[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
LEGISLATION TO IMPROVE CONSUMER PRODUCT SAFETY FOR CHILDREN
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COMMERCE, TRADE,
AND CONSUMER PROTECTION
OF THE
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
H.R. 2474, H.R. 1699,
H.R. 814, H.R. 1721
__________
JUNE 6, 2007
__________
Serial No. 110-52
Printed for the use of the Committee on Energy and Commerce
energycommerce.house.gov
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COMMITTEE ON ENERGY AND COMMERCE
JOHN D. DINGELL, Michigan, Chairman
HENRY A. WAXMAN, California JOE BARTON, Texas
EDWARD J. MARKEY, Massachusetts Ranking Member
RICK BOUCHER, Virginia RALPH M. HALL, Texas
EDOLPHUS TOWNS, New York J. DENNIS HASTERT, Illinois
FRANK PALLONE, Jr., New Jersey FRED UPTON, Michigan
BART GORDON, Tennessee CLIFF STEARNS, Florida
BOBBY L. RUSH, Illinois NATHAN DEAL, Georgia
ANNA G. ESHOO, California ED WHITFIELD, Kentucky
BART STUPAK, Michigan BARBARA CUBIN, Wyoming
ELIOT L. ENGEL, New York JOHN SHIMKUS, Illinois
ALBERT R. WYNN, Maryland HEATHER WILSON, New Mexico
GENE GREEN, Texas JOHN B. SHADEGG, Arizona
DIANA DeGETTE, Colorado CHARLES W. ``CHIP'' PICKERING,
Vice Chairman Mississippi
LOIS CAPPS, California VITO FOSSELLA, New York
MIKE DOYLE, Pennsylvania STEVE BUYER, Indiana
JANE HARMAN, California GEORGE RADANOVICH, California
TOM ALLEN, Maine JOSEPH R. PITTS, Pennsylvania
JAN SCHAKOWSKY, Illinois MARY BONO, California
HILDA L. SOLIS, California GREG WALDEN, Oregon
CHARLES A. GONZALEZ, Texas LEE TERRY, Nebraska
JAY INSLEE, Washington MIKE FERGUSON, New Jersey
TAMMY BALDWIN, Wisconsin MIKE ROGERS, Michigan
MIKE ROSS, Arkansas SUE WILKINS MYRICK, North Carolina
DARLENE HOOLEY, Oregon JOHN SULLIVAN, Oklahoma
ANTHONY D. WEINER, New York TIM MURPHY, Pennsylvania
JIM MATHESON, Utah MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina MARSHA BLACKBURN, Tennessee
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
______
Professional Staff
Dennis B. Fitzgibbons, Chief of Staff
Gregg A. Rothschild, Chief Counsel
Sharon E. Davis, Chief Clerk
Bud Albright, Minority Staff Director
(ii)
Subcommittee on Commerce, Trade, and Consumer Protection
BOBBY L. RUSH, Illinois, Chairman
JAN SCHAKOWSKY, Illinois CLIFF STEARNS, Florida,
Vice Chairman Ranking Member
G.K. BUTTERFIELD, North Carolina J. DENNIS HASTERT, Illinois
JOHN BARROW, Georgia ED WHITFIELD, Kentucky
BARON P. HILL, Indiana CHARLES W. ``CHIP'' PICKERING,
EDWARD J. MARKEY, Massachusetts Mississippi
RICK BOUCHER, Virginia VITO FOSSELLA, New York
EDOLPHUS TOWNS, New York GEORGE RADANOVICH, California
DIANA DeGETTE, Colorado JOSEPH R. PITTS, Pennsylvania
CHARLES A. GONZALEZ, Texas MARY BONO, California
MIKE ROSS, Arkansas LEE TERRY, Nebraska
DARLENE HOOLEY, Oregon SUE WILKINS MYRICK, North Carolina
ANTHONY D. WEINER, New York MICHAEL C. BURGESS, Texas
JIM MATHESON, Utah MARSHA BLACKBURN, Tennessee
CHARLIE MELANCON, Louisiana JOE BARTON, Texas (ex officio)
JOHN D. DINGELL, Michigan (ex
officio)
C O N T E N T S
----------
Page
Hon. Bobby L. Rush, a Representative in Congress from the State
of Illinois, opening statement................................. 1
Hon. Cliff Stearns, a Representative in Congress from the State
of Florida, opening statement.................................. 3
Hon. Jan Schakowsky, a Representative in Congress from the State
of Illinois, opening statement................................. 5
Hon. Michael C. Burgess, a Representative in Congress from the
State of Texas, opening statement.............................. 6
Hon. Baron P. Hill, a Representative in Congress from the State
of Indiana, opening statement.................................. 7
Hon. Dennis Moore, a Representative in Congress from the State of
Kansas, opening statement...................................... 8
Hon. G.K. Butterfield, a Representative in Congress from the
State of North Carolina, prepared statement.................... 11
H.R. 814, to require the Consumer Product Safety Commission to
issue regulations mandating child-resistant closures on all
portable gasoline containers................................... 12
H.R. 1699, to direct the Consumer Product Safety Commission to
require certain manufacturers to provide consumer product
registration forms to facilitate recalls of durable infant and
toddler products............................................... 15
H.R. 1721, to increase the safety of swimming pools and spas by
requiring the use of proper anti-entrapment drain covers and
pool and spa drainage systems, by establishing a swimming pool
safety grant program administered by the Consumer Product
Safety Commission to encourage States to improve their pool and
spa safety laws and to educate the public about pool and spa
safety, and for other purposes................................. 21
H.R. 2474, to provide for an increased maximum civil penalty for
violations under the Consumer Product Safety Act............... 34
Witnesses
Edmund Mierzwinski, consumer program director, U.S. Public
Interest Research Group, Washington, DC........................ 35
Prepared statement........................................... 37
Sally Greenberg, senior product safety counsel, Consumers Union,
Washington, DC................................................. 42
Prepared statement........................................... 45
Submitted Material
Nancy A. Nord, Acting Chairman, U.S. Consumer Product Safety
Commission, submitted statement................................ 66
Answers to submitted questions............................... 83
Thomas Moore, Commissioner, U.S.Consumer Product Safety
Commission, answers to submitted questions..................... 102
David Asselin, executive director, Council of Manufacturing
Associations for the NAM CPSC Coalition, letter of June 6, 2007
to Messrs. Rush and Stearns.................................... 109
LEGISLATION TO IMPROVE CONSUMER PRODUCT SAFETY FOR CHILDREN, H.R. 2474,
H.R. 1699, H.R. 814, AND H.R. 1721
----------
WEDNESDAY, JUNE 6, 2007
House of Representatives,
Subcommittee on Commerce, Trade,
and Consumer Protection,
Committee on Energy and Commerce,
Washington, DC.
The subcommittee met, pursuant to call, at 10:10 a.m., in
room 2123, Rayburn House Office Building, Hon. Bobby L. Rush
(chairman) presiding.
Present: Representatives Schakowsky, Hill, Stearns,
Whitfield and Burgess.
Also present: Representatives Moore of Kansas, and
Wasserman Schultz.
Staff present: Judith Bailey, Christian Tamotsu Fjeld,
Angela E. Davis, Will Carty, Shannon Weinberg, and Matt
Johnson.
OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Rush. The Subcommittee on Commerce, Trade and Consumer
Protection will come to order.
The subject of our gathering today is to conduct a hearing
on legislation to improve consumer product safety for children:
H.R. 2474, H.R. 1699, H.R. 814, and H.R. 1721.
The Chair recognizes himself for 5 minutes for an opening
statement.
One of the most critical subjects in this subcommittee's
jurisdiction is consumer product safety, especially the safety
of our children and the products that they use. As I noted at
the oversight hearing this subcommittee held last month, I
regard this aspect of our jurisdiction very seriously. I intend
to initiate comprehensive reform of the Nation's children
product safety system during this 110th Congress. We could do
no less for our children. Today's hearing is a first step. We
are considering four bills. Each has a limited and rather
targeted goal. More importantly, all of the bills enjoy
bipartisan support.
H.R. 2474 gives the Consumer Product Safety Commission an
additional tool to enforce product safety by raising the
overall cap on civil penalties that we can impose from the
current $1.83 million to $20 million. This is the same increase
that the Senate passed in 2003 as part of a CPSC
reauthorization bill.
Second, we will consider H.R. 1699, introduced by
Representatives Schakowsky and Upton, and it will require the
CPSC to promulgate regulations to require manufacturers of
defined nursery products--cribs, strollers and the like--to
include postage-paid postcards for consumers to fill out so
they can be notified directly in the event of a product recall.
This bill adds one more tool to accomplish an effective recall
of dangerous products. It is modeled after the car seat recall
system used by the National Highway and Traffic Safety
Administration. With privacy concerns in mind, this bill
specifically prohibits information provided by consumers from
being used for any other purpose.
Third, H.R. 814, introduced by Representatives Moore and
Bachus, requires the CPSC to promulgate regulations to require
child safety resistant caps on portable gasoline cans, cans
sold empty. The current requirements inexplicably do not apply
unless the cans already have the dangerous product inside.
