparent interim solution was in effect to have a three-member
Commission. H.Rept. 99-731 [for H.R. 5313] at 21 (1986). See also GAO Report HRD-87-
47, Consumer Product Safety Commission: Administrative Structure Could Benefit From
Change (1987); Robert S. Adler, From “Model Agency” to Basket Case — Can the
bill would have permanently reduced the CPSC to three members with a quorum of
two, but ultimately the authorization of a temporary quorum of two was adopted.46
If a vacancy lasted longer than six months, as had been the case recently, the
Commission could not establish mandatory standards or engage in other rulemaking
or procedures, including taking certain enforcement actions requiring decisions by
the Commissioners, mandatory recalls, and corrective actions. The quorum
requirements were temporarily superseded by §2204 of P.L. 110-53,47 permitting two
Commissioners, if they were not affiliated with the same political party, to constitute
a quorum for six months beginning on the date of enactment of the act (August 3,
Section 202(a) of the CPSIA provides that, if they are not affiliated with the
same political party, two members shall constitute a quorum for one year beginning
on the date of enactment of the act. CPSIA §202(b) repeals the funding limitation,
effective one year after enactment of the act, in order to restore the CPSC to its full
five-member size and prevent the recent quorum problems.
Personnel (§202(c)). Section 202(c) of the CPSIA (15 U.S.C. §2053 note)
requires the CPSC to increase the number of fulltime Commission employees to at
least 500 by October 1, 2013, subject to the availability of appropriations and, out of
this number, requires the addition of an unspecified number of personnel to be
assigned to U.S. ports of entry or to inspect overseas production facilities.48
Under CPSIA §201(b), requiring a CPSC report to the appropriate congressional
committees on funding allocation plans, the CPSC must include the number of full-
time investigators and other full-time equivalents the CPSC intends to employ. This
report must also include CPSC efforts to develop standards for training product
safety inspectors and technical staff and CPSC efforts and policies encouraging
scientific staff to seek appropriate publishing opportunities in peer-reviewed journals
and other media.
Reports to Congress (§203). Section 3003 of P.L. 104-66 (the Federal
Reports Elimination and Sunset Act of 1995, codified as amended at 31 U.S.C.
§1113 note) provided that, with certain exceptions, reports required to be submitted
to Congress, as listed in H. Doc. 103-7, were terminated.
Section 203 of the CPSIA (15 U.S.C. §2076 note) requires that after the date of
enactment of the CPSIA, notwithstanding any rule, regulation or order to the
contrary, the CPSC must comply with the requirement of CPSA §27(k) (codified at
Consumer Product Safety Commission Be Redeemed?, 41 Admin. L. Rev. 61, 82-92 (1989).
46 H.Rept. 101-914, at 18 (1990).
47 Implementing Recommendations of the 911 Commission Act of 2007, 121 Stat. 266, 543.
48 Actual staffing level was 393 full-time equivalent staff in FY2007; 420 was planned for
FY2008; and 444 was requested for FY2009. CPSC, 2009 Performance Budget Request,
at 78 (February 2008).
legislative recommendations and comments, and testimony that it submits to the
President or the Office of Management and Budget. These copies are expressly
exempted from the reporting limitations of P.L. 104-66.
Expedited Rulemaking Procedures (§204). Critics alleged that the prior
rulemaking procedures under CPSA §9 and other acts under the CPSC’s jurisdiction,
the FHSA and the FFA, were unnecessarily onerous, requiring procedural steps
beyond those required by the Administrative Procedures Act.
Section 204 of the CPSIA streamlines the rulemaking procedures under CPSA
§9 and similar provisions under the FHSA and FFA by eliminating the requirement
for an advanced notice of proposed rulemaking (ANPR), a step not required by the
Administrative Procedure Act (APA). This ANPR was required to include an
invitation for persons to submit existing standards as proposed consumer product
safety standards or statements of intention to develop or modify a voluntary standard,
as well as commentary. Amendments conforming to the elimination of this
requirement are also made. CPSIA §204 clarifies that the elimination of the ANPR
requirement does not preclude a person from submitting all or part of an existing
standard as a proposed consumer product safety standard. The FHSA is also
amended to eliminate the required use of additional rulemaking procedures under the
Food, Drug, and Cosmetic Act.
Technical amendments to the FHSA replace references to the Secretary of
Health, Education and Welfare (HEW) [now Health and Human Services (HHS)],
which remained from the original authority of the Secretary of HEW and the Food
and Drug Administration over the FHSA, with references to the CPSC. Technical
amendments to the FFA replace references to the Secretary of Commerce and the
Federal Trade Commission (FTC), which remained from their original authority over
the FFA, with references to the CPSC. References to specific congressional
committees in the rulemaking provisions of the FHSA and the FFA are changed to
references to the “appropriate congressional committees.”
Inspector General Audits and Reports (§205). Section 205 of the
CPSIA (15 U.S.C. §2076b) requires the Inspector General of the CPSC to:
!conduct reviews and audits to assess the CPSC’s capital
improvement efforts, including upgrades of its information
technology system and the development of the new public safety
database, and the adequacy of the accreditation and monitoring
process for third-party testing laboratories;
!within one year of enactment of the CPSIA, conduct a review of (1)
CPSC employee complaints concerning failures of other employees
to properly enforce the rules and regulations of the laws enforced by
the CPSC or otherwise carry out responsibilities if such failures raise
issues of conflicts of interest, ethical violations, or the absence of
good faith, and (2) CPSC actions to address such complaints and
!submit annual reports with respect to the findings and
recommendations resulting from these audits and reviews to the
appropriate congressional committees beginning in FY2010;
!transmit a report to the appropriate congressional committees within
60 days of enactment of the CPSIA on the activities of the Inspector
General, any barriers preventing robust oversight of the CPSC by the
Inspector General, and any additional resources and authority needed
for effective oversight.
This provision further requires the CPSC, within thirty days of enactment of the
CPSIA, to establish and maintain (1) a direct link from the homepage of the CPSC
to the webpage of its Inspector General, and (2) a mechanism on the Inspector
General’s website by which individuals may anonymously report cases of waste,
fraud, or abuse with respect to the CPSC.49
Ban on Industry-Sponsored Travel (§206). The CPSC has been criticized
for the ethical issues raised by its practice of accepting funds from industry groups50
to cover travel to meetings and conferences. As noted above, CPSIA §201(a)
amends the authorization of appropriations in the CPSA to provide funds annually
from FY2010 to FY2014 for travel to attend meetings and similar functions in
furtherance of the official duties of the Commissioners and employees. These funds
are to be used in lieu of accepting payment or reimbursement for such expenses from
any person seeking action from, doing business with, or conducting activities
regulated by the CPSC or whose interests may be substantially affected by the
performance (or nonperformance) of a Commissioner’s or employee’s official duties.
CPSC Chair Nord supported these amendments.51 In the past, she had defended
the practice of accepting such paid travel to seminars and conferences as enabling
industry education and outreach concerning safety standards and CPSC procedures
that otherwise would not have been possible under the previous CPSC budgets.
Section 206 of the CPSIA adds a new §39 to the CPSA (15 U.S.C. §2086) with
parallel language prohibiting Commissioners and employees of the CPSC from
accepting travel and related expenses for any meeting or similar function related to
official duties from a person seeking action from, doing business with, or conducting
activities regulated by the CPSC and whose interests may be substantially affected
by the performance of the Commissioner’s or employee’s official duties.
