Details of Senate-Passed Consumer Product Safety Legislation

(The House passed its own version of H.R. 4040 on December 19, 2007.)

Although the House and Senate have each passed their own versions of H.R. 4040, it is not yet in effect. Generally, in order for a bill to be implemented, identical versions of that bill must be passed by both the House and Senate and then the bill must be approved (enacted) by the President. As the House and Senate have passed different versions of H.R. 4040, a House-Senate conference may be convened to resolve differences between the two versions.

(See ITT's Online Archives or 03/11/08 news, 08031110, for previous BP summary of the Senate's version of H.R. 4040 based on Senate press releases.)

Highlights of the Senate version of H.R. 4040 (H.R. 4040) are as follows:

Progressive Ban on Children's Products Containing Certain Amounts of Lead

H.R. 4040 would treat any children's product (a consumer product designed or intended¹ for use primarily for children 7 years of age or younger) containing more than a certain amount of lead as a banned hazardous substance under the Federal Hazardous Substances Act (FHSA, 15 U.S.C. 1261 et seq.).

Specifically, a children's product would be considered to contain lead and be treated as a banned hazardous substance if any part of the product contains lead or lead compounds and the lead content of such part (calculated as lead metal) is more than the following amounts in the following timeframes:

1. 03% of the total weight of such part (or such lesser amount as may be established by the CPSC by regulation), 1 year after H.R. 4040's enactment;
2. 01% of the total weight of such part (or if not technologically feasible, such amount lower than 0.03% that the CPSC determines is feasible), 3 years after H.R. 4040's enactment;

Exclusions and exceptions. The CPSC would be able to exclude certain electronic devices, including batteries, from the lead standard by issuing standards to reduce the exposure of and accessibility to lead in such electronics, etc. In addition, H.R. 4040 would provide an exception for inaccessible component parts that are not physically exposed by reason of a sealed covering or casing and do not become physically exposed through reasonably foreseeable use and abuse of the product.

General Lead Paint Standard Would Also Become More Stringent

Within one year of enactment, H.R. 4040 would require the CPSC to amend the general lead paint standard in 16 CFR 1303.1 in order to reduce the maximum lead amount to .009% (from 0.06%) of the weight of the total nonvolatile content of the paint or the weight of the dried paint film.

Safety Rules, Registration, Labeling for Cribs, Highchairs, Strollers, Etc.

H.R. 4040 has the following provisions related to durable infant or toddler products² (for children under age five) such as cribs, highchairs, strollers, etc.:

Safety rules. Not later than 1 year after its enactment, H.R. 4040 would require the CPSC to commence rulemaking and promulgate consumer product safety rules every six months for no fewer than 2 categories of durable infant or toddler products that are substantially the same or more stringent than the voluntary standards for such products.

The CPSC would be required to begin with the products it determines to be of highest priority until the CPSC has promulgated standards for all such product categories. The CPSC would also be required to periodically review and revise such rules to ensure that they provide the highest feasible level of safety for such products.

Consumer registration, recordkeeping, labeling. Not later than 1 year after its enactment, H.R. 4040 would require the CPSC to promulgate a final rule to require manufacturers of such durable infant/toddler products to:

provide consumers with a postage-paid registration form with each such product to be used to facilitate a recall or safety alert regarding that product;

maintain a record of the contact information of consumers who register their ownership of such products; and

permanently place the manufacturer name and contact information, model name and number, and the date of manufacture on each durable infant or toddler product.

Testing, Certification, Labeling, Etc. for Children's Products

H.R. 4040 would require mandatory third party testing and certification of children's products. It also contains provisions related to tracking labels, and Internet and catalogue advertising for children's products.

Mandatory third party testing and certification. H.R. 4040 would require every manufacturer, or its designee, of a children's product (and the private labeler, or its designee, of such product if it bears a private label) subject to a children's product safety standard that is manufactured or imported approximately 90 days after enactment, to:

(1) have the product tested by a third party laboratory³ qualified to perform such tests or testing programs; and (2) issue a certification that specifies the applicable children's product safety standard and certifies that such product meets that standard.