Finally, H.R. 1721, introduced by Representatives Wasserman
Schultz and Wolf, requires the CPSC to promulgate regulations
to require antientrapment drain covers for swimming pools to
prevent a particularly horrible form of drowning. It also
requires the CPSC to establish a grant program for the States
to encourage them to enact laws that mandate greater improved
safety, including laws requiring adequate fencing and other
barriers to entry.
At this time, it is my honor and privilege to acknowledge
the presence in the hearing room of Ms. Nancy Baker. Both Ms.
Baker and her father-in-law, Secretary James Baker, are strong
supporters of the pool and spa bill. Please note that the
terrible tragedy that took the life of their daughter and
granddaughter has been a major inspiration for the reforms set
forth in this bill.
Ms. Baker, please accept our condolences. We intend to make
sure that your tragic loss was not in vain, and we will use
that as a springboard to ensure that we prevent losses in the
future of that kind. We thank you for your presence at this
hearing.
I hope that we can have a full discussion on these bills in
today's hearing. Let me emphasize that I want to work with the
entire subcommittee on a bipartisan basis to make any technical
or other changes and improvements to the bills and then move
quickly to markup. As I said, these four bills are only a first
step. In the months ahead, I hope to conduct a comprehensive
review of the Agency's basic statutory authority and to craft
the necessary reforms. Once again, I hope to do this on a
bipartisan basis with the assistance of the CPSC, consumer
advocates and industry groups. It is time now that we show the
American people that we are serious about our children's
product safety.
Before we begin, let me just take leave to share a word on
our witnesses. We have two who are presenting oral testimony.
We also have written testimony from Ms. Nancy Nord, the Acting
Chairman of the Consumer Product Safety Commission. We invited
the CPSC to send a representative to provide oral testimony at
the hearing. Originally Ms. Nord elected to respond to that
request and to testify in person. Yesterday we decided we
needed to collapse the hearing into one panel because of the
time restraints presented by today's floor consideration of
H.R. 964, the spyware bill, for which I will serve as the
manager. When Ms. Nord learned that we needed her to testify on
the same panel with the other two witnesses, she declined to
appear in person or, alternatively, to send another CPSC
representative.
We regret her decision not to have a CPSC witness at this
hearing. Although, perhaps unusual, we have had to have one-
panel hearings in the past and have mixed government witnesses
with other witnesses such as the March 9 hearing on pretexting.
In the future we will need the full participation of all of
those at the CPSC and its leadership as we work to improve our
Nation's consumer product safety system. I very much hope that
the CPSC will be able to help us promote children's product
safety and to look out for the needs of all of our consumers.
With that, I recognize the ranking member of the
subcommittee, my friend from Florida, Mr. Stearns.
OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. Stearns. Thank you, Mr. Chairman. Let me just thank you
again for holding this hearing. I think I will move right to
your last point.
As all of us know, CPSC Acting Chairwoman Nord was
scheduled to appear today. She is not because the majority
staff would not afford her the opportunity and courtesy of
having the head of a Federal agency testify separately from
nonadministration witnesses. This has been the precedent of
this committee as long as I was chairman and going back with
our staff for 15 to 20 years. So I understand there has been a
misunderstanding of, perhaps, the committee staff of the
majority in trying to increase witness participation because of
time constraints, and I fully take the chairman at his word,
but mixing a chairperson of a major Federal agency has never
been done. It has always been on a separate hearing. We did
that under the Clinton administration when I was in the
majority.
So I think we had a little misunderstanding. I hope, in the
future, that the acting chairwoman will be called back and will
be given the opportunity and afforded the opportunity and
courtesy of having her testify separately from
nonadministration witnesses.
Having said that, it is important that, I think as you
pointed out directly here, we examine these issues on these
four bills. So I commend you for taking the time. We do not
have a lot of time, but it is important that we have a hearing
on this. We both know we have the spyware bill on the floor,
and we are both eager to try and move that forward. That bill
is on a Suspension Calendar today. The Social Security number
protection bill, the pretexting bill and your commitment to
move the data security bill by regular order is all in order,
too. So I commend you for this full agenda.
One thing we also are a little concerned about is finding
one witness that has an interest in all four bills from
gasoline containers to increasing civil fines was extremely
difficult, in addition to finding a witness given the short
holiday workweek last week. For example, if we had 10 bills on
the hearing, would we still only get one witness? What happens
if we had 20 bills? So I think what would be helpful for our
side is if we had an opportunity to have a different witness
comment on each of these four bills instead of one witness to
comment on the four bills.
So, normally, I would assume a legislative hearing would be
held on each individual bill. Absent that, I would hope a
hearing on multiple bills will be structured in a manner that
permits the Republicans an opportunity to present a witness for
each bill if the majority does not invite witnesses who
represent those businesses who may have to operate under the
proposed regulations.
This is an opportunity for freedom of thought, for freedom
of opinion, and for letting the minority have an opportunity to
have some authority on these bills. I hope we can have such an
opportunity in the future so that we can continue as you and I
work in a bipartisan way to develop legislation out of this
committee.
That being said, Mr. Chairman, the legislation before us
today is important, as you mentioned. All of the bills before
us in some way involve the important work on the Consumer
Product Safety Commission. It is no secret that anything
involving children and consumer products tends to stir emotion
in a manner that usually leads our protective nature to shield
our children from harm. After all, that is part of the reason
the CPSC was created in the first place, to provide a mechanism
to ensure that consumer products in the marketplace are safe.
Nobody wants to find that a product they can purchase at the
local store is unsafe and creates a hazard for our young
children, and nothing is more tragic than a life that ends
prematurely, especially when it ends due to a foreseeable
hazard. But our job is to evaluate the legislation on the
merits, regardless of how we feel about the subject matter, and
make any necessary recommendations or changes.
The legislation we examine today addresses four discrete
issues: an increase in civil penalties the CPSC can levy,
mandatory product registration for child nursery items, a
uniform safety cap for gasoline containers, and pool and spa
safety standards. Everyone wants to make sure that our children
are safe, and that unscrupulous people who attempt to evade
laws and standards are punished.
I wholeheartedly support improved safety standards and
punishing wrongdoers, but I have some questions about aspects
of the relative legislation that I hope will be explored during
our question-and-answer period to our witnesses. I intend to
submit written questions directed to the CPSC.
I ask, Mr. Chairman, unanimous consent that the
Commission's responses be added as part of the record here
today.
Mr. Rush. So ordered.
Mr. Stearns. The CPSC has performed an invaluable service
to our country under a rare formula that has proven very
successful. Voluntary standards promulgated and adhered to by
industry can, and usually do serve as a de facto standard. With
the aid of established industry standard-setting bodies, the
workload of the CPSC is effectively delegated in many cases and
obviates the need for formal CPSC rulemaking that would consume
their valuable time and resources that could be spent more
productively elsewhere.
So I look forward to the hearing today, Mr. Chairman, and I
appreciate our being able to expedite this hearing so we can
get our spyware on the floor. Thank you.
Mr. Rush. The Chair now recognizes the gentle lady from
Illinois Ms. Schakowsky for 5 minutes.
OPENING STATEMENT OF HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Ms. Schakowsky. Thank you so much, Chairman Rush, for
holding today's hearing on four important bills that would
protect children from needless harm and everyday dangers. I am
especially grateful that you included my bill, H.R. 1699, the
Danny Keysar Child Product Safety Notification Act, or Danny's
Act.
As we heard at last month's hearing on children's products,
because of lax laws and inadequate protections, dangerous and,
in fact, deadly products are being made and sold for use by
children. It is past due that we give parents the security they
deserve and children the safety they need.
The importance of enacting stronger protections cannot be
overstated. Unintentional injuries are the leading cause of
death among children, and for every such injury that is fatal,
approximately 18 children are hospitalized, and 1,250 are
treated by emergency departments. According to the Consumer
Product Safety Commission--I have in my testimony--who is not
with us here today, an average of 61 children under the age of
5 die each year in incidents associated with nursery products.
Of 318 consumer products recalled by the CPSC in 2006, 111, or
35 percent, were items intended for use by or in the care of
children.
My bill, Danny's Act, would help prevent those needless and
preventable injuries and deaths by making the recall of
children's products more effective. H.R. 1699 would require
that each durable infant and toddler product--and we name
them--high chairs, cribs and strollers, et cetera--come with a
postage-paid recall registration card. This will allow the
manufacturers to directly contact each parent who bought their
product should any problem arise that could put their children
at risk.
Although there is a shocking number of recalled products,
our current recall system is failing. Actual notice of a recall
is dependent on news outlets' picking up the story and
spreading the word. Notification targeted to owners of the
product is rare, and many parents remain unaware of dangers
even when products are recalled. In fact, many families still
have the dangerous products listed in this report in their
homes because they have not happened to turn on the television
at the right time or to read the right newspaper.