Information Sharing with Other Government Agencies (§207).
Section 207 of the CPSIA amends CPSA §29 (codified at 15 U.S.C. §2078) by
authorizing the CPSC to share information obtained under the CPSA with federal,
state, local, or foreign government agencies, notwithstanding the public disclosure
requirements of the CPSA, where there is a prior agreement or other written
certification that such information will be maintained in confidence and used only for
law enforcement or consumer protection purposes and certain other conditions apply.
49 The link is at the bottom of the CPSC home page at [http://www.cpsc.gov] and the
anonymous report form is on the Inspector General website at [http://www.cpsc.gov/cgibin/
igform.aspx], both last visited September 19, 2008.
50 154 Cong. Rec. S1561-2 (March 5, 2008) (remarks of Senator Klobuchar).
51 154 Cong. Rec. S1575 (March 5, 2008) (remarks of Senator Klobuchar).
The CPSC may terminate such agreements if it determines that the other agency has
failed to abide by the conditions of the agreement. The CPSC shall not be required
to disclose information it obtained from a foreign government agency or foreign
source, if such information was provided on the condition of confidentiality, or
through a CPSC reporting mechanism sponsored in part by foreign government
agencies. However, nothing in this provision authorizes the CPSC to withhold
information from Congress or prevents the CPSC from complying with a federal
court order in an action by the United States or the CPSC. Foreign government
agencies include multinational organizations comprising foreign states and vested
with law enforcement or investigative authority in civil, criminal, and administrative
matters. The CPSC must notify each state’s health department of any CPSC
mandatory recall or any voluntary recall of which it has been notified.
Employee Training Exchanges (§208). Section 208 of the CPSIA (15
U.S.C. §2053a) authorizes the CPSC to engage in employee exchanges with foreign
government agencies so that officers and employees of the CPSC and the foreign
government agencies may receive or provide training. There is no requirement for
reimbursement or reciprocity; any reimbursement for expenses incurred by the CPSC
shall be credited to the appropriations account from which such expenses were paid.
An officer or employee of a foreign government agency who is employed by the
CPSC as part of a training exchange shall be considered a federal employee during
such employment only for the purposes of federal laws governing work injury
compensation for federal employees, tort claims liability of the Federal Government,
federal employee ethics and government corruption crimes, and any other law or
regulation governing the conduct of federal employees.
Repeal of CPSA §30(d) (§237). Section 237 of the CPSIA streamlines
certain regulatory proceedings under the CPSA by repealing CPSA §30(d) (15 U.S.C.
§2079). The FHSA, FFA, and PPPA existed at the time the CPSA was enacted in
1972 and separately provided for regulatory authority and proceedings. When the
CPSA was enacted, it included a requirement in CPSA §30(d) that a product which
could be regulated under the FHSA, FFA, or PPPA could only be regulated under the
CPSA if the CPSC first issued a rule finding that it was in the public interest to
regulate a product under the CPSA.
Cost-Benefit Analysis under the PPPA (§233). A GAO report
concerning the effectiveness of cost-benefit analyses by the CPSC found, inter alia,
that the CPSC often conducted such analyses in considering a consumer safety
standard, even when not legally required to do so.52 GAO noted that although the
CPSA, FHSA, and FFA required cost-benefit analyses in order to promulgate a
standard, the PPPA did not. Nevertheless, CPSC had conducted such analyses on
several occasions in considering special packaging standards under the PPPA.
Apparently in response to such commentary, CPSIA §233 amends §3 of the PPPA,
regarding establishment of special packaging standards, by clarifying that nothing in
the act shall be construed to require a cost-benefit analysis of a potential safety
standard under the act in order to promulgate such standard.
52 GAO Report GAO/HEHS-97-147, Consumer Product Safety Commission: Better Data
Needed to Help Identify and Analyze Potential Hazards, at 21-22 (1997).
Enhanced Enforcement and Cooperation
Prohibition on Stockpiling (§213). CPSA §9(g) (codified at 15 U.S.C.
§2058(g)) authorizes the CPSC to prohibit manufacturers from stockpiling products
prior to the effective date of a consumer product safety rule; that is, from
manufacturing the product at a higher-than-normal rate between the date that a rule
is promulgated and the date it takes effect, in an attempt to circumvent the rule. This
authority only applied to safety standards and rules promulgated under the CPSA and
not to standards or rules promulgated under other statutes under CPSC jurisdiction
such as the FHSA or FFA.
Section 213 of the CPSIA amends this provision so that it authorizes the
prohibition of stockpiling of products prior to the effective date of an applicable rule
under any statute enforced by the CPSC.
Prohibited Acts (§216). Section 216 of the CPSIA increases the scope of
acts prohibited under CPSA §19 (codified at 15 U.S.C. §2068) by adding new
prohibited acts and by expanding the application of existing prohibited acts. The
additional or amended prohibitions include
!the sale, manufacture, distribution, or importation of a product
regulated by the CPSC that does not comply with an applicable
consumer product safety rule under the CPSA or any similar rule,
regulations, standard or ban under any other act enforced by the
CPSC [prohibition extends to products regulated under other acts
such as the FHSA];
!the sale, manufacture, distribution, or importation of a product that
is the subject of a voluntary corrective action and recall of which
either the CPSC has notified the public or the seller, distributor, or
manufacturer knew or should have known;
!the sale, manufacture, distribution, or importation of a product that
is the subject of a CPSC order for a recall or corrective action or a
court order declaring an imminent hazard;
!the sale, manufacture, distribution, or importation of a banned
hazardous substance, meaning a children’s article or toy which is a
hazardous substance or which contains a hazardous substance
accessible to a child;
!failure to furnish a required compliance certification or issuance of
a false compliance certification under any act enforced by the CPSC,
including failure to comply with requirements for testing,
certification, and tracking labels for certain children’s products;
!sale, importation or distribution of a consumer product bearing a
false safety compliance certification mark;
!misrepresentation to CPSC officers/employees of the scope of
products subject to recall/corrective action or a material
misrepresentation in a CPSC investigation;
!undue influence of a third-party laboratory with respect to testing a
product for compliance with safety standards under any act enforced
by the CPSC;
!the export for sale of any consumer product or substance regulated
by the CPSC (except for the re-export of a product denied
importation into the United States) that is the subject of a voluntary
corrective action, a CPSC order for a recall or corrective action, a
court order declaring an imminent hazard, or that is a banned
hazardous substance (meaning a children’s article or toy which is a
hazardous substance or which contains a hazardous substance
accessible to a child); and
!violation of a CPSC order prohibiting an export under new
subsection 18(c) of the CPSA (see below).
In particular, the prohibition on the sale of products that are the subject of a
mandatory or voluntary recall closes a gap in the prior law, which permitted the
continued sale of inventory that is the subject of a recall. The export restrictions are
also new, since previously there were no restrictions on exports of recalled products
or banned hazardous substances, beyond a requirement to notify the CPSC and the
receiving country that an export did not comply with a U.S. safety standard or was
a banned hazardous substance. In general, these CPSIA amendments prohibit
violations of the new requirements under the CPSIA. Section 216 also makes a
conforming amendment to CPSA §17(a)(2) to prohibit the importation of a consumer
product that does not have a required certificate or label or has a false certificate.
