[Congressional Record Volume 154, Number 129 (Thursday, July 31, 2008)]
[Senate]
[Pages S7867-S7878]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      CONSUMER PRODUCT SAFETY MODERNIZATION ACT--CONFERENCE REPORT

  The PRESIDING OFFICER. The clerk will lay before the Senate the 
conference report.
  The legislative clerk read as follows:

       The committee of conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     4040), to establish consumer product safety standards and 
     other safety requirements for children's products, having 
     met, have agreed that the House recede from its disagreement 
     to the amendment of the Senate and agree to the same with an 
     amendment and the Senate agree to the same, signed by all of 
     the conferees on the part of both Houses.

  The PRESIDING OFFICER. Without objection, the Senate will proceed to 
the consideration of the conference report.
  (The conference report is printed in the House proceedings of the 
Record of July 30, 2008.)
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. INOUYE. Mr. President, I rise today to urge my colleagues to 
support the conference report for H.R. 4040, the Consumer Product 
Safety Improvement Act of 2008.
  Today is a great day for American families. This bill is the first 
step toward revitalizing an important safety agency and restoring 
confidence in the safety of consumer products for years to come.
  Media reports and consumer advocates have called this bill the most 
important consumer product safety legislation in a generation. I call 
it legislation that is long overdue. The Consumer Product Safety 
Commission--Commission--is a small agency with an exceptionally broad 
and important charge, as the name suggests, the protection of 
consumers, particularly children from dangerous products. The 
Commission is responsible for ensuring that the more than 15,000 
products--everything from infant cribs to all-terrain-vehicles--are 
safe to use. Every year, more than 28,000 Americans die and an 
additional 33 million are injured by consumer products. These numbers 
are too high, and an effective CPSC with increased funding, staff, and 
authority is essential to reducing these losses.
  I am very pleased that many of the key provisions which originated in 
the Senate, such as the searchable database, whistleblower protection, 
phthalates restrictions, mandatory toy safety standards, and all-
terrain vehicle safety standards were included in

[[Page S7868]]

the final bill. Several of these initiatives faced significant initial 
opposition from the administration, industry, and indeed, from the 
chair of the Commission itself, and I am pleased that we have come 
together in the House and the Senate to overcome these challenges.
  H.R. 4040 restores needed resources and authority to the Commission. 
Starting in fiscal year 2010, the bill would authorize $626 million 
over a 5-year period to provide the agency the manpower and the 
technology it needs to police a complex consumer marketplace. The 
legislation would restore the CPSC to a full complement of five 
Commissioners in order to expand expertise, maintain continuity and 
avoid the losses of quorum that have plagued the agency in recent 
years.
  In addition, State attorneys general gain clear authority to bring 
civil actions to seek injunctive relief for clear violations of 
statutes enforced by the CPSC. Creating a joint enforcement 
relationship with the states has proven to be successful in the area of 
consumer protection, and this collaboration would provide CPSC a strong 
partner to help protect American families in a meaningful way.
  H.R. 4040 would require manufacturers to use independent labs to test 
children's products and to certify their compliance with mandatory 
safety standards, including the mandatory toy safety standard 
established in the bill. This new toy standard would provide the CPSC 
with necessary enforcement tools to keep dangerous toys out of the 
hands of children.
  Essential and groundbreaking provisions that will improve the health 
of every child include the bans of lead and certain phthalates from 
children's products. Dangerous substances have no place in children's 
products. This legislation provides a significant shift in policy in 
favor of children and. Children have no business being used as guinea 
pigs or becoming victims of the expediency of the manufacturing 
process.
  Our bill also would provide better information to consumers and the 
CPSC. It would create a searchable, publically available database of 
information from nonindustry sources, such as hospitals, child care 
providers, public safety agencies, and consumer reports about product 
hazards collected by the CPSC. The database would provide consumers 
with potentially life-saving information, in an organized and timely 
fashion, which would better equip them to assess product safety risks 
and hazards. To aid in the Commission's enforcement mission, H.R. 4040 
would provide whistleblower protections for employees of manufacturers 
of consumer products when they find and report violations of consumer 
product safety laws.
  Reconciling the differences between the House and the Senate was no 
easy task, but I had no doubts that the work of the committee would 
come to a timely and successful conclusion. The Senate conferees worked 
countless hours since the passage of the Senate amendment last March. 
Senator Pryor authored the original Senate bill reported by the 
Commerce Committee, which became the backbone of the Senate amendment 
to H.R. 4040. His stewardship and attention to the details of this bill 
were essential to negotiating the conference report with the House. I 
also commend my good friend Senator Ted Stevens. Without his guidance 
and support, the Senate amendment would not have passed, and we would 
not have this groundbreaking legislation before us today.