My colleague, Representative Fred Upton, and I named our
bill that would help solve this problem the Danny Keysar Child
Product Safety Notification Act because his story is a tragic
example of the inadequacy of our current recall practices.
Danny Keysar, the precious 17-month-old son of Linda Ginzel and
her husband Boaz Keysar, died when the Playskool Travel Lite
portable crib he had been napping in at his babysitter's home
collapsed. The rails of the crib folded into a V-shaped wedge
when he stood up, trapping his neck, and he was strangled to
death. It was May 12th, 1998, 5 years after the CPSC had
ordered it off the shelves because it was so dangerous. Word of
its hazard had not reached Danny's parents, the caregiver with
whom he was staying or the State safety inspector who visited
the home just 8 days before Danny's death. Had Danny's Act been
in effect, there would have been a much greater chance of
saving Danny's life and the lives of six children who have
since died from the Travel Lite.
We know that, while not the one and only answer, recall
registration cards are an inexpensive and effective way of
getting the word out. My bill is modeled after the National
Highway and Transportation Safety Administration's recall
system for car seats. Since NHTSA started requiring car seats
to have registration cards in 1993, the number of families
registering increased by at least tenfold. Recall repair rates
have gone up 56 percent, all for a mere 43 cents per item. This
bill will give families a much greater chance to repair, return
or discard any dangerous products that have made it into the
children's nurseries.
Finally, I would like to express my support for my
colleagues' bills that are being considered. Mr. Rush's bill,
H.R. 2474, would raise the cap on civil penalties for knowingly
violating CPSC requirements so that getting caught violating
safety requirements could not be written off as simply the cost
of doing business. The Children's Gasoline Burn Prevention Act,
which would extend the requirement of childproof caps to apply
to gas cans, could save 1,200 families trips to the emergency
room every year, and the Pool and Spa Safety Act would set a
much-needed antientrapment standard for pool and spa drains
sold in the United States.
I thank you, Mr. Chairman, for today's hearing, and I
regret the lack of presence of the Acting Chair of the Consumer
Product Safety Commission. I hope we can get past standing on
ceremony and deal directly with saving children's lives. I
welcome the witnesses who we have with us today.
Thank you.
Mr. Rush. The Chair now recognizes the gentleman from
Texas, Mr. Burgess, for 5 minutes.
OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF TEXAS
Mr. Burgess. Thank you, Mr. Chairman.
As a parent, physician and Congressman, I firmly believe
our children's safety and security should be our highest
priority. Through over 25 years of practice delivering 3,000
babies in north Texas, I can tell you, before I placed a baby
in the parents' arms, the first question invariably that was
asked is, ``Is the baby healthy? Is the baby safe?''
The safety and security of our children is the first thing
on every parent's mind whether that child is a newborn or is a
grown adult. The internal instinct is to protect all children.
It transcends party lines. I think Republicans and Democrats
alike can agree that our children are our most precious
resource, and we must nurture and protect them. However, one
thing that we do not agree on is how this hearing is being run
today.
Disappointment. The word does not describe how I feel right
now about Chairwoman Nord's absence at this committee. Her
written testimony is very compelling and provides some
excellent points and suggestions as the acting chairwoman of a
Federal agency, and this committee should have given her the
courtesy that she deserved. From my understanding, and I have
not been here that long, there is absolutely no precedent to
put agency chairmen and/or commissioners on a panel with
private-sector witnesses of any kind, and to ask Chairwoman
Nord to do this is disrespectful to her and to the United
States Consumer Public Safety Commission.
Due to the majority's action, this committee is robbed of a
key insight that could have been provided to and that could
have benefited our society. The chairwoman also recently
traveled to China and met with officials about the disturbing
trends of recalls of Chinese products. The American public
deserves to hear her recount of the meetings, and by her not
being here today to discuss this crucial matter in a public
forum, the majority has inadvertently helped to silence the
demand for the safety of consumer products imported from the
People's Republic of China.
Additionally, we are talking about safety and
antientrapment standards in swimming pools. That is a good
thing to be talking about, but right next-door to my district
in Fort Worth, Texas, we lost several young people and an adult
in an ornamental pool in downtown Fort Worth, Texas. I would
have welcomed the opportunity to ask Chairwoman Nord about the
possibility of additional safety standards that would increase
the amount of protection, the regulation and the protection for
people who visit ornamental pools or landscaping pools.
Mr. Chairman, I was so concerned about this that I was
considering offering a motion to have the committee rise. I was
talked off that ledge by the ranking member, so I thank him for
his input, but let us not forget that it is the U.S. Consumer
Product Safety Commission that is tasked with the job of trying
to safeguard our society and our children in particular from
unreasonable risks of injury and death associated with consumer
products.
I do not consider this to be a legitimate hearing to
critically discuss legislation if the agency charged with
enforcement is not present to testify. This committee is not
doing our due diligence to the American public if the Consumer
Product Safety Commission is not welcomed to the table to
discuss the four pieces of legislation on the docket today, and
I will continue to have grave concerns about the applicability
of certain aspects of the legislation before us, and I am going
to have continued concerns about the procedural irregularities
of this hearing. I trust this will not happen again.
I yield back my time.
Mr. Rush. The Chair now recognizes the gentleman from
Indiana Mr. Hill for 5 minutes.
OPENING STATEMENT OF HON. BARON P. HILL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF INDIANA
Mr. Hill. I would like to thank Chairman Rush, Vice Chair
Schakowsky and Ranking Member Stearns for holding this
important hearing today.
Mr. Chairman, in addition to my own testimony, I request
unanimous consent to insert the testimony of Mr. Alan Korn into
the record. Mr. Korn is the director of public policy and
general counsel to Safe Kids Worldwide. Safe Kids Worldwide is
a global network of organizations whose mission is to prevent
accidental injury, childhood injury, a leading killer of
children 14 and under.
Mr. Rush. So ordered.
Mr. Hill. They have played an important role in encouraging
ways to improve the safety of America's children. As the summer
months approach, there will be an unfortunate increase in
incidences throughout the Nation. In recognition of that fact,
June is Home Safety Awareness Month and an appropriate time to
discuss relevant legislation pending before this committee. By
encouraging the awareness of possible dangers within homes
across America, we can attempt to reduce injuries and deaths to
children across the country. The bills we are here to discuss
today promote the ideas of home safety awareness by seeking to
protect America's homes and families.
Mr. Chairman, at our last hearing, I spoke about one bill
in particular that would go a long way towards reducing
incidents of child injury and death, and that is House
Resolution 1721, the Pool and Spa Safety Act. Today I would
like to reiterate my support for this bill and encourage
action.
After this committee's last hearing, I spoke with Nancy
Baker, who lost one of her children because of the absence of
the safe drain covers which this bill addresses. I know that
Nancy is here today, and I want to commend her for her efforts
to address this issue, and when I was on the phone with her, I
talked to her a little bit about her courage. The best way to
say this is not to retreat in sadness over the loss of her
child. She wanted to make sure that other children did not have
the same kind of things happen to them, and I applaud her here
this morning for having the courage to step up and do this, and
I am very impressed with her efforts.
It is clear that children can be spared from this
terrifying situation, and parents can be spared from enduring
that sort of pain. The steps we take here can help to move us
towards that goal.
I am aware that there may be some minor technical concerns
with the Pool and Spa Safety Act; however, I hope that we can
all work together to ensure prompt action on this very
important bill. By doing so, we will realize the goals of Home
Safety Awareness Month and prevent families in the future from
enduring the pain caused by avoidable drowning accidents.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Mr. Rush. The Chair wants to thank the gentleman and now
recognizes the gentleman from Kentucky Mr. Whitfield for 5
minutes of opening statement.
Mr. Whitfield. Mr. Chairman, I will waive my opening
statement.
Mr. Rush. The Chair thanks the gentleman.
Now we will recognize the gentleman from Kansas, Mr. Moore,
who is not a member of the committee, but he is a sponsor of
one of the bills that we are considering today.
Mr. Moore, you are recognized for 5 minutes. Welcome to the
committee.
OPENING STATEMENT OF HON. DENNIS MOORE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF KANSAS
Mr. Moore. Thank you very much, Mr. Chairman and members of
the committee. I really appreciate the opportunity to come
before your committee today to testify in support of H.R. 814,
the Children's Gasoline Burn Prevention Act of 2007.
Mr. Chairman, they say that good things come to those who
wait, but I think children who are the victims of burn injuries
and death and their families would certainly disagree with
that. I have introduced this measure with my friend and
colleague Spencer Bachus of Alabama to allow the CPSC to
require child-resistant gas caps for portable gas containers. I
believe our children have waited too long for this commonsense
consumer protection.
The 1973 Poison Packaging Prevention Act requires items
containing dangerous or poisonous materials, such as pill
bottles and drain openers, be sold with child-resistant caps,
but gasoline cans are exempt from this requirement because they
are sold empty even though they are designed solely to contain
one hazardous, highly flammable liquid and probably the most
dangerous substance in any of our homes, gasoline.