Penalties (§217). Section 217 of the CPSIA increases the civil and criminal
penalties under the CPSA, the FHSA, and the FFA. The maximum civil penalty
increases from $8,000 to $100,000 for each violation and from $1.825 million to
$15,000,000 for a related series of violations.53 Not later than December 1, 2011, and
every five years thereafter, the maximum civil penalty must be adjusted for inflation.
Several factors must be considered in determining civil penalties under the CPSA,
the FHSA, and the FFA, including the nature, circumstances, extent and gravity of
the violation, in addition to those currently enumerated in these acts. The CPSC
must consider mitigation of undue adverse economic impacts on small businesses.
Not later than one year after enactment, the CPSC must promulgate regulations
providing its interpretation of the criteria to be considered in imposing civil penalties.
The amendments to the civil penalties take effect on the earlier of the date on which
the final criteria regulations are issued or the date one year after enactment.
The criminal penalties increase to a maximum of five years imprisonment, a fine
pursuant to 18 U.S.C. §3571 (establishing the maximum monetary fines), or both, for
knowing and willful violations of the CPSA and the FFA and for violations with
intent to defraud or mislead or repeat offenses under the FHSA. Penalties may also
include forfeiture of assets associated with the criminal violation of the CPSA or any
other statutes enforced by the CPSC. Section 217 of the CPSIA also removes the
requirement in the CPSA that directors, officers, and agents have knowledge of a
53 In accordance with statutory guidelines, the amounts specified in the statute before
amendment by the CPSIA, $5,000 and $1.25 million, were adjusted for inflation in 2004 to
$8,000 and $1.825 million for individual violations and a related series of violations,
respectively. 69 Fed. Reg. 68884 (2004).
notice of noncompliance in order to be subject to criminal penalties separate from
those imposed on their corporation.
Enforcement by State Attorneys General (§218). Prior to its amendment
by the CPSIA, CPSA §24 (codified at 15 U.S.C. §2073), entitled “Private
Enforcement of Product Safety Rules and of Section 15 Orders,” provided for a cause
of action that could be brought by “[a]ny interested person (including any individual
or nonprofit, business, or other entity)” in a federal district court to enforce a
consumer safety rule or corrective action order by an injunction. Despite the section
heading and the absence of an express reference to state attorneys general, this
provision apparently had been understood to authorize enforcement actions by state
attorneys general, limited to injunctive relief. The FHSA and FFA were amended in
1990 to expressly authorize state attorneys general to enforce consumer safety rules
under those statutes by obtaining injunctive relief. This amendment was justified and54
premised on the existence of similar authority under the CPSA. However, it
appears that this authority was rarely, if ever, used by state attorneys general, as there
apparently was no reported case precedent for such an action; it appears that state
attorneys general more typically took action under state consumer protections laws,
while urging the CPSC to take action under federal laws.
Section 218 of the CPSIA amends CPSA §24 (codified at 15 U.S.C. §2073) by
renaming the section “Additional Enforcement of Product Safety Rules and of
Section 15 Orders” and adding a new subsection expressly authorizing state attorneys
general (or other authorized state officer) to bring an action in any federal district
court where the defendant is found or transacts business to obtain injunctive relief
against certain prohibited acts under the CPSA.55 Such actions are subject to certain
conditions, similar to the procedures in CPSA §24 and other similar consumer
protection statutes.56 A state must give 30-day written notice to the CPSC before
54 See H.Rept. 101-567 at 17 (1990), and H.Rept. 101-914 at 28 (1990), referring to private
enforcement actions by interested parties including state attorneys general; see also
Consumer Federation of America and U.S. Public Interest Group v. Consumer Product
Safety Commission, 990 F.2d 1298, fn. 12 at 1304 (1993) (seventeen state attorneys general
signed an amicus brief in which, inter alia, they “emphasize that they ‘have the authority
under [the CPSA private enforcement provision] and [their states’] consumer protection
statutes to enforce [a youth] ban on behalf of [their] citizens’” (the “youth ban” refers to a
rule that would ban all new adult-size ATVs for use by children under 16 years old).
55 These violations include prohibitions on the sale of noncompliant products or recalled
products, failure to certify or label products, false certifications or labeling, false safety
certification marks, stockpiling of products before the effective date of a new standard, and
violation of a cellulose insulation standard. The CPSIA does not authorize state attorneys
general to enforce certain violations that involve requirements specific to federal authorities,
such as not making facilities or records available for inspection by CPSC officials and
failure to provide certain information or notification to the CPSC as required.
56 In addition to the aforementioned FHSA and FFA provisions, codified at 15 U.S.C.
§1264(d) and 15 U.S.C. §1194(a), respectively, see e.g., 5 U.S.C. §15c (codified provision
of the Clayton Antitrust Act); 15 U.S.C. § 5712(a) (codified provision of the Telephone
Disclosure and Dispute Resolution Act of 1992, providing for regulations concerning
advertising for, operation of, and billing and collection procedures for, pay-per-call or “900
filing a civil action, except when a state has determined that immediate action is
necessary to protect its residents from a substantial product hazard as defined in
CPSA §15(a). In such cases, a state may file a suit immediately after notifying the
CPSC of such determination. The CPSC may intervene in such civil actions to be
heard on all matters arising from such actions and to appeal decisions in such actions.
A state cannot bring a civil action where the same alleged violation is the subject of
a pending criminal or civil action brought by the Federal Government, aside from
suits alleging a violation of the ban on selling, manufacturing, distributing, or
importing a product that is noncompliant, subject to a mandatory/voluntary corrective
action, or a children’s product that is a banned hazardous substance.
Any outside private counsel retained to assist in such state civil actions is
prohibited from sharing with parties in other private civil actions arising out of the
same facts any information that is subject to a litigation privilege and was obtained
during discovery in the state attorney general’s action, or from otherwise using such
information in the other private civil actions.
In addition to the new state civil enforcement authority in the CPSA, CPSIA
§217 adds a conforming provision to the PPPA authorizing state civil enforcement
of a standard or rule under that act, subject to the procedural requirements of the
Nothing in the new CPSA authority for state civil enforcement actions or in the
similar provisions in the FHSA, FFA, and PPPA shall be construed as preventing a
state attorney general or other state officer from exercising his/her powers under the
state laws or as prohibiting him/her from proceeding in state or federal court on the
basis of an alleged violation of any civil or criminal state statute.
Whistleblower Protections (§219). Notwithstanding criticism of
whistleblower protection by CPSC Acting Chair Nord,57 CPSIA §219 adds a new §40
to the CPSA (15 U.S.C. §2087) to provide whistleblower protections for private
sector employees. Such protections are not provided for federal, state, and local
government agency employees; the compromise reached in the conference agreement
eliminated proposed coverage of government employees.58 New CPSA §40
number” telephone services); 15 U.S.C. § 1603 (codified provision of the Telemarketing and
Consumer Fraud and Abuse Prevention Act, providing for regulations defining and
prohibiting deceptive, coercive, and invasive telemarketing acts or practices); and 15 U.S.C.
§6504 (codified provision of the Children’s Online Privacy Protection Act, enabling parents
to control what information is collected from their children online). These provisions
authorize states or state attorneys general on behalf of their states and their citizens to bring
civil suits to obtain violations of the relevant federal laws, in some cases, monetary damages
as well as injunctive relief.
