CPSIA Update: Amendment Fails, Troubles Continue

By April 3, 2009General

Various developments on the front of the Consumer Product Safety Improvement ACT, and by front, we mean storm front of hurricane-force winds toppling small businesses, thrift stores, libraries and kids who like to ride dirt bikes:

Sen. Jim DeMint (R-SC) offered an amendment to the Senate budget resolution (S. Con. Res. 13) yesterday to try to ease the economic impact of the CPSIA. DeMint’s amendment, S. Amdt. 964, would have created “a deficit-neutral reserve fund to protect small and home businesses from the burdensome and impractical requirements of the Consumer Product Safety Improvement Act of 2008.” The amendment quickly failed, 39-58 (Roll Call vote) on an overwhelmingly partyline vote. Six Republicans voted no (Collins, Cornyn, Gregg, Johanns, McCain, Martinez); Democrats Mark Begich of Arizona, Kay Hagan of North Carolina, Amy Kloubuchar of Minnesota, and Ben Nelson of Nebraska voted yes.

Senator Nelson was interviewed this week by nationally syndicated radio host and lawyer Hugh Hewitt, who also spoke with Senator Lamar Alexander of Tennessee and Senator Jon Kyl of Arizona. He concluded all three interviews by asking about the CPSIA. (“CPSIA Update”)

The Senators expressed concern, but we infer that the issue has yet to reach the top 10 list of Congressional priorities. Thanks in any case to Hewitt, who calls the issue one of his hobby horses, “[Because] nobody else covers it, and I’m aware of what it’s done to off road vehicles and snowmobiles and pens and pencils, and children’s books and children’s shoes. It’s just destruction…”

Keep trying! It’s going to take more than an amendment to mitigate the impact or provide specific exemptions for one class of product (ATVs, books, children’s clothes). Hewitt takes the CPSC and Commissioners Nord and Moore to task for not granting exemptions for ATVs for lead content, but the law really is clear: No exemptions if any lead may be absorbed into the human body. ANY means ZERO.

As yesterday’s vote and sponsorships of other CPSIA-related bills show, this issue has unfortunately taken on some partisan overtones. It should not be partisan, at all. The Consumer Product Safety Improvement Acts passed with overwhelming bipartisan support and just a few nay votes last year, so partisan finger pointing gets no one anywhere. The people being hurt are not constituencies of just one party: There are Republicans and Democrats who read pre-1985 children’s books, shop at Goodwill, operate home-based businesses, ride ATVs, sew children’s clothing, and on and on and on.

Senator Jon Tester, a Democrat, introduced a bill (S. 608) to exempt ATVs because his Montana constituents and their children ride ATVs for recreation or work on the ranch. So did his Montana House counterpart, Rep. Denny Rehberg, a Republican. (H.R. 1587, with 25 cosponsors of both parties.)

A bigger legislative fix is needed. The problem is not the CPSC staff or commissioners, or the fact that three-member commission is one short and so lacks a majority. The commissioners and the staff’s hands are tied by the law, which includes onerous provisions like retroactive applicability, forcing the removal of billions of dollars of inventories that were perfectly safe a year ago. Commissioners are following the law.

So let’s take a step back from the 2008 legislative process that was heavily influenced by the Chinese lead toy outbreak and legitimate public fears that cast too wide of net. The result was legislative overreach, and the answer now is to  Amend the CPSIA.

UPDATE: Walter Olson at Overlawyered has more, “Senate rejects CPSIA reform on budget vote, 39-58.” He also did a better job reading the roll call than we did, so our list of yeas and nays has been corrected above.

The Wall Street Journal editorializes, “Toys R Congress“:

Last year’s Consumer Product Safety Improvement Act was supposed to make children safer by reducing the risk of lead poisoning in toys. Instead, the new law has become a case study in how hastily written regulation can club the economy and reduce consumer safety.

This bill was passed by wide margins in Congress and signed into law by President Bush in the aftermath of the controversy over lead paint in imported toys from China. The new law, which took effect in February, establishes strict limits on lead levels in products for children. Never mind that in 2008 only one American child was injured from lead poisoning from toys.

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