H.R. 814 would simply amend section 9 of the Consumer
Product Safety Act to include child-resistant standards for
closures in all portable gasoline containers. Allowing these
cans to be sold with simple twist-off caps is dangerous and
causes tragic accidents when children come into contact with
them. Unfortunately, these accidents occur all too frequently.
In 2003, the Consumer Product Safety Commission released a
report estimating that, in a single year, about 1,270 children
under the age of 5 were treated in emergency rooms for injuries
resulting from unsecured gas cans either through fires or from
the inhalation of fumes.
When I introduced this bill, I had a press conference at a
fire station in my district, and the firemen were there with
their fire trucks, and the TV cameras were there. And a mother
brought her little 4-year-old boy over, and he was the cutest
little thing, Mr. Chairman, running around in little shorts and
had a short-sleeved shirt on and had a plastic fire hat on, and
he had horrible burns all over his face and his arms and his
legs. These burns could have been prevented.
H.R. 814 has been endorsed by the American Society for
Testing and Materials Task Group of Standards for Flammable
Liquid Containers, the World Burn Foundation, the National
Safety Council, the American Academy of Pediatrics, the
National Fire Protection Association, Public Citizen, and the
Office of the Kansas State Fire Marshal. In addition, Mr.
Chairman, H.R. 814 would not cost the taxpayers one single
penny, and it is strongly bipartisan.
During the 109th Congress, the chairman's Gasoline Burn
Prevention Act garnered 119 cosponsors, Republicans and
Democrats. Mr. Chairman, this should not be about Republicans
and Democrats. This is about our children.
Mr. Chairman, I have seven grandchildren right now, and I
expect my eighth grandchild by noon today, and I am doing this
for my grandchildren and for every child in this country to
protect those children. I was district attorney in my home
county for 12 years, and I worked a whole lot of child abuse
cases to protect children, and I am doing the same thing here
today to protect children from further danger, preventable
danger and from preventable injuries and death.
I want to thank you again, Mr. Chairman, for the
opportunity to appear today before your subcommittee. I hope
that we can work together to enact this simple, commonsense
measure that will protect young children and help put their
parents' minds at ease with regard to gasoline cans stored in
garages, basements and back porches. The Consumer Product
Safety Commission should be and must be allowed to adequately
protect our children.
Thank you, Mr. Chairman.
Mr. Rush. I want to thank the gentleman.
I want to remind the members of the committee that this
subcommittee and this chairman are concerned about doing the
people's business. I have respect for pomp and circumstance,
and I am not disrespectful to any individual, be they members
of the administration, members of this committee or members of
the public. I intend to be respectful.
However, if there is a time restriction, and there are time
restraints, then the priority of this chairman is to make sure
that the people's business gets conducted in a timely manner,
and that was the motivation and is the motivation behind the
actions of the Chair.
Mr. Burgess. A parliamentary inquiry, Mr. Chairman.
The time constraint was the spyware bill; is that correct?
Mr. Rush. The time restraint was the schedule for the House
floor, which we had no control over and which we have no
control over. The Chair does not have any control over the
schedule on the House floor, and the spyware bill is to be up
today, and the Chair is scheduled to manage the spyware bill,
and because of those obligations and conflicts, the Chair
decided to fold the panels into one panel and to move forward
with this hearing.
The Chair did not consider canceling this hearing. The
Chair did not consider moving this hearing to another date or
to another time. The Chair was concerned about doing the
people's business and making it the priority. Hopefully--I
believe sincerely that anyone, whether or not they sat at a
table with someone else or not, that that was not going to be
that much of a big deal.
Mr. Burgess. Mr. Chairman, there is respect for doing the
people's business, and I respect you for doing that, but it
also seems the people's business would be better accomplished
if we heard from all witnesses involved.
Mr. Rush. I really wanted to say that the Acting Chairman
of the Consumer Product Safety Commission was told initially
that she did not have to be here, that she did not have to
appear. Just send a staff member. We wanted a staff member. She
wanted to insert herself, and then she wanted to insert herself
under certain circumstances and certain conditions that the
Chair just could not respond to in an affirmative type of way.
So we have decided to go ahead with the hearing. The
Commissioner or the Acting Chairperson still has the
opportunity to send someone over who is a staff member to
answer the questions and to provide testimony to this
subcommittee. The opportunity is still there for her, and I
would certainly encourage her to come forward.
I believe that the quibbling over who sits where is not a
proper point of inquiry when we are attempting to do important
business that the people elected us to get done, and the Chair
would----
Mr. Burgess. I do not think so. When we have a protocol, we
should follow it.
Mr. Rush. Thank you. We will move to our hearing.
Mr. Stearns. Mr. Chairman, I ask unanimous consent to put
in as part of the record the CPSC coalition letter that both
you and I received.
Mr. Rush. So ordered. Any other statements for the record
will be accepted at this time, as well as copies of the bills
under consideration.
[The prepared statement of Mr. Butterfield and H.R. 814,
1699, 1721, and 2474 follows:]
Prepared Statement of Hon. G. K. Butterfield, a Representative in
Congress from the State of North Carolina
The oversight hearing the Subcommittee on Commerce, Trade,
and Consumer Protection held nearly a month ago on the Consumer
Product Safety Commission (CPSC) shed light on the understaffed
and underfunded conditions at the Commission. It was an
extremely productive hearing that was successful in laying out
a framework for potential improvements. The CPSC is charged
with protecting the public from unreasonable risks of serious
injury or death from thousands of consumer goods. Many of these
products have a direct safety implication for children.
While the safety of all Americans is of critical importance
to lawmakers, the safety of children is of particular interest
for this hearing. The Subcommittee on Commerce, Trade, and
Consumer Protection will discuss several important legislative
initiatives aimed at improving the consumer product safety for
children. Not enough is being done to protect consumers--
particularly children.
H.R. 2474, introduced by Chairman Rush, aims to increase
the maximum civil penalty for violations under the Consumer
Product Safety Act. The current limit the CPSC can assess is
$1.825 million--the bill seeks to increase the limit to $20
million. Unfortunately, the current penalty is so low that some
businesses see it simply as the cost of doing business. So
these companies continue to violate CPSC safety violations,
putting our children at risk.
The Danny Keysar Child Product Safety Notification Act--
H.R. 1699--was introduced by Congresswoman Jan Schakowsky.
Mirroring the National Highway Traffic Safety Administration's
recall for car seats, H.R. 1699 requires everyday nursery
products to come with a prepaid postage registration card for
easy dissemination of recall information. Through this
legislation, if a product is recalled, more consumers and
children will be protected.
The Children's Gasoline Burn Prevention Act--H.R. 814--
would require that the CPSC disseminate standards for portable
gasoline caps for gasoline containers. Over 1,000 children are
treated for burns related to gasoline on an annual basis. By
streamlining these standards far less children will be harmed
by gasoline.
Finally H.R. 1721--the Pool and Spa Safety Act--vastly
increases the safety for consumers who use pools and spas. Over
250 young children drowned in U.S. pools and spas last year.
This is a troubling number considering the total amount is much
higher. The bill requires that all pools and spas sold in the
United States adhere to anti-entrapment standards which are
layers of protection that include barriers and safety vacuum
releases. It also calls for CPSC to establish a grant program
for the States to encourage successful passage of pool and spa
safety laws.
I strongly support these important legislative measures and
urge passage. This is clearly a substantial first step in
ensuring our children are properly protected although more must
be done. The budget for the CPSC needs to be increased and we
as lawmakers should have an increased vigilance for our
country's children.
----------
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Mr. Rush. We have two witnesses now. Will our witnesses
please come forward.
Our first witness this morning is Mr. Edmund Mierzwinski,
who is the Consumer Program Director at U.S. PIRG, the United
States Public Interest Research Group.
Our second witness is Ms. Sally Greenberg, who is the
senior product safety counsel at the Consumers Union.
We want to thank both of the witnesses for appearing before
us, and we would ask that you restrict your opening statements
to 5 minutes. We will first recognize Mr. Mierzwinski.
Mr. Mierzwinski, you are recognized for 5 minutes for
opening testimony.
STATEMENT OF EDMUND MIERZWINSKI, CONSUMER PROGRAM DIRECTOR,
UNITED STATES PUBLIC INTEREST RESEARCH GROUP, WASHINGTON, DC
Mr. Mierzwinski. Thank you very much, Chairman Rush,
Ranking Member Stearns, Vice Chair Schakowsky, and members of
the committee.
The U.S. Public Interest Research Group is pleased to offer
our views on these important child safety matters before the
committee today. To those Members unfamiliar with our work, in
2006, we released our 21st annual toy safety report, building
on the passage of the 1994 Child Safety Protection Act, which
was supported by the Consumer Federation of America, the
Consumers Union, U.S. PIRG, and a number other groups. A number
of toys have been recalled in response to the passage of that
legislation and our subsequent work, and we have participated
in a number of other matters before the Consumer Product Safety
Commission as well over the years.