  I would also like to recognize several Senators who were not 
conferees for their contributions to the original Senate amendment and 
for working with the conference committee on the provisions they 
championed in the Senate. Senator Nelson was the leader in crafting 
mandatory toy standards and the independent third party testing mandate 
in the Senate bill. Senator McCaskill's work on the whistleblower and 
the inspector general provisions helped convince the conferees to 
provide whistleblower protections to millions of workers in the 
consumer products sector. Finally, Senator Feinstein's amendment to ban 
certain phthalates from children's products was the foundation of the 
compromise provision that was ultimately accepted by the conference.
  I thank my friend Congressman John Dingell, the chairman of the House 
Energy and Commerce Committee, who has shown his legislative skill and 
care for the American people for more than 50 years. His partnership 
with me this Congress has led to the passage of two monumental bills. 
We worked together to increase fuel economy standards last December, 
and to reform the Consumer Product Safety Commission today.
  The conference committee staff have labored on a nonstop basis since 
May. I want to thank David Strickland, Alex Hoehn-Saric, Jana Fong-
Swamidoss, Mia Petrini, and Jared Bomberg of my Commerce Committee 
staff for a job well done. I would also like to thank Paul Nagle, 
Rebecca Hooks, and Megan Beechener of the Republican Commerce Committee 
staff, and Lloyd Ator and Christopher Knox of the Commerce Committee's 
Office of Legislative Counsel.
  I also wish to recognize the efforts of the following staff of the 
Senate conferees: Erik Olson, Bridget Petruczok, Price Feland, Kate 
Nilan, Tamara Fucile, Brian Hendricks, and Peter Phipps; the House 
Energy and Commerce Committee staff: Consuela Washington, Judy Bailey, 
Christian Fjeld, Andrew Woelfling, Valerie Baron, Brian McCullough, 
Will Carty, and Shannon Weinberg; and House legislative counsel Brady 
Young.
  I would also like to thank CPSC Commissioner Thomas Moore and Michael 
Gougisha and Pamela Weller of his staff for their assistance.
  Mr. President, I urge the adoption of this conference report, and I 
look forward to the President signing this landmark measure into law.
  Mr. STEVENS. Mr. President, I thank my house and senate colleagues 
for their hard work and dedication these past months as we have worked 
for a bipartisan, bicameral consumer product safety bill. This is a 
product of a bipartisan effort in both chambers and I am proud to have 
been a part of it. This final product will provide essential resources 
to a commission badly in need and help ensure the safety of our 
children from hazardous products.
  The number of toys coming from overseas has increased greatly, while 
the resources of the Consumer Product Safety Commission have decreased. 
The result is unsafe products making their way to our store shelves and 
into our homes. We all remember the wave of recalls last year. Passage 
of this bill will help assure consumers that products are safe.
  This bill provides the commission with $626 million over the next 
five years and directs it to significantly increase the number of 
staff, also adding to the number of CPSC employees stationed at our 
ports of entry inspecting products for safety defects.
  In addition to these increased resources, the CPSC will have greater 
authority to punish violators of its statutes. The amount the CPSC can 
collect in civil penalties for a single violation will be raised to 
$100,000, with a maximum penalty cap of $15 million. And, as a way to 
ensure compliance, state attorneys general will have authority to 
enforce particular violations of CPSC statutes, including violations of 
consumer product safety rules, regulations, standards, and bans, as 
well as product recalls.
  I am pleased that the all terrain vehicle (ATV) provision that I 
included in the Senate-passed bill remains in this final bill. For many 
Alaskans ATVs are the primary means of transportation in the summer. 
More than a third of the ATVs sold in 2006 came from overseas--many 
ATVs from overseas do not meet our safety standards. ATVs injured over 
146,000 people in 2006, and approximately 39,000 of those injuries were 
to children under 16. This bill requires all ATVs, both foreign and 
domestic to be subject to the same safety standards.
  Additionally the bill establishes tough lead standards and calls for 
safety rules for durable infant and toddler products such as strollers 
and cribs. Selling, reselling, offering or providing for use any of 
these products not meeting our new safety standards will be illegal. 
Consumers will also have the option of registering their purchases so 
they can be notified in the event of a recall.
  Consumers are purchasing more products over the internet or through 
catalogues, and it is sometimes difficult to ascertain a product's 
dangers by the photo online.