57 Congress DailyPM (February 20, 2008), available at [http://nationaljournal.com/pubs/
58 Federal employees have whistleblower protection under the Whistleblower Protection Act
of 1989, P.L. 101-12, 103 Stat. 16 (codified as amended at 5 U.S.C. §1201 et seq. See also
establishes a remedy for an employee of a manufacturer, private labeler, distributor,
or retailer, who believes that he/she has been subjected to adverse employment
actions in retaliation for (1) providing information to the employer, Federal
Government, or a state attorney general relating to a violation of any laws, rules,
orders, standards, or bans enforced by the CPSC; (2) testifying in or otherwise
cooperating with a proceeding concerning such violation; or (3) objecting to or
refusing to participate in any activity or policy that the employee reasonably believed
would be a violation of laws, rules, orders, standards, or bans enforced by the CPSC.
The remedy is not available to an employee who, of his/her own volition,
intentionally caused a violation of any laws, rules, orders, standards, or bans enforced
by the CPSC.
The employee can file a complaint with the Secretary of Labor within 180 days
of the alleged retaliatory action. The Secretary must then notify the person named
as responsible for the retaliation and give him/her an opportunity to respond to the
allegations. The Secretary must dismiss a complaint unless the complainant shows
that the whistleblowing activities were a contributing factor in the adverse
employment action. If the complainant shows this, but the employer shows, by clear
and convincing evidence, that it would have taken the same unfavorable action in the
absence of the whistleblowing activities, then the Secretary cannot further investigate
the complaint. Otherwise, within 60 days of the complaint filing, the Secretary of
Labor must conduct an investigation to determine whether there is reasonable cause
to believe the complaint has merit and issue findings in writing, with a preliminary
relief order where merited. Within 30 days of notification of the findings, the
defendant can object and request a hearing; otherwise, the order becomes final and
not subject to judicial review. The new provision establishes the standards for burden
of proof and evidence.
Within 120 days of the hearing, the Secretary of Labor must issue a final relief
order or denial. If the Secretary determines that retaliation has occurred, the
Secretary shall order the person responsible for the retaliation to take affirmative
steps to redress the retaliation; to reinstate the complainant to his or her former
position with compensation, including back pay, and other terms, conditions, and
privileges of his/her employment; and to provide compensatory damages. At the
request of the complainant, the Secretary can also assess a sum of the aggregate
amount of all costs and fees reasonably incurred by the complainant for bringing the
CRS Report RL33918, The Whistleblower Protection Act: An Overview, by L. Paige
Whitaker. State and local employees may have protection under the laws of their state. The
report for S. 2045, an earlier version of the Senate bill concerning consumer product safety
reform, described the earlier whistleblower provision as containing an intergovernmental
mandate as defined in the Unfunded Mandates Reform Act (UMRA) because it would have
required state and local governments to comply with whistleblower protections authorized
in the bill. However, the Congressional Budget Office estimated that the costs to
governments of complying with the mandate would be small and would not exceed the
threshold established in the UMRA. S.Rept. 110-265 at 22 (2008).
If the Secretary of Labor finds that the complaint was frivolous or in bad faith,
the employer may be awarded attorneys’ fees to be paid by the complainant. If the
Secretary has not issued a final decision within 210 days of the complaint filing or
within 90 days of a written determination, the complainant can bring an action for de
novo review in a federal district court with jurisdiction, without regard to the amount
in controversy. The same burdens of proof for the administrative hearing apply to
the judicial review. The court has jurisdiction to grant all relief necessary to make
the employee whole, including injunctive relief and compensatory damages
(including reinstatement with the same seniority status, back pay with interest, and
special damages such as reasonable attorney’s fees, expert witness fees, and litigation
Except where a person has already sued in federal court as described in the
above paragraph, any person adversely affected by a final administrative order can
appeal to the federal appellate court having jurisdiction in the area where the
violation allegedly occurred or in which the complainant resided when the violation
allegedly occurred. Such appeal does not stay the relief order unless so ordered by
the court. If such direct appeal is not made, the administrative order cannot be
judicially reviewed in other proceedings.
The Secretary of Labor can file a civil action in a federal district court for the
District of Columbia or where the violation occurred to enforce an order against a
person who has failed to comply. The court can grant all appropriate relief,
including, but not limited to, injunctive relief and compensatory damages. Also, a
person for whom an order of relief was granted may bring an action in a federal
district court to require compliance, without regard to the amount in controversy or
diversity of citizenship of the parties. The court may award court costs and fees as
Any nondiscretionary duty imposed by this section is enforceable in a
mandamus proceeding under 28 U.S.C. §1361.
Federal Law Preemption (§231). Certain provisions of the CPSA, FHSA,
FFA, and PPPA establish the extent to which those acts preempt, limit, or otherwise
affect any other federal, state, or local law or affect any cause of action under state
or local law. Section 231(a) of the CPSIA (15 U.S.C. §2051 note) clarifies that these
provisions may not be expanded, contracted in scope, limited, modified, interpreted,
or extended in application in any rule, regulation, preamble, statement of policy, etc.,
of the CPSC. The CPSC may not construe the statutory preemption provisions as
preempting any cause of action under state or local common law or state statutes
regarding damage claims.
The purpose of these provisions apparently is to prevent the CPSC from issuing
directives or statements purporting to preempt state common-law tort causes of
action in the preambles to regulations that it promulgates, such as it did with the
“Standard for the Flammability (Open Flame) of Mattress Sets.”59 Pursuant to
59 71 Fed. Reg. 13472, 13496-7 (2006), promulgating 16 CFR Part 1633, with a preemption
Executive Order 12988 of February 5, 1996,60 the Federal Register notice issuing the
final rule for the mattress standard explained the Commission’s understanding of the
preemptive effect of the Flammable Fabrics Act. Citing congressional intent
evidenced in the legislative history and statutory text, the “Commission intends and
expects that the new mattress flammability standard will preempt inconsistent state
standards and requirements, whether in the form of positive enactments or court
created requirements.” Such preemption directives apparently have become more
common in recent years, causing concern among opponents61 and observations by
some legal scholars that these directives have become a “backdoor” method of
expanding federal objectives.62 In the absence of express congressional, statutory
direction with regard to preemption, agencies may interpret the preemptive intent
through such directives and regulations.63 Commentators have noted that the federal
courts are divided on the issue of the level of deference the courts should give to such
agency preemption directives.64
Section 231(b) of the CPSIA clarifies that nothing in the CPSIA or the FHSA
shall be interpreted as preempting or otherwise affecting state warning requirements
established under state laws in effect prior to August 31, 2003.
As discussed on page 11 of this report, the CPSIA includes certain preemption
provisions regarding state toy standards. The CPSIA does not provide for federal
preemption of state third-party testing and certification requirements.
directive at § N of the notice for the final rule.
60 Section 3(b)(1)(A) of the Executive Order, 61 Fed. Reg. 4729, 4732 (2006), requires
agencies to make every reasonable effort to ensure that a regulation, as appropriate,
“specifies in clear language the preemptive effect, if any, to be given to the regulation.”
61 Catherine M. Sharkey, Symposium: Is the Rule of Law Waning in America? Twelfth
Annual Clifford Symposium on Tort Law and Social Policy: Article: Preemption by
Preamble: Federal Agencies and the Federalization of Tort Law, 56 DePaul L. Rev. 227,
233 (2007) (citing critics of preemption preambles inside and outside the Consumer Product
Safety Commission); Christine H. Kim, The Case for Preemption of Prescription Drug
Failure-to-Warn Claims, 62 Food Drug L.J. 399 (2007) (noting criticism of the Bush
Administration for using preemption to accomplish “silent tort reform”).