U.S. PIRG is pleased to support the goals of all four of
the bills before the committee. We strongly support H.R. 1699,
the Danny Keysar Child Product Safety Notification Act. We
strongly support H.R. 2474 to increase civil penalties. We
support the goals of H.R. 1721, the Pool and Spa Safety Act,
that offer suggested amendments to improve the bill. Similarly,
we support H.R. 814, the Gasoline Burn Prevention Act, but
offer suggested amendments to improve the bill.
The legislation from Vice Chair Schakowsky, H.R. 1699,
addresses one of the troubling problems that the CPSC faces,
how to ensure that recalled products are actually tracked down
and recalled. The legislation would call for an improved
product registration card mechanism for finding the recalled
products and for making sure that particularly durable infant
and toddler products, often which are handed down, often which
are kept for many years, have labels on them so that they can
be tracked down if recalled.
In the past, dual-use warranty cards have had a low trust
factor among consumers. Quite frankly, consumers have not
wanted to fill them out because they are afraid of privacy
invasions from marketing practices of the companies. This bill
strikes the appropriate response. It states that the
information that is collected and recall registration cards
cannot be used for secondary purposes. Safety is better served
by protecting privacy as well.
In regard to H.R. 2474, increasing civil penalties, this
legislation sponsored by you, Mr. Chairman, has a simple goal
that everyone should support. No company should have a business
model that has callous disregard for the law's intent to
protect the public from safety hazards. What I am saying is a
company should not game the system by deciding that it is
cheaper to take the chance of paying a small penalty and get
away with not making safe products. You need a big hammer to
hit them over the head with. Your bill would give the CPSC that
big hammer that it needs to hold companies accountable to
protect the safety of the American public.
We support, in addition, H.R. 814, the Children's Gasoline
Burn Prevention Act. As Mr. Moore stated, and as you stated in
your opening remarks, there is a very simple problem. These gas
containers are sold empty; therefore, they do not have to meet
existing childproof standards. We would recommend that the bill
be expanded to include kerosene containers as well as gasoline
containers.
Regarding H.R. 1721, the Pool and Spa Safety Act, this
laudable legislation by Representative Wasserman Schultz and a
number of cosponsors was introduced in response to a number of
horrific tragedies caused by entrapment, entanglement and
eviscerment hazards posed by the tremendous suction power of
pool and spa filters. It takes a three-part approach. It
requires new construction of pools and spas to include drains
that meet strong safety standards. It establishes a program of
grants to States to encourage greater safety, and it enhances
CPSC drowning education programs.
Our only comments on this bill would be that, as you heard
at your last hearing on the Consumer Product Safety Commission,
it is the ``little agency that could.'' It is the little agency
with a $63 million budget and only 400 professional staff.
We would simply encourage you to clarify that the purpose
of the grant program is to expand money to the CPSC. If
possible, you should include additional new money for someone
to run the grant program. I note that in Acting Chairwoman
Nord's testimony that she suggests outsourcing the program with
the CPSC's getting its costs reimbursed, but that is our
primary concern, the agency's new project, and it has reduced
the priority of drowning programs in the last several years
from a strategic goal to merely a program, so it needs more
people to handle this important new program, and I hope the
committee can address that issue.
I have a number of other ideas about improving the Consumer
Product Safety Commission, but since this is not an oversight
hearing, I have left them in my written testimony.
Thank you.
Mr. Rush. I want to thank you.
[The prepared statement of Mr. Mierzwinski follows:]
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Mr. Rush. Our next witness is Ms. Sally Greenberg, who is
the senior product safety counsel at the Consumers Union.
Welcome, Ms. Greenberg. You are recognized for 5 minutes.
STATEMENT OF SALLY GREENBERG, SENIOR PRODUCT SAFETY COUNSEL,
CONSUMERS UNION, WASHINGTON, DC
Ms. Greenberg. Thank you, Chairman Rush, and thank you,
Ranking Member Stearns and, of course, Vice Chair Schakowsky,
who has been such a great leader on product safety for kids
particularly.
My name is Sally Greenberg. I am with Consumers Union. I
really appreciate--we really appreciate--the opportunity to be
here this morning. We support all four bills that are before
the subcommittee.
Let me start with H.R. 2474, which is a bill to raise the
maximum penalty for violations of the Consumer Product Safety
Act. I applaud the Chairman for introducing this important
bill, and I particularly applaud him for his earlier stated
commitment to doing comprehensive reform of the Consumer
Product Safety Commission, because that has been a long time in
coming, and we look forward to working with you on those
reforms.
The CPSC is currently empowered to impose fines on
companies for failing to report safety hazards, but the amount
is capped at $1.8 million. We think the cap hampers CPSC's
ability to adequately enforce the reporting requirements under
15(b) particularly, and we support raising the cap to $20
million. This increase in potential fines would, we believe, be
a strong deterrent for any company that might otherwise be
inclined to flout the law. For some companies, the current cap
on fines is so low that the threat of a fine will not make a
dent in the company's bottom line, and I am thinking
particularly about the $750,000 fine that the CPSC imposed on
Wal-Mart a few years back for failing to report safety hazards
with fitness machines. The calculation is that the $750,000
fine at Wal-Mart was the equivalent of about 1 minute and 33
seconds of cash register receipts on that corporation.
I also want to bring to the subcommittee's attention that,
in 2002, Commissioner Moore, who was then acting chairman of
the CPSC, told an audience at a product safety conference that
perhaps some companies would be less likely to stall--he was
recommending that the cap be lifted entirely and said that
perhaps some companies would be less likely to stall our agency
by putting off reporting hazardous products if we had penalties
that were more commensurate with the harm that they caused.
CPSC's Web site is replete with examples of companies that
have numerous reports about products that injure consumers that
simply did not report those incidents to the CPSC, and I have
listed four examples of those incidents where you have
companies that had plenty of time and plenty of information,
and they just did not get around to reporting it to the CPSC.
Our greatest concern is child product manufacturers in
particular, and there is a long history of those manufacturers
not reporting problems with products that could have prevented
injuries to children, and the fine level needs to be at a point
where it serves as a sufficient deterrent to those kinds of
decisionmakers within companies who are considering not
reporting to the agency. So we fully support 2474, and thank
the chairman for introducing it.
Let me move on to H.R. 1699, the Danny Keysar Child Product
Safety Notification Act. We strongly support this bill. It
would require product registration cards to be included in
durable children's products. We applaud Congresswoman
Schakowsky and Congressman Fred Upton for their leadership in
introducing the bill.
According to CPSC's statistics, an estimated 59,800
children every year under 5 years old are treated in hospital
emergency rooms for injuries associated with nursery products.
We have a very ineffective recall system today that poses
serious problems for children's products. Moreover, there is a
long-standing pattern of children's products being a large
proportion of recalls. It tends to be between one-third and
one-half of all products recalled every year that are
children's products.
The term ``recalled products'' suggests that a product has
been successfully returned, repaired or replaced. In fact, that
is rarely the case. Most products that are recalled remain in
the marketplace and in consumers' homes, and they threaten the
safety of those consumers who use them. Estimates on successful
rates of recall for the average product falls somewhere between
10 and 30 percent, so we need much more effective means for
informing parents when a product that their child is using
poses a safety hazard and has been recalled.
Seventeen-month-old Danny Keysar, as we have heard from
Congresswoman Schakowsky, died using a recalled product--that
is just tragic--but the information does not get out there. We
know this, and we have to do better. That is why H.R. 1699 is
so important, the registration card system called for in the
bill. It is not a perfect system. There will not be a perfect
system. It will represent, I think, a great improvement on what
we have today, which is really nothing except using the media
to get out to people, and that misses so many.
I want to use an example of the Toro Corporation, and I
also want to note that the CPSC had some very interesting
hearings themselves several years back on recall effectiveness,
and they brought in a bunch of companies who had done some very
interesting work. I can talk about that later because I want to
address the other bills, but there are many innovative
approaches to this, and the industry always comes back with,
``Well, it does not work, and people do not really pay
attention.'' that is really not accurate. Toro Corporation had
a 75 to 80 percent return on their recall registration cards
because they did it the right way, and they made these cards
very user friendly, and they were not invading people's
privacy, and that worked for consumers.
Others have already talked about or had already talked
about the car seat manufacturer being the model. I think that
is a good model. I think it is working, and we should use that
for moving forward on H.R. 1699.
As for H.R. 814, the Children's Gasoline Burn Prevention
Act, we are fully supportive of that. We applaud Congressman
Moore and Congressman Bachus for introducing the legislation.
Those tragedies that happened in Congressman Moore's district
are so preventable with this very simple safety measure. Our
credo at Consumers Union is if you have a product and it proves
defective or dangerous, and you can fix it for a reasonable
cost, and you do not affect the utility of the product, you
ought to move forward very quickly to put those fixes in place.
I think that is what H.R. 814 does. We have some statistics in
my written testimony.
Am I overtime? Oh, OK. I apologize, Mr. Chairman.
Just one last point on the Pool and Spa Safety Act.
In my written testimony, we have outlined why we support
the bill and some of the concerns that we have about how it is
going to be implemented, but as I said in my initial statement,
we fully support all legislation and look forward to your
questions.