[[Page S7869]]

  Advertisements providing a direct means of purchase will be required 
to contain a cautionary statement. By including these statements, 
consumers, will be able to make an informed decision when purchasing 
products for a young child.
  I congratulate everyone who worked so diligently on this bill. It 
took some time, but we have a solid bill to send to the President that 
will better protect our children and give the Consumer Product Safety 
Commission the resources it has been missing.
  Ms. COLLINS. Mr. President, I am pleased that the Senate is taking up 
the conference report on legislation to accomplish the urgent task of 
preventing dangerous consumer products--especially those intended for 
children--from entering the country or reaching store shelves. The 
conference report contains a wide variety of measures that, taken 
together, deserve our support because they will greatly bolster 
defenses against hazards that must not reach American homes.
  I want to commend the chief sponsor of the bill, Senator Pryor, for 
his leadership on this issue. It has been a pleasure to work with him.
  We all remember last year's alarming and, too often, tragic stories 
of product hazards and recalls that demonstrated the need to strengthen 
protections for consumers, particularly children. Unfortunately, those 
dangers continue. In 2008, new Consumer Product Safety Commission, 
CPSC, recalls have included 19,000 baby rattles that present choking 
hazards, 685,000 wireless helicopter toys whose batteries can catch 
fire, and 91,000 horseshoe-shaped magnet toys whose coating contains 
high levels of lead.
  Lead, as we know, is a particular concern because of its use in 
plastics and paints can expose children to the risk of serious nervous 
system damage and other health effects. The conference report's 
dramatic reduction in the permissible lead content in products marketed 
for children under 12--starting at 600 parts per million and ratcheting 
down to 100 parts per million over 3 years--is just one example of the 
bill's aggressive pursuit of safety.
  Even with these tighter restrictions on lead content, we must 
continue to pay special attention to imported products that violate our 
safety rules. As we have seen with the lead issue, the bulk of toys 
sold in American stores come from China, where cases of careless or 
unscrupulous factories or suppliers using cheaper lead paints in 
violation of factory or official standards make clear the need to 
upgrade our ability to police safety violations in global supply 
chains.
  I am, therefore, pleased that the conference report contains four key 
provisions from the Senate-passed bill, S. 2663, that emerged from an 
in-depth investigation conducted by my staff on the Homeland Security 
and Governmental Affairs Committee. Combined with important 
enhancements to CPSC authorities and funding provided in the conference 
report, these four provisions will ensure that unsafe imported consumer 
products, including toys and clothing that endanger our Nation's 
children, are effectively screened at the border and, when necessary, 
destroyed.
  Last August, I asked my HSGAC staff to review the effectiveness of 
Federal safety standards governing children's toys and clothing. The 
committee investigators conducted numerous interviews of manufacturers' 
representatives, retailers, consumer advocacy groups, and Federal 
regulatory agencies, and visited a manufacturer's testing lab and two 
ports. Their findings confirmed several weaknesses in our current 
consumer product safety regime; namely; the CPSC is understaffed, 
inadequately resourced, and lacks crucial authorities needed to fulfill 
its mission; voluntary standards applicable to many classes of products 
can be useful in quickly addressing safety issues, but lack the full 
force of law; and the inability to effectively enforce safety standards 
at our ports limits our Nation's ability to stop hazardous imported 
products from entering the American marketplace.
  My staff investigation made it clear that our border inspections 
regime must target and intercept foreign products that fail to meet 
U.S. safety standards. As our committee found, Customs and Border 
Protection currently lacks the authority to seize and destroy dangerous 
imported products even if the agency suspects that an unscrupulous 
importer turned away at one port might attempt to bring these products 
in through another U.S. port.
  The committee's investigation also revealed that coordination and 
information sharing between CBP and CPSC were often ad-hoc--providing 
CBP with little useful information that would allow its agents to 
target shipments that are more likely to contain dangerous goods.
  The provisions that I authored, and worked with Senators Inouye, 
Stevens, and Pryor to include in the bipartisan reform bill that the 
Senate passed, specifically target problems with unsafe imports by 
ensuring that CPSC and U.S. Customs and Border Protection work 
effectively together to keep unsafe consumer products out of our 
country. These provisions: authorize CBP to seize and destroy dangerous 
consumer products entering our ports, long before they reach store 
shelves or American homes; enhance information sharing between CPSC and 
CBP so that inspectors at our Nation's ports can focus their resource 
on the most risky shipments, targeting products, manufacturers, and 
importers with poor consumer-safety records; task CPSC with developing 
a comprehensive risk assessment tool to help CBP quickly evaluate 
imported products that might violate our Nation's safety standards; and 
direct the CPSC to develop a plan to ensure that Commission employees 
are assigned to the National Targeting Center at CBP to increase 
interagency collaboration in evaluating the potential risks of inbound 
shipments for potential safety issues.