Within one year of H.R. 4040's enactment, the CPSC would be required by rule to, among other things: (i) establish protocols and standards for verifying that products tested by third party laboratories comply with applicable standards under the Consumer Product Safety Act (CPSA) and other Acts enforced by the CPSC; (ii) prescribe standards for accreditation of third party laboratories; (iii) establish requirements for such testing and requirements for periodic audits of third party laboratories; and (iv) establish a program by which manufacturers could label products as compliant with the certification requirements.

Imports to require third-party certification. H.R. 4040 would amend 15 USC 2066(a) to ban the entry of imports of children's products or other products requiring certification under H.R. 4040 that are not accompanied by a third-party certification.

Tracking Labels. Effective 1 year after its enactment, H.R. 4040 would amend 15 USC 2063(a) to require the manufacturer of a children's product (or other consumer product as may be required by CPSC in its discretion after a rulemaking proceeding) to place distinguishing marks on the product and its packaging, to the extent practicable, that would enable the ultimate purchaser to ascertain the manufacturer, production time period, and cohort (including the batch, run number, or other identifying characteristic) of production of the product by reference to those marks.

"Small parts" statement for Internet/catalogue advertising of toys/games. H.R. 4040 would amend 15 USC 1278 to require any advertisement on the Internet, in catalogues, or other advertising that provides a direct means of purchase that is posted by a manufacturer, distributor, private labeler, licensor (or retailer in certain situations) to require a cautionary "small parts" statement for any toy, game, balloon, small ball, or marble intended for use by children approximately 3-6 years of age.

Hazardous Reporting Requirement, Recall/Action Plan Authority Would Expand

H.R. 4040 would expand the substantial hazardous reporting requirement under 15 USC 2064(b) to state that any manufacturer, distributor, or retailer (company) shall immediately inform the CPSC if a consumer product (or other product or substance over which the CPSC has jurisdiction under the CPSA or any other Act - except for certain motor vehicle equipment) that is distributed in commerce fails to comply with any rule or standard promulgated by the CPSC under the CPSA or any other Act.

Recall notices. H.R. 4040 would further amend 15 USC 2064 to state that if the CPSC determines that a product distributed in commerce presents a substantial product hazard, CPSC could order the company to distribute notice of the recall to the public, which would include the product's description, the manufacturer, locations from which it was sold, etc.

Action plans. H.R. 4040 would also amend 15 USC 2064 to allow the CPSC to amend or require amendment of a company's approved action plan if the CPSC finds that it is not effective or if the company is not executing an approved action plan effectively. If the CPSC determines that a company has failed to comply substantially with its obligations under its action plan, it may revoke its approval of the action plan.

Sale/Import/Export of Recalled, Non-Conforming Products

H.R. 4040 would prohibit the sale, import or export of recalled, non-conforming consumer products, as follows:

Prohibition on sale/manufacture/import. H.R. 4040 would amend 15 USC 2068(a) to make it unlawful for any person to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the U.S. any consumer product, or other product or substance that is regulated under the CPSA or any other Act enforced by the CPSC that is:

not in conformity with an applicable consumer product safety standard under the CPSA, or any similar rule under any such other Act;

subject to voluntary corrective action taken by the manufacturer (e.g. recall);

subject to an order issued under section 12 or 15 of the CPSA; or

designated a banned hazardous substance under the FHSA.

Prohibition on export. H.R. 4040 would amend 15 USC 2067 to allow the CPSC to prohibit a person from exporting from the U.S. for purpose of sale any consumer product, or other product or substance that is regulated under the CPSA or any other Act enforced by the CPSC that the CPSC determines is:

not in conformity with an applicable consumer product safety rule under the CPSA or a similar rule under any such other Act;

subject to an order issued under section 12 or 15 of the CPSA or designated as a banned hazardous substance under the FHSA; or

subject to a voluntary corrective action taken by the manufacturer (e.g. recall) that would have been subject to a mandatory corrective action under the CPSA or another Act enforced by the CPSC if voluntary action had not been taken by the manufacturer;

However, H.R. 4040 would allow the export of such products if they meet applicable safety standards established by the importing country.