Mr. Rush. Thank you very much.
[The prepared statement of Ms. Greenberg follows:]
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Mr. Rush. The Chair recognizes himself for 5 minutes of
questioning.
Ms. Greenberg, do you know whether other similar agencies
have overall caps on the amount of civil penalties that they
can assess? Are the CPSC's limitations rare in this instance?
Ms. Greenberg. I do know that the FTC, for example, does
not have limits on--it does not cap fines that the agency can
impose on those who violate the FTC statute. I do not believe
that NHTSA has a cap on fines that it can impose, and I think
that the general concept of having a cap on fines for companies
who violate a law just sort of goes against, I think, common
sense. You really do not want companies--as Ed Mierzwinski just
said, you do not want companies figuring that this is the cost
of doing business, not reporting something.
Section 15(b) is so important to CPSC because it really
acts as its early warning system. So I think anything we can do
to encourage companies and also to deter companies for failing
to report is really important.
Mr. Rush. Mr. Moore has, as you indicate in your testimony,
indicated that he is opposed to caps at all. He wants to
eliminate them altogether; is that right? I think, in your
written testimony, the Acting Chairman is not in favor of the
caps of our bill.
Do you have any knowledge about whether or not the CPSC--
what their response is to the overall bill?
Ms. Greenberg. Raising the caps? Well, I remember former
Chairman Stratton's commenting on caps, and I think one of his
concerns was it would lead to greater litigation, and I am not
sure I completely understand that argument.
I would think that the leadership officials at the CPSC
would want every possible power that they can muster and that
Congress would give them to make sure that companies are
complying with their laws. So it surprised me a little bit that
the former chairman of the Commission did not want that
additional power to ensure that companies were reporting for
this very important early warning system that CPSC has.
Otherwise, I have not heard compelling arguments about why that
cap even exists and why it should not be either raised or
simply there ought to be no cap. I think it impairs the
effectiveness of the CPSC.
Mr. Rush. Thank you.
Mr. Mierzwinski, according to the Acting Chairman's written
testimony, Ms. Nord's written testimony, she states that the
agency would need more resources to implement all of the bills
if they became law, all of the bills that we are considering
today.
Please state what your opinion is on the level of
additional CPSC resources that might be required to implement
these bills.
Mr. Mierzwinski. Well, Mr. Chairman, I think that the
matter of the CPSC reauthorization has not been carried out
since, I believe, 1990, and the matters have not been
adequately reviewed on an overall basis, but for these
particular bills. I think that what we are looking at is that
the agency has had a diminishing number of full-time
equivalents; its budget has been relatively flat over the
years, and we spend very little money on this agency that
regulates 15,000 separate products. We are asking it to conduct
a couple of rulemakings to initiate a grant-making process. It
would seem that it would need at least several new staffing
slots just to deal with these bills.
I think the money is probably modest, but I would hope that
the committee can move these bills and then also move
separately oversight and possibly a reauthorization that
results in increasing the resources of the Commission in the
long run. They may be able to juggle things around with
existing resources. Although, I do note that, on the pool bill,
I think it would be useful to have an additional person to
administer the grant program, and we probably would agree with
them on that.
Mr. Rush. Thank you very much.
The Chair now recognizes the ranking member, Mr. Stearns,
for 5 minutes.
Mr. Stearns. Thank you, Mr. Chairman.
I think, when you have bills like this, I think, as a
parent of three boys and seeing them around swimming pools when
they were young, and also experiencing having the gas can in
the garage and the possibility they could open it themselves,
it makes you concerned as a parent, and I am very sympathetic.
Also, though, as a small businessman, I look at the
economic cost/benefit analysis for some of this, and I was
struck that, when Dennis Moore was over here talking about his
particular bill in dealing with the caps on the gasoline cans,
he mentioned that 1,200 children were in hospitals because of
it. He did not indicate how many died. I understand from staff,
roughly there are 80 million children in the United States. So
as to the cost/benefit analysis, whatever you do, you are
talking about, because 1,200 ended up in the hospital, it is
0.000015 of the 80 million, so it is a very small significant.
Now, one child ending up in a hospital is a tragedy, and a
death is absolutely unnecessary, and I think what is being
proposed here is not unreasonable, but the question I have for
both of you is do you ever take into account the cost/benefit
analysis here?
You are dealing with the Pool and Spa Safety Act. As I
understand it, we have had 300 children who were killed, and
this is out of 80 million. So do you ever consider the cost/
benefit analysis for--is there one point where you would say,
``Is 0.000015 such a small percent that it may be not
significant in the totality in looking at this issue dealing
with caps on gasoline cans?''
Ms. Greenberg.
Ms. Greenberg. I think I would probably go back to our sort
of working philosophy as a consumer organization and an
organization that cares very deeply about safety.
When the Consumer Product Safety Commission was set up,
there had been a congressional study looking at all kinds of
terrible injuries that happened to children, and----
Mr. Stearns. And you take into account the overall
percentages when you look at this, or you just look at the
deaths and the incidents?
Ms. Greenberg. Well, what we look at is can a product be--
--
Mr. Stearns. Improved regardless of the statistics?
Ms. Greenberg. Can a product--well, you know, 1,200 kids in
the hospital is--maybe we evaluate that differently.
Mr. Stearns. No. I think it is terrible, but I am saying,
relative to 80 million children, it is a very small percentage.
Ms. Greenberg. Yes.
Mr. Stearns. So you are saying you do take the statistics
into account?
Ms. Greenberg. What we try to do is look at how much are
fixed costs, and if it can be done for a reasonable amount----
Mr. Stearns. Go ahead and do it.
Ms. Greenberg. We are talking about a gas cap. It is a
change in design.
Mr. Stearns. Right. I understand. I think that is a good
example. I think a gas can can be taken care of much like you
have got vitamins or you have medicine that has that cap on it
so that it is childproof. I agree.
Do you agree with her? Is that pretty much----
Mr. Mierzwinski. Mr. Stearns, I would agree with her, but I
would have to say the cost/benefit analysis is only a tool. I
think it can be easily overused in measuring the value of a
consumer's life versus the need for a health and safety
standard. I do not know that it is necessarily the right
approach in all circumstances.
Mr. Stearns. But in lots of these cases, the parents of
these children are delinquent, too. We know that the child ends
up in the hospital or there is death, but there is some
culpability for the parents in not supervising their children.
Wouldn't you agree on that?
Ms. Greenberg. Well, again, when CPSC was set up, Congress,
the panel which is a bipartisan panel that set the Consumer
Product Safety Commission up, was very focused on making
products safer, not on parents' behavior, because it isn't a
child's fault if a parent's attention has waned or they have
been called off to deal with another problem with a child. We
deal with this all the time in the area of product safety, this
notion of product misuse or parental negligence or whatever.
Mr. Stearns. So you don't take that much into account.
Ms. Greenberg. If we did, there would be a lot more injured
or dead children today.
Mr. Stearns. In the areas of increasing civil fines, this
letter I put into the record for the National Association of
Manufacturers points out that CPSC has never even gone up to
the $1.8 million in fine. And now we are asking for it to go up
to $20 million in fine. So each of the instances you cite does
not amount to the full penalty authorized.
What information do you have that a $1.825 million civil
penalty is not sufficient when there is no evidence they have
ever used it and now you want to go up by 1,000 percent
supposedly? So the question is why go up so much when the CPSC
has not even used the amount that they have as a penalty?
Ms. Greenberg. We didn't make the decisions that CPSC made
to impose fines. In my view, in some of the cases much higher
fines probably were warranted. The powers that be at the CPSC
perhaps didn't agree with our philosophy on that.
Mr. Stearns. So you would go up to $20 million.
Ms. Greenberg. I don't want to commit to a specific number.
What I do think is important is that the Commission, the CPSC,
have the ability to impose a fine that is not specifically set
out. The $20 million fine gives them more leeway to impose
higher fines. But I don't think when you see the litany of
companies that fail to report, I don't think the fines are
serving as an adequate deterrent to nonreporting. We see many,
many examples of companies that do not come forward and report.
So I personally believe that there ought be no cap. I don't
think that companies should have an opportunity to make a cost/
benefit analysis about maybe we won't report because we are not
likely to get fined the full amount. I don't think that makes
sense for any Federal agency to have to work under that
constraint. So that would be my preference. But given that we
have a $1.825 million, I think $20 million fine is a much
bigger threat.
Mr. Stearns. Thank you, Mr. Chairman. I think she is
indicating that she would go up to $100 million. You are saying
that if there is no ceiling, in your opinion you could go up to
$500 million. So thank you, Mr. Chairman.
Mr. Rush. The Chair recognizes the gentle lady from
Illinois Ms. Schakowsky for 5 minutes.
Ms. Schakowsky. Thank you, Mr. Chairman.
I want to talk a little bit about this cost/benefit ratio.