  I am pleased that the conferees retained these provisions in their 
report. They will help the CPSC and Customs and Border Protection 
identify dangerous products that enter our ports and prevent them from 
reaching American homes.
  Other measures in this conference report--increased staffing and 
funding for the CPSC, tougher civil and criminal penalties for 
violations of safety laws, a ban on reselling recalled products, 
enhanced whistleblower protections, safety certifications, and product 
tracking labels--will also strengthen the Consumer Product Safety 
Commission's ability to protect American consumers. With the new 
authorities in this bill, the CPSC will be able to work more 
effectively with importers, retailers, consumers, and industry 
associations to develop and enforce product-safety standards.
  This legislation will make a real difference in protecting America's 
children and other consumers from hazardous toys and other products.
  I urge my colleagues to adopt the conference report.
  Mr. SUNUNU. Mr. President, I rise today in support of the conference 
report to H.R. 4040, the Consumer Product Safety Improvement Act. As 
many of my colleagues know, the Consumer Product Safety Commission, or 
CPSC, is responsible for protecting children and families against 
unreasonable risks associated with 15,000 consumer products. Over the 
past year, Congress has worked to improve the ability of the CPSC to 
ensure the products in their jurisdiction are safe for children and 
families across the Nation. The legislation before us today will 
provide increased funding and expanded authorities for the CPSC to 
accomplish their mission.
  This conference report is a comprehensive measure that reflects 
months of hard work on both sides of the aisle and between both 
Chambers. It is a compromise measure that reflects the give and take of 
each Chamber and each party. It is a bipartisan measure, demonstrated 
by the fact that the House of Representatives voted 424-1 on Wednesday 
in favor of this conference report.
  Among the many items in this report, it takes a tough stand on lead 
in children's products by banning lead in products made for children 12 
and younger in 6 months, setting a maximum threshold of 600 parts per 
million, ppm, which is reduced over time to 100 ppm after 3 years.
  The conference report includes a significant increase in civil fines, 
with a maximum fine of $15 million, more than 8 times the current 
maximum, and it raises the per violation penalty cap to $100,000 from 
the current level of

[[Page S7870]]

$8,000. It also includes language to consider the economic impact on 
small businesses when levying a fine. Further, it toughens criminal 
penalties on bad actors who commit ``knowing and willful'' violations 
of product safety laws by making them eligible for up to 5 years in 
prison, fines, or both.
  The conference report establishes testing and certification 
requirements for children's products made for those ages 12 and under 
before they are sold in the U.S. It also accredits third party labs to 
do such product testing, including qualified proprietary labs.
  The conference report includes a searchable consumer database that 
the CPSC will have on-line in 2 years. It will contain minimum 
reporting requirements for data to be posted, including: a description 
of the product; identification of the manufacturer; a description of 
the harm related to the use of the product; the submitter's contact 
information; and verification that the submitted information is true 
and accurate. Companies would have ten business days to review whatever 
information is slated to go on the database, and post their own 
comments. If necessary, the CPSC would remove inaccurate material and 
redact confidential information.
  The report gives authority to the CPSC to pick the recall remedy that 
a business must follow, to either replace the product, repair the 
product, or refund the consumer's money. It also makes it illegal to 
sell a recalled product, or export a recalled product without explicit 
permission. Further, it requires tracking labels for children's 
products and packaging where it is practicable, to make sure products 
are identifiable for more effective recall purposes.
  Under the report, all foreign and domestic-made all-terrain vehicles, 
or ATV's, will be required to meet the same mandatory safety standards. 
It also bans the sale of new 3-wheeled ATV's in the United States.
  On one of the more contentious items dealt with in the conference, a 
compromise was reached earlier this week to ban three specific 
phthalates, and place an interim ban on three other phthalates while a 
formal health assessment is done. Once complete, the CPSC would 
consider the findings of this assessment and conduct a rulemaking to 
see if the interim ban should stay in place or be removed.
  Finally, the conference report provides a significant increase in the 
amount of funding available to the CPSC. Beginning in fiscal year 2010 
and running through fiscal year 2014, the agency is authorized to 
receive a total of $626 million. A specific authorization for travel is 
included in the overall funding level to meet the ban placed on travel 
paid for by outside groups. Given the new and expanded authorities the 
CPSC will be required to undertake, this level of funding will meet 
those needs.
