Consumer Product Safety Bill, Expanding Government, Lawsuits

By July 29, 2008Briefly Legal

Much news coverage this morning on the conference agreement on H.R. 4040, the expanded authority for the Consumer Product Safety Commission.

Most of the news reports we’ve seen focus on the safety of toys, the news regulations affecting children’s products, and phthalates — the plastic softener being banned despite the lack of scientific evidence of its dangers. All important, but there’s much, much more done in the 162-page conference report. Politico’s summary is good:

“The Consumer Product Safety Commission has been a neglected agency for too many years, but this legislation puts an end to that neglect,” Senate Commerce, Science and Transportation Committee Chairman Daniel Inouye (D-Hawaii) said in announcing the pact, which could move quickly through Congress before lawmakers go home for the August recess.

The measure includes new whistleblower protection for employees of manufacturers and distributors and creates a searchable databank allowing consumers to check not only product recalls but also other complaints.

Democratic Sen. Mark Pryor, a former Arkansas attorney general who played a major role in managing the debate on the bill, said the legislation spells out more clearly the authority of state attorneys general to enforce CPSC rulings.

We know the conference committee worked hard, made many compromises, tried to strike a balance, etc. But, boy, the whistleblower, the complaint database, and perhaps expanded AGs’ authority are all provisions that will invite a flood of litigation and, in many cases, erroneous and malicious complaints that will raise costs to manufacturers and consumers and do little if anything to improve product safety. 

Sure, trial lawyers will enjoy a new cash flow, but the bad complaints will drown out the good ones. (The database provisions apparently has some additional protections/screening devices written in to improve on the Senate version. We’re especially worried about the whistleblower provisions, for which no one made a compelling argument.)

As for the political reality? Well, here’s the Washington Post’s headline: “Lawmakers Agree to Ban Toxins in Children’s Items.”

And here’s the ranking House Republican on the conference committee, from Politico:

“One of the roles of government is to get between kids and the sorts of hazards that are well beyond parents who aren’t engineers and chemists with laboratories at their disposal,” said Rep. Joe Barton (R-Texas), one of the lead negotiators for the House. “This reauthorization gives the CPSC more teeth and a deeper bite, and makes it dramatically more certain that toys aren’t tested for safety by kids on the living room floor before they’re tested in a lab by experts.”

It’s a big conference report, not yet filed, and interested parties are all reviewing the provisions. More as it develops.

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