63 Sharkey, supra note 61, at 245.
64 Sharkey, supra note 61, at 242-7; Kim, supra note 61, at 419-421 (discussing cases in the
context of Food and Drug Administration preambles with preemption directives); Thomas
C. Galligan, Jr., U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and
Develop Tort Law - Defamation, Preemption, and Punitive Damages, 74 U. Cin. L. Rev.
1189, 1223-43 (2006) (discussing leading cases re preemption of state tort claims); Howard
L. Dorfman, Vivian M. Quinn & Elizabeth A. Brophy, Presumption of Innocence: FDA’s
Authority to Regulate the Specifics of Prescription Drug Labeling and the Preemption
Debate, 61 Food Drug L.J. 585, 597-601 (2006) (discussing deference to agency
interpretation of rules and regulations; the article generally discusses preemption issues re
Enhanced Inspection, Public Notice, and Recall
Public Disclosure of Information (§211). The CPSIA reduces the
previous protections for disclosure of product information by amending CPSA §6
(codified at 15 U.S.C. §2055). This section provides for certain safeguards for the
public disclosure of information on products that are identified as specific products
of named manufacturers. Proprietary/trade secret information may not be disclosed,
and information protected from disclosure by the Freedom of Information Act
(FOIA) may not be disclosed. The manufacturer must be notified and given the
opportunity to review information to be disclosed with regard to confidentiality and
accuracy within a minimum period of time prior to disclosure, unless the CPSC finds
that public health and safety require a lesser period of notice and publishes this
finding. If the CPSC disagrees with the manufacturer and decides to disclose
allegedly confidential or inaccurate information over the objections of the
manufacturer, the manufacturer may sue in federal district court to enjoin disclosure.
Certain types of information disclosure are exempt from these safeguards, including
information regarding an imminently hazardous product, a violation of the CPSA, a
rulemaking proceeding, an adjudicatory proceeding, or other proceeding under the
CPSA. Consumer advocates and retailer critics of this provision prior to
amendments made by the CPSIA asserted that these safeguards unnecessarily
hindered the disclosure of safety and recall information, while industry advocates
sought stronger protections with regard to substantiation and disclosure of
information on product categories with problems that are not common to all65
Section 211 of the CPSIA reduces prior disclosure protections in several ways:
!A manufacturer/private labeler must respond within 15 days after the
CPSC notifies it of the opportunity to mark as confidential
information that could permit the public to identify it as the
manufacturer/labeler of a product. Although the CPSA previously
did not specify a time within which the manufacturer/labeler must
respond, CPSC regulations concerning disclosures under the
Freedom of Information Act (16 C.F.R. §1015.18) require a response
in five working days to a notice concerning information previously
submitted to the CPSC by the manufacturer/labeler. These
regulations also require that a response must accompany information
submitted after a CPSC notice of the opportunity to request
confidentiality (the submission may indicate a final confidentiality
response within 10 working days of the new submission).
!The amendment reduces from 30 to 15 days before disclosure the
time within which the CPSC must notify a manufacturer/labeler of
an intended disclosure and provide the opportunity to comment on
accuracy, and from 10 to five days the time within which the CPSC
65 See, e.g., GAO Report GAO/HEHS-97-147, Consumer Product Safety Commission:
Better Data Needed to Help Identify and Analyze Potential Hazards 28-32 (1997), for a
discussion of the disclosure rules and policies and the views of industry and consumer
must notify a manufacturer/labeler that it will still disclose
information claimed to be inaccurate based on a CPSC
determination that the disclosure is accurate and fair.
!The CPSC is no longer required to publish in the Federal Register a
finding that public health and safety require a lesser period of notice
to the manufacturer, as it was before the CPSIA; it may publish this
in any manner.
!Exemption of certain information from the disclosure protections is
expanded to include violations of any rule or law enforced by the
CPSC, not just the CPSA, and information for which the CPSC
publishes a finding that public health and safety requires disclosure
with a lesser period of notice and comment on accuracy than
!The CPSC is authorized to file a request for expedited consideration
in a civil action in the federal district court for the District of
Columbia to enjoin the disclosure of allegedly inaccurate
information. However, such expedited consideration is not available
in an action to enjoin disclosure on the grounds that it is protected
or confidential under other laws. The Conference Report noted the
Conferees’ view that such expedited consideration should not delay
action on other important matters before the court, such as Class A
or B felonies.66
Establishment of a Public Consumer Product Safety Database
(§212). Section 212 of the CPSIA adds a new section 6A to the CPSA (15 U.S.C.
§2055a), establishing a publicly available, searchable, internet-accessible database
on the safety of consumer products within two years of enactment. This provision
resolves the issues some database opponents had with the database provision of the
Senate-passed version of H.R. 4040. CPSC Acting Chair Nord previously had
criticized the mandatory database under the Senate-passed version of H.R. 4040 (to
be established without a study concerning feasibility, effectiveness, or other
concerns) because it would have permitted publication of information and complaints
received from consumers before the CPSC had the opportunity to vet the information
for validity or accuracy and also because its implementation would have required 2567
percent of the CPSC budget. However, proponents of the database pointed out that
the National Highway Transportation Safety Administration already has such a
database including automobile complaints reported by consumers that is publicly
accessible through its website.
66 H.Rept. 110-787 at 70.
67 Congress DailyPM (for February 20, 2008, and for March 11, 2008), available at
[http://nationalj ournal.com/ pubs/congressdaily/].
The CPSC currently maintains the National Electronic Injury Surveillance
System (NEISS),68 which is accessible to the public through the CPSC website.69
According to the CPSC website, “NEISS injury data are gathered from the
emergency departments of 100 hospitals selected as a probability sample of all
5,300+ U.S. hospitals with emergency departments. The system’s foundation rests
on emergency department surveillance data, but the system also has the flexibility to
gather additional data at either the surveillance or the investigation level.”70 The
database mandated by the CPSIA is more comprehensive, drawing information from
a variety of sources, including consumers. GAO has concluded that the current data
systems, including NEISS, upon which the CPSC depends in prioritizing its
regulatory and enforcement activities, are inadequate.71
Under new CPSA §6A, the CPSC must transmit to Congress, within 180 days
of the enactment of the CPSIA, a detailed plan for establishing and maintaining this
database, including integration of the database into the CPSC’s overall information
technology improvement plans (the CPSC must expedite such plans). The plan shall
include a detailed implementation schedule and plans for a public awareness
campaign. Not later than 18 months after the plan is submitted, the CPSC must
establish the database. The database shall include
!reports of harm (injuries, illness, death, or risks of injuries, illness,
or death) relating to the use of consumer products, and other
substances regulated by the CPSC, that are received by the CPSC
from consumers, government agencies, health care professionals
(such as physicians, hospitals and coroners), child service providers,
and public safety entities (such as police and firefighters);
!information derived from a notice for a mandatory recall of a
substantial product hazard or a notice for a voluntary corrective
!comments that a manufacturer/private labeler requests be included
in the database to respond to information concerning its products;
!any additional information the CPSC determines to be in the public
The new section establishes requirements for information to be included in reports
submitted to the CPSC and for the mode of submission. The information on the
database must be organized and categorized so that the information is sortable and
retrievable by the date of submission, the name of the consumer product, the model
68 CPSA §5(a) (1) requires the maintenance of an Injury Information Clearinghouse “to
collect, investigate, analyze and disseminate injury data and information relating to the
causes and prevention of death, injury and illness associated with consumer products....”