  Mr. President, the American people expect the CPSC to protect them 
from dangerous toys and household products and ensure the consumer 
goods they use every day are the safest possible. Congress is giving 
them the tools to meet that goal.
  I would like to extend my thanks and congratulations to Senator 
Inouye, who chaired this conference committee, for the bipartisan 
process in which the conference was run, and how this report was 
crafted. I would also like to thank my fellow conferees--Senators 
Pryor, Boxer, Klobuchar, Stevens and Hutchison--for their hard work and 
due diligence in putting together a measure that should enjoy the 
support of a majority of our colleagues.
  Mr. LEVIN. Mr. President, I will vote for H.R. 4040, the Consumer 
Product Safety Improvement Act. The conferees have reached a 
responsible compromise that makes important reforms to the Consumer 
Product Safety Commission, CPSC, that are long overdue that will make 
products safer for consumers and children.
  This bill takes important steps to shore up a weak and ineffective 
Consumer Product Safety Commission. As a grandfather and consumer, I am 
appalled at the lack of resources and enforcement authority of the CPSC 
and its inability to adequately protect our children, our food supply 
and the general public from harmful or contaminated products.
  We can and should be doing much more to protect the American 
consumer. As was recently underscored by the alarming number of 
children's products with high lead content, contaminated pet food, and 
defective imported tires, there are a lot of cracks in the systems that 
were supposed to be watching out for consumers.
  We need to know our children's and grandchildren's toys are safe. We 
need to know that the food we import is not tainted with harmful 
chemicals. We need to know the products we buy will not harm us or our 
children. I believe it is the government's basic responsibility to 
protect the public.
  Those who work for the companies that make these products may often 
be in a position to detect and prevent serious problems or injuries 
before they occur. I am pleased that this bill includes important 
protections for corporate whistleblowers that will encourage employees 
to come forward about violations and defective products without the 
fear of retaliation by their employer.
  Many of the defective and contaminated products are imported. Even 
with its current limited resources and reach, CPSC recalled 
approximately 150 tainted products from China in 2007 including tires, 
toys, baby cribs, candles, bicycles, remote controls, hair dryers, and 
lamps. Imagine how many more contaminated or defective products are 
slipping through the cracks and reaching American consumers without 
being detected.
  We are being deluged by cheap imports from China and elsewhere. We 
should at least be making sure the products we import are not 
contaminated or dangerous. That is why I wrote to President Bush 
requesting that his administration investigate dangerous products that 
have been imported from China. We need to strengthen our agencies and 
laws so that products that do not meet our health and safety standards 
are stopped at our borders. To do this we need to give the CPSC the 
necessary tools and resources, including more manpower to adequately 
inspect imports.
  This bill makes the legislative changes needed to give the CPSC the 
necessary tools and resources to improve on its past poor performance 
and reassure consumers that there will be more oversight of the 
marketplace in the future.
  This bill will: increase overall funding for the CPSC ; increase CPSC 
staffing; prohibit the use of dangerous phthalates in children's toys 
and child care articles; streamline product safety rulemaking 
procedures; ban lead beyond a minute amount in products intended for 
children under the age of 12 and require certification and labeling; 
increase inspection of imported products so we are not allowing 
recalled or banned products to cross our borders; increase penalties 
for violating our product safety laws; strengthen and improve recall 
procedures and ban the sale of recalled products; require CPSC to 
provide consumers with a user-friendly database on deaths and serious 
injuries caused by consumer products; and ban 3-wheel all terrain 
vehicles, ATVs, and strengthens regulation of other ATVs, especially 
those intended for use by youth.
  The legislation has the strong support of consumer, scientific and 
public health organizations. In a letter to Senate leaders, key 
representatives of these groups called H.R. 4040, a ``ground-breaking 
measure, which will help ensure that the Consumer Product Safety 
Commission (CPSC) has the resources and regulatory authority it needs 
to protect consumers and repair our long-broken product safety net.''