Increased Staff at Ports of Entry, Training for Product Safety Inspectors

The CPSC would be required to hire at least 50 additional personnel to be assigned to duty stations at U.S. ports of entry, or to inspect overseas production facilities, by October 1, 2010, subject to the availability of appropriations.

Not later than 180 days after H.R. 4040's enactment, the CPSC would be required to develop standards for training product safety inspectors and technical staff employed by

CPSC and submit to Congress a report on such standards.

Targeting, Inspection, Recordkeeping, Destruction of Imported Products

The following are highlights of H.R. 4040's requirements related to the targeting, inspection, recordkeeping, and destruction of violative imports.

Use of ITDS to target shipments with likely safety violations. Not later than 1 year after its enactment, H.R. 4040 would require the CPSC to develop a risk assessment methodology using, as far as practicable, the International Trade Data System (ITDS), to identify shipments of consumer products that are (1) intended for import into the customs territory of the U.S.; and (2) likely to include consumer products that would be refused admission under 15 U.S.C. 2066(a).

Inspection and record-keeping requirements. H.R. 4040 would amend 15 USC 2066(g) to require the CPSC, by rule, to condition the importation of a consumer product on the manufacturer's compliance with the inspection and recordkeeping requirements of 15 USC and the CPSC's rules with respect to such requirements.

Destruction of non-compliant imported products. The Secretary of Homeland Security would be required to ensure the destruction of any imported product refused admission into the customs territory of the U.S. under 15 USC 2066 (unless such product is exported), within 90 days of the date of notice of such refusal or within such additional time as may be permitted under regulations prescribed by either the Secretary or CPSC, as appropriate.

Escrow, Proof of Insurance or Security to Cover Cost of Recall, Holding Product

H.R. 4040 would amend the CPSA (15 USC 2051 et seq.) by adding a provision at the end which states that the CPSC in a rulemaking proceeding could establish procedures to require the posting of an escrow, proof of insurance, or security acceptable to CPSC in an amount sufficient to cover the costs of: (1) an effective recall of the product or substance; or (2) holding the product and the destruction of the product should such action be required by the CPSC under the CPSA or any other Act enforced by the CPSC.

Affected parties could include those who have committed multiple significant violations of the CPSA or any rule or act enforced by the CPSC; a manufacturer or distributor of a category or class of consumer products; or a manufacturer or distributor of any consumer product or any product or substance regulated under any other act enforced by the CPSC.

Highlights of Product-Specific Standards and Rulemakings

The following are highlights of some of the product-specific provisions in the Senate's version of H.R. 4040 (partial list):

Toys. Beginning 60 days after H.R. 4040's enactment, ASTM International Standard F963-07, Consumer Safety Specifications for Toy Safety, as it exists on the date of H.R. 4040's enactment, would be considered to be a consumer product safety rule issued by the CPSC under 15 U.S.C. 2058. H.R. 4040 adds that proposed revisions to the standard would be incorporated in the consumer product safety rule unless the CPSC notifies ASTM International that it has determined the proposed revision does not improve the safety of the covered product.

Toys containing phthalates or phthalate alternatives. Effective January 1, 2009, H.R. 4040 would treat any children's product or child care article that contains a specified phthalate as a banned hazardous substance under the FHSA and the prohibitions contained in section 4 of the FHSA would apply to such products or articles. Certain alternatives to the specified phthalate would also be banned.

All-terrain vehicles (ATVs). Within 90 days after H.R. 4040's enactment, the CPSC would be required to publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four Wheel ATVs Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (ANSI/SVIA-1-2007). The standard would take effect 150 days after it is published, and would make it unlawful for any manufacturer or distributor to import into or distribute in commerce any violative new assembled or unassembled ATV unless certain action plans exist or exceptions apply, etc.