69 See [http://www.cpsc.gov/library/neiss.html].
70 From the CPSC website description of NEISS, available at [http://www.cpsc.gov/cpscpub/
71 GAO Report GAO/HEHS-97-147, Consumer Product Safety Commission: Better Data
Needed to Help Identify and Analyze Potential Hazards 13-19 (1997).
name, the manufacturer’s/private labeler’s name, and other information fields that are
in the public interest. The CPSC shall provide a clear and conspicuous notice that
the CPSC does not guarantee the accuracy, completeness, or adequacy of the
database contents. The name and address of a person submitting a report of harm for
a product may not be disclosed by the CPSC, except that such information may be
provided to the manufacturer/private labeler of the product with the express written
consent of such person for the purpose of verifying the report.
The safeguard restrictions of CPSA §6(a and b), briefly discussed in the
previous section of this report, do not apply to the database disclosure of reports
received from consumers, health-care providers, public safety entities, and
government agencies. However, such safeguards apply to database information
received via a report of a safety risk from a manufacturer, distributor or retailer under
CPSA §15(b)or any other mandatory or voluntary reporting program established
between the CPSC and a manufacturer, retailer, or private labeler.
Reports must be available on the database within 15 business days of receipt.
Any information determined to be duplicative or inaccurate shall not be included
when the report is added to the database or, if the report is already on the database,
be removed or corrected within 7 business days of such determination. Within five
business days of receipt, the CPSC is required to submit a report of harm to the
manufacturer, who then has 10 business days to respond, to request the inclusion of
its comments on the database, and to vet the report for and designate confidential or
protected information. The CPSC must redact in the database any information it
determines to be protected (trade secret or FOIA). If the CPSC determines that the
designated information is not protected, it shall so notify the manufacturer or private
labeler, who may bring an action seeking removal of such information from the
database in the federal district court where it resides or has its principal place of
business or in the District of Columbia.
The CPSC is required to submit an annual report to the appropriate
congressional committees on the operation of the database, including the cost and the
number of reports and comments received, posted, and corrected or removed. Within
two years of the establishment of the database, the GAO shall submit a report to the
appropriate congressional committees containing an analysis of the general
usefulness of the database, including an assessment of whether a broad range of the
public uses the database and finds it useful, and recommendations for measures to
increase use of the database by consumers and to ensure use by a broad range of the
public. The Conference Report notes that, as part of general authorizations for
FY2010 to FY2014, the Conferees authorized $25,000,000 to establish and maintain
this database and to upgrade and integrate the CPSC information technology
Substantial Product Hazard Reporting Requirement (§214(a)(2)).
Section 15 of the CPSA (15 U.S.C. §2064) requires manufacturers, distributors, and
retailers to inform the CPSC when they learn that a product they distributed fails to
comply with a consumer safety rule/standard, poses a substantial product hazard, or
72 H.Rept. 110-787 at 68 (2008).
creates an unreasonable risk of injury or death. Prior to amendment by the CPSIA,
the language of the provision did not include notification of noncompliance with
rules or standards promulgated by the CPSC under other acts in its jurisdiction.
Section 214(a)(2)(A) of the CPSIA expands the scope of CPSA §15(b) to
require manufacturers, distributors, and retailers of any product or substance
regulated by the CPSC, except for motor vehicle equipment, to notify the CPSC
about products that do not comply with any rule, regulations, standard, or ban
promulgated by the CPSC under any act.
Section 214(a)(2)(C) of the CPSIA further amends CPSA §15(b) to provide that
a notification to the CPSC that a product fails to comply with a rule promulgated
under the FHSA, FFA, or PPPA may not be used as the basis for criminal prosecution
under the FHSA except for offenses requiring a showing of intent to defraud or
mislead. The Conference Report clarifies that the Conferees included this provision
“to avoid an unjust result under a possible construction of section 5 that provides for
strict liability for criminal enforcement without regard to any applicable requirement
of knowledge, intent, or willfulness in such situations. . . . The Conferees do not
intend for [this] to be used to shelter bad actors . . . but rather to ensure that there are
no unintended impediments to the flow of information to the Commission.”73 The
House report, in discussing a similar provision in the House-passed version of H.R.
4040, clarifies that this applies when such notification constitutes the sole basis for
criminal liability without a requirement of knowledge, willfulness, or intent.74 The
CPSA criminal offenses require knowledge and willfulness. The FFA offenses
generally require willfulness, although the FFA offense of failure to notify the CPSC
of the export of a non-compliant product does not. Other acts administered and
enforced by the CPSC do not provide for criminal penalties.
Enhanced Public Notice of Substantial Product Hazards. Section
(codified at 15 U.S.C. §2064(c)) to authorize the CPSC to order a manufacturer,
distributor, or retailer of a product presenting a substantial product hazard to give
public notice of such hazard via its website, notice to third-party internet sellers of
the product, announcements in languages other than English, and announcements on
radio and television where the CPSC determines that a substantial number of
consumers may not be reached by other types of notice. This section further clarifies
that the CPSC may require any notices under CPSA §15(c)(1) to be distributed in a
language other than English, if it determines that doing so is necessary to adequately
protect the public.
Enhanced Authority for Corrective Action Plans and Recalls (§214).
Section 214 of the CPSIA enhances the authority of the CPSC to order corrective
action plans and recalls in several ways. Section 214(a)(1) of the CPSIA expands the
definition of “substantial product hazard” under CPSA §15(a)(1) (codified at 15
U.S.C. §2064(a)(1)) to include failure to comply with a rule, regulation, standard, or
73 H.Rept. 110-787 at 71.
74 H.Rept. 110-501 at 39 (2007).
ban under any act enforced by the CPSC, as well as with an applicable consumer
product safety rule under the CPSA.
Section 214(a)(3 and 4) of the CPSIA amends CPSA §15(c and f) (codified at
15 U.S.C. §2064(c and f)) to enhance recall authority by
!expanding the scope of the hazard notification authority to include
products against which an imminent hazard action has been filed in
federal court as well as products determined by the CPSC to be a
!authorizing the CPSC to order a manufacturer, distributor, or retailer
to cease product distribution; notify other persons involved in
transporting, storing, handling, or distributing the product to cease
distribution; and to notify appropriate state and local health officials;
!requiring the CPSC to rescind any order concerning an allegedly
imminently hazardous product if a federal district court determines
that the product is not an imminently hazardous product; and
!clarifying that the requirement for a hearing prior to the issuance of
an order to cease distribution and notify the public of a substantial
product hazard does not apply to an order concerning a product
against which the CPSC has filed an imminent hazard action.
Section 214(b) amends CPSA §15(d) (codified at 15 U.S.C. §2064(d)) to
strengthen CPSC authorities relating to corrective action plans by
!authorizing the CPSC to order public notice and corrective actions
it determines are in the public interest and removes the ability of the
manufacturer, distributor or retailer to choose which corrective
action it may take;
!expanding and clarifying the scope of CPSC authority to include
orders to conform with requirements of applicable rules, regulations,
standards, or bans, not just applicable consumer product safety rules;
!requiring a CPSC corrective action order to include a requirement
that the person to whom the order applies must submit a plan for
such action to the CPSC for affirmative approval in writing,
replacing the current passive requirement that the plan be
satisfactory to the CPSC;
!authorizing the CPSC to order an amendment of a corrective action
plan if it finds that the approved plan is ineffective or inappropriate
and requiring it to consider whether a repair or replacement changes
the intended functionality of the product; and
!authorizing the CPSC to revoke its approval of an action plan if it
finds that a person has failed to comply substantially with its
obligations under the action plan and prohibiting such person from
distributing the product after receiving notice of such revocation.