  Organizations supporting the bill include the following, among 
others: Thomas H. Moore, Consumer Product Safety Commissioner; Alliance 
for Patient Safety; American Academy of Pediatrics; American 
Association of Law Libraries; American Association of University 
Professors, AZ Conference; American Library Association; Circumpolar 
Conservation Union; Coalition for Civil Rights and Democratic 
Liberties; Consumers Union; Consumer Federation of America; Doctors for 
Open Government; DoorTech Industries, Inc.; Ethics in Government Group, 
EGG; Federation of American Scientists; Federal Employees Against 
Discrimination; Focus On Indiana; Fund for Constitutional Government; 
Georgians for Open Government; Government Accountability Project; HALT, 
Inc.--An Organization of Americans for Legal

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Reform; Health Integrity Project; Information Trust; Integrity 
International; Kids in Danger; Liberty Coalition; National Consumers 
League; National Association of State Fire Marshals; National 
Employment Lawyers Association; National Judicial Conduct and 
Disability Law Project, Inc.; National Research Center for Women & 
Families; National Whistleblower Center; No Fear Coalition; OMB Watch; 
OpenTheGovernment.org; Parentadvocates.org; Patrick Henry Center; 
Project on Government Oversight; Public Citizen; Public Employees for 
Environmental Responsibility; Sustainable Energy and Economy Network; 
Taxpayers Against Fraud; The 3.5.7 Commission; The New Grady Coalition; 
The Semmelweis Society International, SSI; The Student Health Integrity 
Project SHIP; Truckers Justice Center; Union of Concerned Scientists; 
U.S. Bill of Rights Foundation; U.S. Public Interest Research Group; 
and Whistleblowers USA.
  I support this bipartisan legislation and I am please that it will 
now become law.
  Mr. KYL. Mr. President, I fully support many of the changes that H.R. 
4040, the Consumer Product Safety Improvement Act of 2008, makes to 
ensure that America's consumers are safe. However, one of the main 
goals of the bill is to provide the Consumer Product Safety Commission, 
CPSC, with the tools and resources it needs to protect American 
consumers. Although this conference report does take some steps towards 
that end, it simultaneously hurts businesses without providing 
commensurate benefits to consumers. For this reason, I will vote 
against the conference report.
  The CPSC was created in 1972 to establish a single set of product 
safety regulations for manufacturers and distributors to follow 
throughout the country. This conference report, however, includes a 
section that would expand the power of state attorneys general to bring 
actions on behalf of their own states against businesses they believe 
violate federal consumer protection statutes mandated by the CPSC. 
Giving 50 attorneys general discretion over consumer product safety 
laws would lead to 50 different interpretations of the law, and, thus, 
a confusing patchwork of safety standards that would make it more 
difficult for the CPSC to enforce uniform, national policies. Moreover, 
in recent years, some State attorneys general have used their positions 
to garner national attention to advance their careers. I am worried 
that this conference report leaves enough discretion to the state 
attorneys general to enforce CPSC rules that would tempt some to file 
frivolous lawsuits that could ultimately undermine the effectiveness of 
the CPSC.
  The conference report also keeps intact a requirement for the CPSC to 
create a public database of product-related complaints. This public 
database provides the opportunity for parties to post false information 
online, and allows minimal oversight by the CPSC or an opportunity for 
manufacturers to defend themselves. Inaccurate information about a 
company's product on a government-endorsed website could irrevocably 
harm a company's reputation, and I cannot support such a provision.
  I also oppose the section in the conference report that would extend 
new whistleblower protections to millions of employees of consumer 
product manufacturers, distributors, and retailers. Under this bill, 
once an employee notifies the CPSC of an action he ``believes to be'' a 
violation of a consumer product safety regulation, the employer faces a 
fine if it discharges or takes any negative action against the 
employee. Including such a provision would grant any disgruntled 
employee a powerful incentive to report erroneous or unsubstantiated 
information as an alleged product safety violation in order to insulate 
himself from unrelated disciplinary actions. There is no reason for 
such a provision except to dramatically unbalance the employee-employer 
relationship, and the failure to fix this section after repeated 
attempts causes me even greater concern that it has little to do with 
legitimate whistleblowers and more to do with hamstringing employers 
from dealing appropriately with problem employees.
  It is unfortunate that I am forced to vote against this conference 
report because I do believe the CPSC's resources ought to be bolstered. 
However, this conference report carries with it too many of the 
problems that existed when the bill left the Senate.
  Mr. NELSON of Florida. Mr. President, I rise today in strong support 
of the H.R. 4040 conference report.
  The issue of consumer product safety--and particularly the safety of 
toys and other children's products--has long been an important issue 
for me.
  Over the last few years, however, we've seen ample evidence that the 
Consumer Product Safety Commission's authority to protect the public 
was not up to the task. This breakdown in authority was made crystal 
clear by last year's ``summer of recalls''--when we saw recall after 
recall of children's products, including:
  Children's jewelry and toys covered in lead paint. Toys with 
detachable magnets that can cause fatal intestinal obstructions. 
Stuffed animals with small parts that can detach and become a choking 
hazard. A children's craft kit containing beads that--when swallowed--
metabolized into the same chemical compound as GHB, the date rape drug.