Garage door openers. Notwithstanding 15 U.S.C. 2056 note or any amendment by the American National Standards Institute and Underwriters Laboratories, Inc. of its Standards for Safety-UL 325, all automatic residential garage door operators that directly drive the door in the closing direction that are manufactured more than 6 months after H.R. 4040's enactment would be required to include an external secondary entrapment protection device that does not require contact with a person or object for the garage door to reverse. (See H.R. 4040 for certain exceptions.)

Completion of cigarette lighter rulemaking. No later than 24 months after its enactment, H.R. 4040 would require the CPSC to issue a final rule mandating general safety standards for cigarette lighters in its proceedings entitled, ''Safety Standard for Cigarette Lighters'' for which the CPSC issued an advance notice of proposed rulemaking (ANPR) on April 11, 2005.

Civil and Criminal Penalties Would Increase

The Senate's version of H.R. 4040 would increase civil and criminal penalties as follows:

Maximum civil penalties of $20 million. H.R. 4040 would amend the CPSA, the FHSA, and the Flammable Fabrics Act (FFA) so that the maximum civil penalties for a related series of violations specified in the relevant sections would be $20,000,000 (from $1,250,000) and the maximum for each such violation would be set at $250,000 (from $5,000). It would also add language stating that civil penalties exceeding $10,000,000 should only be imposed when issuing a finding of aggravated circumstances.

(In addition, H.R. 4040 would require the CPSC to initiate a rulemaking within one year after its enactment to establish additional criteria for the imposition of civil penalties under 15 U.S.C. 2069 and any other Act enforced by the CPSC, including factors to be considered in establishing the amount of such penalties, such as repeat violations, the precedential value of prior adjudicated penalties, etc.)

Criminal penalties would include increased imprisonment, etc. H.R. 4040 would amend the relevant sections of the CPSA, the FHSA, and the FFA regarding criminal penalties so that such violations would be punishable by (i) imprisonment for not more than 5 years (from 1 year) for a knowing and willful violation of that section; (ii) a fine determined under 18 USC 3571; or (iii) both.

Criminal penalties could include asset forfeiture. H.R. 4040 would amend 15 USC 2070 by adding a new paragraph to state that in addition to the penalty provided by 15 USC 2070(a), the penalty for a criminal violation of the CPSA or any other Act enforced by the CPSC may include the forfeiture of assets associated with the violation.

¹See H.R. 4040 for certain factors to be considered in determining whether a product is primarily intended for children 7 years of age or younger. Note that the House version defines children's products as those designed or intended primarily for children 12 years of age or younger.)

²"Durable infant or toddler product" means a durable product intended for use by, or that may reasonably be expected to be used by, children under the age of five and includes cribs, high chairs, strollers, walkers, play yards, child gates, swings, bassinets, etc. (See H.R. 4040 for complete list of products.)

³Third party laboratory is defined as a testing laboratory that, among other things, is a non-governmental entity that is not owned, managed, or controlled by the manufacturer or private labeler, except under certain conditions.

(See ITT's Online Archives or 02/26/08 news, 08022610, for BP summary of the Senate announcing that bipartisan agreement had been reached on consumer product safety legislation.

See ITT's Online Archives or 12/18/07 news, 07121820, for Part VII, the final part of BP's series of summaries of S. 2045, which was an earlier piece of Senate CPSC legislation which did not have bipartisan support; with links to previous parts.

See ITT's Online Archives or 01/07/08 news, 08010710, for BP summary of the House's passage of its own version of H.R. 4040.)

Senate-passed version of H.R. 4040 (dated 03/06/08) available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h4040eas.txt.pdf

BP Note

On March 7, 2008, the Senate passed a technical amendment to its version of H.R. 4040 regarding additional criteria for the imposition of civil penalties.