Requirements for Recall Notice Content (§214(c)). CPSIA §214(c)
adds a new subsection 15(i) to the CPSA (15 U.S.C. §2064(i)) that requires the
CPSC, within 180 days of enactment of the CPSIA, to establish guidelines for the
information to be included in any recall/corrective action notice or imminent hazard
notice that would aid consumers in identifying/understanding the specific product
recalled, the nature of the associated hazard, and any available remedies. The
provision further details the type of information required to be contained in a recall
notice of a substantial product hazard. This information includes the model or stock
keeping unit (SKU) number, common product names, photograph, description of
action being taken, the number of product units for which such action is being taken,
description of the substantial product hazard, identification of the manufacturers and
distributors of the product, the dates the product was manufactured and sold, details
of any deaths or injuries associated with the product, remedies available to the
consumer, and any other information the CPSC deems necessary.
Identification of Supply Chain (§215(b)). Section 215(b) of the CPSIA
amends CPSA §16 (codified at 15 U.S.C. §2065), regarding inspection and
recordkeeping, by adding a new subsection (c) to require importers, retailers or
distributors of a consumer product or other product or substance regulated by the
CPSC to identify the manufacturer upon the request of a CPSC officer or employee.
Conversely, a manufacturer is similarly required to identify each retailer or
distributor whom the manufacturer directly supplied with a consumer product and
each subcontractor involved in the manufacture of such product or from whom the
manufacturer obtained a component of such product.
Financial Responsibility (§224). Section 224 of the CPSIA adds a new
section 41 to the CPSA (15 U.S.C. §2088), requiring the CPSC, in consultation with
U.S. Customs and Border Protection (CBP) and other relevant federal agencies, to
identify any consumer product, or other product or substance regulated by any statute
enforced by the CPSC, for which the cost of destruction would normally exceed the
bond amounts under the customs laws and to recommend a bond sufficient to cover
the costs of destroying the product.
The new section further provides for a GAO study to determine the feasibility
of mandating an escrow, proof of insurance, or other security to cover the costs of
destruction of a domestically produced product or substance regulated under any act
enforced by the CPSC or the costs of an effective recall of a domestic or imported
product or substance regulated by the CPSC. The GAO must submit a report on the
results of this study to the appropriate congressional committees within 180 days of
enactment of the CPSIA, including an assessment of whether such requirements
could be implemented and recommendations for implementation.
Annual Reporting Requirement (§209). Section 209 of the CPSIA
amends the annual reporting requirement under CPSA §27(j) (codified at 15 U.S.C.
§2076(j)) to include information on the number and summary of recall orders issued
under CPSA §§12 and 15; a summary of voluntary actions taken by manufacturers
in consultation with the CPSC and with public notice by the CPSC; and an
assessment of such orders and actions. Additionally, within one year of the date of
enactment of the CPSIA, the annual report shall include progress reports and incident
updates with respect to corrective action plans ordered under CPSA §15(d); injury
and death statistics for substantial product hazards under CPSA §15(c); and the
number and type of communications from consumers to the CPSC for each product
for which the CPSC orders corrective action.
Inspection of Certified Proprietary Laboratories (§215(a)). Section
215(a) of the CPSIA amends CPSA §2065(a) (codified at 15 U.S.C. §2065(a)) to
authorize CPSC officers and employees to enter and inspect certified proprietary
Safety of Imported and Exported Products
Export of Recalled and Nonconforming Products (§221). Section 221
of the CPSIA amends CPSA §18 (codified at 15 U.S.C. §2067) to authorize the
CPSC to ban the exportation from the United States of any consumer product that
does not comply with U.S. consumer product safety rules, unless the importing
country permits importation of such product into that country. The CPSC must
notify the importing country of the impending shipment. If the importing country has
not notified the CPSC of its import permission within thirty days of the CPSC notice,
the CPSC may take appropriate action to dispose of the product. These restrictions
do not apply to the exportation of a product refused admission into the United States
and permitted by U.S. customs authorities to be exported in lieu of destruction.
Related conforming amendments are also made to the FFA.
Prior to amendment, CPSA §18 permitted the export of products that do not
comply with U.S. consumer safety rules to other countries, requiring only that the
CPSC had to notify the appropriate agencies in the foreign countries that such
products were being exported to those countries.
Development of Methodology to Identify Unsafe Imports (§222).
Section 222(a and b) of the CPSIA (15 U.S.C. §2066 note) requires the CPSC, within
two years of enactment of the act, to develop a risk assessment methodology to
identify consumer product shipments that are intended for import into the United
States and are likely to include products that violate CPSA §17(a) (15 U.S.C.
§2066(a)) and other import laws enforced by the CPSC. In developing this
methodology, the CPSC is required to
!use, as far as practicable, the International Trade Data System
(ITDS) established under the Tariff Act of 1930 to evaluate and
assess information about shipments of consumer products intended
for import into the United States;
!incorporate this methodology into its information methodology
modernization plan; and
!examine how to share information maintained by the CPSC,
including the public database and substantial product hazard list, for
the purpose of identifying shipments of noncompliant products.
Section 222(d) of the CPSIA requires the CPSC, not later than 180 days of
completion of the risk assessment methodology, to submit a report to the appropriate
congressional committees including
!a plan for implementing the methodology;
!an assessment of whether the CPSC requires additional statutory
authority to implement the methodology;
!the level of appropriations necessary to implement the methodology;
!changes made or to be made to the CPSC memorandum of
understanding with the CBP;
!the status of CPSC access to the Automated Targeting System and
the development of the Automated Targeting system rule; and
!the status of the effectiveness of the International Trade Data System
in enhancing cooperation between the CPSC and CBP to identify
Cooperation with U.S. Customs and Border Protection (§222(c)).
Section 222(c) of the CPSIA (15 U.S.C. §2066 note) requires the CPSC, within one
year of enactment of this act, to develop a plan for sharing information and
coordinating with CBP to improve enforcement and consumer protection. This plan
!the number of CPSC personnel that should be stationed at U.S. ports
of entry to identify shipments of consumer products that violate
import safety laws enforced by the CPSC;
!the nature and extent of cooperation between CPSC and CBP
personnel in identifying such noncompliant shipments;
!the number of CPSC personnel that should be stationed at the
National Targeting Center of CBP, including the nature and extent
of cooperation with the CBP, the responsibilities of the CPSC
personnel, and usefulness of information at the Center in identifying
!the development of rules for the Automated Targeting System and
expedited access of the CPSC to the System; and
!the information and resources necessary for the development,
updating, and effective implementation of the risk assessment
Substantial Product Hazard List and Destruction of Unsafe Imports
(§223). Section 223 of the CPSIA adds a new subsection (j) to CPSA §15 (codified
at 15 U.S.C. §2064(j)) requiring the CPSC to specify by rule, for any consumer
product or class of products, characteristics that constitute a substantial product
hazard, if such characteristics are readily observable and covered by voluntary
standards that have been effective in reducing the risk of injury and experience
substantial compliance. A person adversely affected by such a rule may petition for
judicial review under the CPSA not later than 60 days after promulgation of the rule.