  Unfortunately, I saw some of the impacts of harmful toys first hand. 
Last July, I visited with a team of emergency room doctors in Tampa who 
treated children with intestinal obstructions due to magnets that had 
detached from toys. In some cases, the doctors noted that the 
intestinal obstructions were so severe that the children had to undergo 
surgery to remove the blockages.
  Invasive surgery like this is scary for most adults--so you can only 
imagine what it was like for a 4- or 5-year-old to go through something 
like this.
  That August, I also visited with a family in Jacksonville who left 
two of their children in a room with a disco ball toy. The disco ball 
toy later overheated, caught fire, and emitted enough carbon monoxide 
to kill both children.
  After visiting with the families of these children, I also learned 
first hand about the weaknesses in our product safety laws--and the 
general failure of leadership at the CPSC. This regulatory breakdown 
was highlighted by the fact that the CPSC had only one full time 
employee--who worked in this cramped, antiquated lab--responsible for 
ensuring the safety of our children's toys.
  Quite frankly, I was outraged by this--and last summer I introduced 
S. 1833, the Children's Product Safety Act, which would, require third-
party testing of toys and other children's products.
  These third-party testing requirements were incorporated by Senator 
Pryor into the Senate version of the CPSC Reform bill--along with an 
amendment I offered in the Commerce Committee that would mandate the 
first mandatory safety standards for toys.
  And I am very pleased that they are included in the final conference 
report.
  Taken together, these provisions will ensure that toys and other 
products intended for children 12 and under will be tested by a 
rigorous third-party screening process that is continuously updated to 
address new and emergency hazards. And that is a big victory for 
America's families.
  I would like to thank the members of the conference and the staff of 
the Senate Commerce Committee for all of their hard work on this issue.
  This legislation will help ensure that we never face another ``summer 
of recalls.''
  I urge my colleagues to support this bill and get it to the White 
House as soon as possible.
  Mr. COBURN. Mr. President, the Consumer Product Safety Bill, while 
well intentioned, will do little to improve consumer product safety.
  Since when should the Government be held responsible for the safety 
of consumers when time and time again the Federal bureaucracy has 
failed in its other safety obligations and responsibilities?
  In 2005, Hurricane Katrina was a stark and sad reminder that a 
bloated, inefficient, and incompetent bureaucracy does not have the 
ability to protect citizens.
  Just last year, the interstate bridge collapse in Minnesota reminded 
us all of the misplaced priorities of the Federal Government. Instead 
of ensuring

[[Page S7872]]

the structural soundness of bridges, politicians were more concerned 
with their earmarks, and diverted funds away from bridges such as the 
one in Minnesota for their own political benefit.
  In another example of Government incompetence, the census is 
currently in grave peril of not completing its constitutional duty 
effectively and on time. This speaks volumes about the inefficiencies 
of our Government, as we have 10 years to prepare for the census with 
over two centuries of experience to draw upon to execute this 
responsibility.
  This bill is a perfect example of politicians rushing to legislate on 
a problem that really isn't there in order to pat themselves on the 
back to try to curry favor with their constituents in an election year.
  The truth is the paranoia and hysteria currently with consumer 
product safety is not proportional to the reality of the situation. 
Nancy Ord, Chairman of the Consumer Product Safety Commission, stated 
in January, ``Last year was marked by intense media scrutiny of the 
agency and of toy recalls in particular . . . the coverage reached 
near-hysteria level, And then, of course, some politicians, sensing a 
possible political issue, jumped on the bandwagon.''
  While there has been a rise in product recalls, in a sense, the 
recalls are themselves a positive sign, as dangers were identified by 
manufacturers and products were removed from the market.
  More importantly, these product recalls have not translated into dire 
health consequences, as there has been little evidence of any 
deterioration in overall product safety. There were few if any reports 
of consumer injuries from the recalled products. Although the number of 
injuries from toys increased somewhat in 2006, injury rates generally 
have decreased since 2001. Also, lead poisoning cases are at historic 
lows in many areas.
  Regardless, many of the companies that fall under the CPSC umbrella 
have raised the levels of their own self-policing. Wal-Mart has 
announced that this month it will require independent lab testing for 
all new toys as well as those it reorders. Mattei and others have ended 
the use of certain kinds of batteries. And the Toy Industry Association 
has worked with the Commission on a plan to test toy safety in the 
design and manufacturing process as well as the final product.
  The political reaction to the problem, like most Government 
solutions, is to throw money at it.