When we start getting into 1,200 children out of 80 million
children, that is really not the question. It is 1,200 children
versus how much would it cost a company to make a small and
responsible change in their product. And if you want to just
get into dollar figures, how much does it cost to care for a
severely burned child in a hospital, for how long, throughout
their whole life, it is just kind of ridiculous when we are
talking about a very small cost to improve a product that can
save 1,200 very precious children. And so I think the argument
is a little bit specious, especially, as you said, the
philosophy is let's look at what it would really cost to
improve a product.
And so I want to talk a little bit about my bill on the
recall registration. I have looked at Acting Chairman Nord's
testimony, and she points out a petition that was acted on in
2001 and making recall registration cards, and they found that
this wasn't useful. Well, for one thing, they were talking
about doing it for all children's products.
I want to make it very clear that in my bill we are
specifically listing the products, and they are the durable
children's products, as you pointed out, Ms. Greenberg, that
stay in the home for a long time or often passed on to the next
generation of children. And so we are talking about very
specific products.
But the other thing that I wanted to ask you both about is
that they say that these cards are ignored and returned. And I
want to once again get on the record, if you would, the
refutation of that argument, because while no one is claiming
that this is a perfect mechanism and that it will result in
every consumer knowing about the recall, is it not true that
there is evidence of significant improvement? And if I could
start with you, Ms. Greenberg, and then go to Mr. Mierzwinski.
Ms. Greenberg. Significant improvement in----
Ms. Schakowsky. The number of consumers that then know
about the product recall.
Ms. Greenberg. Your bill very clearly lays out what the
card should state. As my colleague pointed out, people are very
cynical about these recall cards, or these cards in general,
not the recall cards, but these warranty cards that you get,
because they ask you all sorts of personal questions, and so
people don't return them. It is not the model we should be
looking at.
With NHTSA, as you pointed out, the number of cards
returned, NHTSA requires every manufacturer of a car seat to
include a card, and the card return rate is 10 times what it
was before the regulation went into place. And NHTSA is very
specific in its regulation about what the card should say, what
kind of information it is asking for and what it is not asking
for. And it is asking for information in case of a recall. I
have seen these cards. I have sent them in. I bought car seats.
And they are very good. They say, mail this card now. They are
postage paid. They do everything short of walking the consumer
to the mailbox. They make it very easy. And now with cell phone
portability, number portability, people have cell phone numbers
that stay with them presumably for life. So there are ways to
get in touch with consumers. And I think these cards have
proven their effectiveness.
We know there are companies like Toro which has found them
to be very effective when done right. They ask specific
questions. They are not a marketing effort. They are not
perfect. There is always going to be a percentage of consumers
who won't return them. But it gets us many steps ahead of where
we are today.
And the Danny Keysar situation where a kid is confronting
or parents are confronting a product that has been recalled,
and they didn't know about it, and the kid is injured or killed
is just an untenable, terrible situation, and we should do
everything, I think, to try to make sure that doesn't happen
again. And this is a big step forward.
Mr. Mierzwinski. Thank you, Representative. And I would
concur with Ms. Greenberg that the NHTSA situation offers a lot
of guidance to the CPSC. In addition to their successful card
programs, think about their successful marketing programs:
Buckle Up, Kids in the Back. These are programs that work if we
had a card that we trusted and the CPSC consumer groups would
get behind it, and we could help you and help the CPSC make it
work.
Mr. Rush. The gentle lady's time is up.
The Chair now recognizes the gentleman from Texas Dr.
Burgess.
Mr. Burgess. Thank you, Mr. Chairman.
Staying on the concept of the card for just a minute, has
there been any study to look at if the return rate for cards is
increased if it is coupled with a rebate or something of value
that would be returned to the consumer if they fill out the
card?
Ms. Greenberg. Congressman, I think I can respond to that,
not with respect to the NHTSA situation, because they don't
require car manufacturers to give a rebate or reward for
returning the card, but some companies have done that, and that
has been a successful strategy.
As I said, the CPSC held a couple of hearings a few years
ago on recall effectiveness, and what you had is a bunch of
companies coming forward and describing some very interesting
and innovative ways to improve the recall effectiveness. I wish
the CPSC had gone a few steps further and put some of those in
place, but be that as it may, what they found is that when they
offered a reward or a rebate, yes, consumers responded more
positively.
Mr. Burgess. Again, the CPSC isn't here today to ask them.
Kids are growing so fast, so products and toys that are bought
for the nursery, a child outgrows them before they use up their
shelf life. And if they have got a younger sibling on the way,
that is a good thing.
I have never done this myself, but people in my family are
great students of a thing on the Internet called eBay. What
happens when someone sells their product on eBay; are they
obligated to provide that follow-on information as far as the
mailing card is concerned?
Ms. Greenberg. Well, right now, since we don't--maybe with
car seats it happens. I haven't seen it. But since we don't
have product registration cards now, it is hard to say whether
we would be able to incorporate that into eBay.
Mr. Burgess. So a crib or a beach ball or a baseball or
something, a small object that a child could ingest, if these
things are sold on eBay, there is really no requirement for the
seller to provide that follow-on information?
Ms. Greenberg. No, Congressman, but I think that is an
interesting idea.
Mr. Burgess. If we increase--and we will get to the cap in
just a minute--but if we increase the cap, of course I can see
a company might say I am going to offer a rebate thinking this
cap scares me to death because it is up to $20 million; but
then is the company that sold the beach ball or the baseball
glove or whatever, is the company still going to be liable when
that product is resold on eBay after the child outgrows its
usefulness?
Ms. Greenberg. The cap is for reporting incidents related
to product safety. It is section 15(b) of the Consumer Product
Safety Act, and that is simply a requirement that companies
report when they hear about incidents. So I don't think it
would relate specifically to your eBay scenario.
Mr. Burgess. At the present time we really don't have a
good way to track resales at garage sales, even hand-me-downs
within families, for these products.
Ms. Greenberg. I, too, wish Commissioner Nord was here,
because I know the CPSC is doing some interesting, innovative
work on that.
Mr. Burgess. Since I am so new at this, talk to me for just
a minute about the fines. Right now how is that? And either of
you, please feel free to answer this. Right now the fine is
$1.875 million or thereabouts. How is that money allocated? If
a company is fined $1 million, does that money all go to CPSC,
does it go to the general fund, does the Department of Justice
get it, does it go to the victim; what happens to the dollars?
Ms. Greenberg. The U.S. Treasury. It goes into the general
fund. It goes into the U.S. Treasury. It doesn't go into CPSC's
budget, if that is what you are asking.
Mr. Burgess. How much is spent just in the course of
litigation to recover those monies?
Ms. Greenberg. I don't have a strong sense of the
litigation costs for CPSC, but they don't litigate very often.
I do know that.
Mr. Burgess. Is there a danger--with a vastly expanding
cap, is there a danger of an unwillingness to settle on a fine
because now they are at risk for such a higher settlement that
more will go to litigation?
Ms. Greenberg. That is the argument that has been certainly
put forward.
Ed, did you want to respond to that?
Mr. Mierzwinski. I would just say, Congressman, that I
think that argument is a red herring being put forward by
companies that are regularly before the CPSC. The way I think
that this system works today is that companies do their own, if
you will, benefit/cost analysis, and they say the maximum fine
is $1.83 million. Wal-Mart only paid $750,000.
Mr. Burgess. On that issue, is there a danger then for MOFA
reporting. We expand that fine a whole bunch, and is the CPSC
just going to be flooded with data from companies that don't
want to be caught in the situation of not having reported their
problems?
Ms. Greenberg. Well, I think it would be useful to look at
what other agencies have experienced on this issue of fines and
caps on fines.
Mr. Burgess. If the Commissioner were here, we could ask.
Ms. Greenberg. I don't think that has been a problem in
other Federal agencies, the fact there isn't a cap on fines.
Mr. Burgess. We should ask the question before we enter
into that, so it would be a fair question to ask.
Mr. Chairman, you have been indulgent, and I know we have
got to get on to other things. I yield back.
Mr. Rush. Thank you, gentleman.
The Chair now recognize the coauthor of H.R. 1721, Ms.
Wasserman Schultz of Florida. She is not a member of the
committee, but the Chair recognizes her for 5 minutes for
questions.
Ms. Wasserman Schultz. Thank you very much, Mr. Chairman.
And, Mr. Chairman, I want to thank you and Ranking Member
Stearns for your support of this issue and for including this
legislation in your hearing today.
I also want to, although I understand she has already been
recognized, recognize Nancy Baker, who has been a tireless
advocate on behalf of this legislation, which is named after
her daughter Graeme Baker, who drowned in a suction drain
entrapment accident; and Congressmen Hill, Matheson and Weiner,
who are members of the subcommittee that are cosponsors of the
bill.
I actually have a question for Ms. Greenberg. I noted in
your testimony your support for pool alarms and their possible
inclusion in this legislation. Every drowning expert I have
worked with over the last 10 years has said that pool alarms
are not the best first line of defense because they only
address the problem after the child has already fallen into the
pool.