CPSIA §223 amends a couple provisions to require rather than permit certain
actions with regard to imports. CPSA §17(e) (codified at 15 U.S.C. §2066(e)),
formerly permitting CBP to destroy products refused importation into the United
States in lieu of exportation, is amended to require the destruction of such products
unless the CBP permits export in lieu of destruction and such products are exported
within ninety days of export approval. CPSA §17(g) (codified at 15 U.S.C.
§2066(g)), formerly permitting the CPSC, at its discretion, to condition importation
on a manufacturer’s compliance with inspection and recordkeeping requirements, is
amended to require manufacturers of imports to comply with all inspection and
recordkeeping requirements or the products will be refused admission. The CPSC
must advise the customs authorities of who is not in compliance. A related new
subsection (d) of CPSA §16 (codified at 15 U.S.C. §2065(d)) requires the CPSC, by
rule, to condition manufacturing, selling, distributing, or importing any consumer
product or other product on the manufacturer’s compliance with the inspection and
recordkeeping requirements of the CPSA and the related rules.
Study of CPSC Authority Related to Imported Products (§225).
Section 225 of the CPSIA requires GAO, within one year of the enactment of this act,
to conduct a study of the authorities of the CPSA to assess their effectiveness in
preventing the importation of unsafe consumer products and to submit a report of its
findings to the appropriate congressional committees. This report must include
recommendations with respect to plans to prevent such importation; inspection of
foreign manufacturing plants by the CPSC; and a requirement that foreign
manufacturers consent to the jurisdiction of U.S. courts for enforcement actions by
Adoption of a Mandatory All-Terrain Vehicles (ATVs) Safety
Standard (§232). CPSIA §232 adds a new CPSA §42 (15 U.S.C. §2089),
requiring the CPSC to publish in the Federal Register, as a mandatory consumer
product safety standard, the American National Standard for Four Wheel All-Terrain
Vehicles Equipment Configuration and Performance Requirements developed by the
Specialty Vehicle Institute of America (American National Standard
ANSI/SVIA-1-2007). It is unlawful for a manufacturer or distributor to import or
distribute a non-compliant ATV in commerce in the United States or, until a three-
wheel ATV standard is issued, a new three-wheeled ATV. Upon revision of these
standards by the standard-setting organizations, the CPSC must incorporate by a rule
revisions that are related to safe performance and any additional changes necessary
to reduce an unreasonable risk of injury. The CPSC must also consider strengthening
additional ATV safety standards.
Formaldehyde Study (§234). GAO is required to conduct a study on the use
of formaldehyde in the manufacturing of textiles and apparel not later than two years
after the enactment of the CPSIA.
Expedited Judicial Review. CPSIA §236 provides for expedited judicial
review of a consumer product safety rule relating to the identification of substantial
hazards under CPSA §15(j); all-terrain vehicles under CPSA §42; durable infant and
toddler products under CPSIA §104; and mandatory toy safety standards under
CPSIA §104. A person adversely affected by such a rule may petition in the U.S.
Court of Appeals for the District of Columbia Circuit for expedited judicial review
of the rule within 60 days of its promulgation. The judgment of the court affirming
or setting aside the rule is final, subject to review by the U.S. Supreme Court. A rule
to which expedited judicial review applies is not subject to judicial review in
proceedings relating to imported products under CPSA §17 or in civil or criminal
proceedings for enforcement.
Definitions. Among other technical and conforming changes, CPSIA §235
adds definitions for “appropriate congressional committees,” “children’s product,”
and “third-party-logistics provider.” “Appropriate congressional committees” are
defined as the Committee on Energy and Commerce of the House of Representatives
and the Committee on Commerce, Science, and Transportation of the Senate.
“Children’s product” is defined as a consumer product designed or intended
primarily for children 12 years of age or younger. Several factors are to be
considered in determining whether a product is primarily intended for a child 12
years of age or younger, including a manufacturer statement or label about the
intended use of the product; whether the packaging, display, promotion or advertising
of the product represents it as appropriate for use by children 12 years of age or
younger; whether the product is commonly recognized by consumers as being
intended for use by children 12 years of age or younger; and the Age Determination
Guidelines issued by the CPSC in 2002.75
“Third-party logistics provider” is defined as a person who solely receives, holds
or otherwise transports a consumer product in the ordinary course of business but
who does not take title to the product. CPSIA §235 also adds third-party logistics
providers to the list of carriers that are not deemed to be manufacturers, distributors,
or retailers of a consumer product under the CPSA solely by reason of receiving or
transporting a consumer product in the ordinary course of their business and thus are
exempt from the requirements of the CPSA.
Pool and Spa Safety Act Technical Corrections. CPSIA §238 amends76
the Virginia Graeme Baker Pool and Spa Safety Act by adding a definition of
“state” to the act and by providing for the adoption by the CPSC of revisions made
to the pool and spa safety standard by the American Society of Mechanical
Engineers, an independent standard-setting organization (the earlier act had mandated
adoption of the voluntary standard).
Provisions Deleted in the Conference Agreement. The Senate Text
contained several provisions concerning consumer safety product standards or studies
concerning specific consumer products that did not have counterparts in the House
Text and ultimately were not included in the final text of the conference agreement,77
including (section numbers from Senate Text)
!garage door openers (§31);
!carbon monoxide poisoning from portable gas generators and
charcoal briquettes (§32);
!cigarette lighters (§33); and
!equestrian helmets (§41).
Although the House Text did not include such provisions because its sole focus
was reform of the CPSC and its authority and enforcement powers, language in
75 Timothy P. Smith, ed., CPSC, Age Determination Guidelines: Relating Children’s Ages
To Toy Characteristics and Play Behavior (2002).
76 P.L. 110-140, title XIV, 121 Stat. 1492, 1794 (2007).
77 P.L. 110-278, the Children’s Gasoline Burn Prevention Act, 122 Stat. 2602 (2008),
adopted safety standards for child-resistant closures on portable gasoline containers similar
to Senate Text §28.
H.Rept. 110-501 (2007) directed the CPSC to take action concerning single-product
!the promulgation by the CPSC of a final rule on cigarette lighters;
!a public awareness campaign concerning smoke alarms and smoke
!a consideration of a safety standard concerning the warning labels
for the lead content of ceramic food containers or serving ware;
!a consideration of CPSC authority to regulate pet toys that could be
used by children and possible rules concerning the lead content and
use of lead paint in such pet toys;
!a consideration of the tipping hazards of home appliances and
furniture and possible safety standards; and
!a study of injuries and deaths related to toy guns and possible rules
for marking of toys guns distinguishing them from actual firearms.78
The House Committee on Energy and Commerce noted in its report that it
became aware of the potential dangers posed by asbestos in toys late in the legislative
process and would take up these issues in subsequent hearings and legislation.
The Conference Report echoed all the concerns noted above, directing the CPSC
to consider these issues and take action regarding safety standards for such products
and hazards.79 Additionally, the Conference Report recognized nanotechnology as
a new, emerging technology used in the manufacture of consumer products and
expressed its expectation that the CPSC would review the technology and the safety
of its application in consumer products.80
78 H.R. 5471, to require the Consumer Product Safety Commission to prescribe rules
requiring distinctive markings on toy and look-alike firearms (cosponsored by Towns and
79 H.Rept. 110-787 at 67, 75-77 (2008).
80 Id. at 68.