Now, since you note in your testimony that pool alarms
sometimes do, sometimes don't meet the national safety
standards, the ASTM guidelines, and quite honestly, although I
think they probably are at about 85 decibels, which is very,
very loud, in the event that you are standing in the laundry
room dealing with the practical reality of what happens when
supervision lapses, if someone is standing in the laundry room
and their dryer and washing machine are going, and the child
falls in the pool, and the pool alarm goes off and they don't
hear it, then we haven't addressed the problem. So can you
speak to your support for pool alarms, because I sponsored the
law in Florida which does not include pool alarms, and I remain
completely unconvinced that that is wise.
Ms. Greenberg. I confess that I am not an expert in pool
alarms. I included it because Consumers Union tested pool
alarms. I think we have got a series of safety devices that are
all imperfect. Pool alarms is one of them. Hopefully you are
not in the laundry room. It increases, I think, a parent's or a
caregiver's opportunity to be notified if a child gets into the
water and you don't want them there.
So it is certainly not a perfect solution. We said in our
testimony, as you noted, that the best strategy for preventing
kids getting into pools without parental supervision is to have
a fence around the pool, but we know we can't make that happen
on a Federal level. That has to be done on the State level.
That is why your legislation is so good. It encourages States
to do that.
But I have a colleague with me who has worked extensively
on pool alarms, and I would be glad to answer any questions on
the record or ask Don Mace, who is here from our Yonkers
office, who is an engineer and worked on standards with pool
alarms and worked on the testing that we did for Consumers
Union. Maybe we can talk with you later.
Ms. Wasserman Schultz. If you can follow up with me,
because the chairman has extended a courtesy to me as a
nonmember of the committee, and I would appreciate it.
And also as a member of the Appropriations Committee, I
want to tell you both that I fully intend to pursue an
appropriation for both the grant program and the education
program if this legislation hopefully becomes law, and really
have been an advocate on the Appropriations Committee of
increasing the CPSC's budget. We actually did that in the
Appropriations Subcommittee on Financial Services yesterday. So
I sincerely hope--and you will have my full advocacy to make
sure that it is not absorbed into the existing budget of the
CPSC.
So, Mr. Chairman, thank you for the courtesy. I appreciate
it. I yield back the balance of my time.
Mr. Rush. Thank you very much.
That concludes the testimony of the witnesses, and that
concludes the hearing. Again, I want to thank the witnesses for
coming forward. I certainly want to reiterate our condolences
and also our compassion and our thanks to Ms. Baker for
attending today. And I want to remind members of the
subcommittee that the record is open for 30 days for additional
testimony and questions, and submit the questions in writing to
whomever.
Thank you so much. Hearing no objections, the subcommittee
is adjourned.
[Whereupon, at 11:30 a.m., the subcommittee was adjourned.]
[Material submitted for inclusion in the record follows:]
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Statement of David Asselin
The NAM Coalition on CPSC (Coalition) represents
manufacturers, distributors, importers or retailers of consumer
products. All of the members of our Coalition are committed to
ensuring the safety of consumer products sold in this country.
The Coalition would appreciate your including this letter in
the hearing record, and I will be sending the names of
Coalition members wishing to be added as cosignatories.
The Coalition supports the important mission of the CPSC.
The marketplace needs to be free of unsafe consumer products
that could pose a risk of injury to consumers, particularly to
our most valuable population, our children. Over the years, the
agency's budget has not grown as fast as other regulatory
agencies with comparable authority. CPSC has compensated by
taking measures to ensure it uses its resources efficiently,
just as so many manufacturers have had to do in recent years.
We support increased funding for the CPSC to increase
import surveillance and compliance, upgrade technology,
laboratory renovation and for bolstering the staff,
particularly in technical areas and where retirements are
impacting the Commission's mission. We believe that the CPSC
has sufficient authority to carry out its critical mission if
it is properly resourced.
The Coalition understands that your subcommittee will hold
a hearing June 6th on several bills concerning the Consumer
Product Safety Commission. Two of these bills, H.R. 2474 and
H.R. 1699 are of concern to the Coalition. H.R. 2474 seeks to
increase the maximum civil penalty for violations under the
Consumer Product Safety Act. H.R. 1699 would require certain
manufacturers to provide consumer product registration forms to
facilitate recalls of durable infant and toddler products.
H.R. 2474: Civil penalties actually apply to any violation
of one of 11 prohibited acts under Section 19 of the CPSA.
Failure to file a report under Section 15(b) is but one of the
violations enumerated. The statute needs to be clarified to
distinguish between instances that involve a failure to report
incidents that evidence a defect with injury and those that
involve sale of product that violates a per se requirement.
Civil penalties are assessed up to $7,000 per violation.
The maximum civil penalty for any related series of violations
is currently $1.825 million. Congress has directed the
Commission to adjust the maximum penalty amounts every five
years to account for inflation. Originally the maximum amount
was $500,000, which has more than tripled because of the
adjustment escalations in the existing enabling statute.
H.R. 2474 would substantially increase the maximum civil
penalty for failure to report or violations of section 19.
Under the bill, any related series of violations would carry a
maximum penalty of $20 million, or an increase of more than
1,000 percent from current penalty levels. Such an increase
could actually prove to be counter-productive to the mission of
the CPSC.
Current penalties are more than adequate to deter companies
from failing to report serious product defects. Companies do
report defective products, as evidenced by hundreds of
voluntary recalls conducted each year with the support of the
CPSC, versus the handful of civil penalty actions announced by
the Commission. Companies that fail to report not only face
substantial civil penalties, but also risk bad publicity and
increased product liability exposure. These factors are
significant deterrents to any failure to report.
Increasing the cap on civil penalties to the level
contemplated by H.R. 2474 could be counter productive. Rather
than encouraging prompt reporting, it could act as a deterrent
to companies when they are contemplating a voluntary recall. It
would change the nature of the present voluntary compliance and
penalty process to be more adversarial, with more defensiveness
and pre-litigation maneuvering and less emphasis on getting
unsafe products out of the marketplace quickly. Such a move
could also be a financial and administrative burden on the CPSC
because costly and time-consuming litigation would replace the
current, almost entirely voluntary, non-litigation process.
There is no evidence that the current $1.825 million
penalty cap frustrates enforcement. The Commission has yet to
impose the current maximum cap of $1.825 million on any company
for a violation of Section 19. Moreover, in cases involving
violations of the Flammable Fabrics Act or the Federal
Hazardous Substances Act, or in cases where the CPSC alleges a
series of unrelated violations, the Commission has sought
penalties substantially in excess of $1.825 million. For
example, in a 2001 lawsuit against Wal-Mart and Icon Health &
Fitness for alleged failure to report defective exercise
equipment, the CPSC was able to seek civil penalties of $9
million for six counts involving various models (applying the
$1.5 million cap then in effect.) Applying similar multipliers
to the penalty levels proposed under H.R. 2474, the CPSC could
have sought penalties of $120 million in the Wal-Mart case, or
could pursue similar penalties in any case alleging failure to
report multiple defects, such as cases involving different
product models. The prospect of such astronomical penalties,
which could bankrupt many companies, could lead to enforcement
policies out of all proportion to actual violations.
H.R. 1699. Manufacturers have been providing consumers with
product registration cards for years. These cards require the
consumer to be pro-active. FMVSS 213, the Federal standard for
child restraint systems, requires manufacturers to instruct
consumers to register child restraint systems for use in motor
vehicles upon purchase. Statistics show that approximately 12
percent of consumers do so. Such products are fairly expensive
(usually costing upwards of $50) and are associated with
protecting and saving the lives of children. One would think
that this would be a strong incentive to register them, but, as
noted above, that is not the case.
The low response rate is not the only factor to look at
when considering product registration cards. The data collected
and the utility of the information deteriorates over time.
Census studies indicate that 40 million people change addresses
annually in the US. The utility of a database is even more
limited with children's products because they are often
donated, handed down or sold to other consumers at thrift
stores and yard sales. The information collected becomes
ineffective at that point, since the manufacturer has no way of
contacting the secondary consumer.
A study conducted by the National Highway Traffic Safety
Administration in 2002 on product registration cards for child
safety seats found that the usefulness of the database
maintained for child safety seats had declined to 10-13 percent
after only three years.
The Commission studied this issue in depth for several
years and concluded that mandating such a card is not
beneficial. Every recall is different depending on specific
circumstances and each recall campaign needs to be seen as an
individual entity, with an action plan developed by the
manufacturer and CPSC working together to make it the most
effective as possible. An over-reliance on product registration
cards will not improve overall recall effectiveness.
It would be a much better use of resources if the CPSC
were to continue to work with manufacturers to come up with
ways to improve overall product recall effectiveness, using the
power of the Internet and other innovative techniques, rather
than have the Commission dictate a system that is marginally
effective.
In conclusion, the CPSC is considered the global leader in
the area of product safety due to its domestic programs and
international initiatives. Other nations are setting up
programs based on the CPSC model. Coalition members have, in
the past, been good partners with the CPSC, to institute the
two reference proposals would be a step back at a time when we
should be looking forward.