  While some statutory upgrades are needed, almost doubling the size of 
the agency, as this bill does, will not eradicate or drastically 
improve the issue.
  As we have seen time after time, when Government throws money at a 
problem, rarely does it improve a situation, and more often than not, 
it further complicates and aggravates the problem.
  In addition, there are also a lot of unintended consequences in this 
bill, as it is a trial lawyer giveaway. While the dramatic increase in 
authorization is troubling, the provisions that subject businesses to 
the wrath of the trial lawyer and plaintiffs bar are far more 
problematic as they will raise the cost of doing business, hurt or 
destroy small businesses, and could further exasperate an already 
unstable economy.

  Authorizing State attorneys general to initiate lawsuits, creating a 
consumer product safety database, and drastically increasing fines are 
free giveaways to trial lawyers that will do little for consumer safety 
and will unnecessarily damage small businesses.
  Allowing State attorneys general to bring lawsuits on behalf of their 
residents for violations of consumer safety rules would reverse 35 
years of successful policy experience.
  Overzealous State attorneys general will now have the authority and 
discretion to interpret safety regulations and could unilaterally on a 
whim rule a business is noncompliant and could then hand over expensive 
lawsuits to their trial lawyer's cronies who are notoriously close with 
State law enforcement officials.
  State attorneys, then, would be hard-pressed to deny politically 
active State trial lawyers to sue companies when the litigation will 
not cost the State a dime and could, in many cases, bring the attorney 
general positive publicity.
  This provides false incentives for overzealous attorneys general and 
would run precisely counter to the CPSC's policy of carefully balancing 
cost and benefit in making safety regulations.
  Lawsuits, which are expensive, adversarial, and often drawn out, can 
be an impediment to a successful long-term relationship that maximizes 
compliance and safety.
  State attorneys general should not have the power to reduce the 
effectiveness of the CPSC's efforts by undermining its balanced 
approach to enforcement.
  Another free giveaway to trial lawyers is the creation of a consumer 
product safety database. The database is estimated to cost $10 million, 
which accounts for over 10 percent of the Commission's budget.
  This section requires the CPSC to establish a Web site to post any 
complaint, regardless of accuracy or merit, from consumer groups or 
individuals.
  While on the surface the database appears to aim to educate and warn 
consumers about potential product defect or harm, the reality of it is 
far from effective. It is highly doubtful that many consumers will know 
about or even care to peruse a Government Web site to validate whether 
a product is safe prior to purchase, especially considering the claims 
are not verified prior to posting.
  What the database does provide in much more practical terms however, 
is a centralized, consolidated data source where law firms, unions, and 
lobbyists are given access to cherry-pick consumer reports for 
potential lawsuits.
  There is already a consumer product database, called lawcash.com, 
that consolidates consumer product complaints.
  The Web site brags that its database provides consumers ``the 
information you need and the access you deserve to find out if you are 
eligible to claim your share of billions of dollars distributed yearly 
through thousands of class action lawsuits.''
  This reveals the true motives for such ``consumer product 
batabases,'' and accordingly the Government has no role in serving as a 
conduit of information that promotes hit job lawsuits.
  This cumbersome endeavor will divert funds and resources from efforts 
that actually go toward consumer safety and redirect it toward 
maintaining a Web site that will only contain inflammatory information 
that unions and lawyers can utilize to sue businesses.
  The bill drastically increases maximum civil penalties more than 
tenfold and the individual violation more than twentyfold, subjecting 
each product that wrongfully enters the market to a $100,000 fine. The 
threat of a $100,000 fine will cause many small manufacturers and 
retailers who commit only minor violations to declare bankruptcy.
  Additionally, faced with these hefty fines, this provision could 
erode the healthy and productive relationship between businesses and 
the Commission.
  Faced with bankruptcy, many businesses would be much less inclined to 
voluntarily report violations and as a consequence would not receive 
the proper guidance to fix the problem, subjecting the business and its 
employees to potential harm.
  While allowing increases in frivolous lawsuits and drastically hiking 
up the fines for businesses may allow Senators to tout to the public 
that they are tough on consumer safety, these actions are unlikely to 
improve the situation, and more importantly, the unintended 
consequences would be to increase the cost of doing business, impairing 
economic and job growth at a time when our economy desperately needs 
economic and job growth.
  Mr. SCHUMER. Mr. President, I ask today to speak on the Consumer 
Product Safety Improvement Act of 2008.
  I commend the conferees for ironing out the differences between the 
House and Senate passed versions of this bill that will deliver to the 
American people strong and much needed reform to consumer product 
oversight. I was proud to be a cosponsor of the Senate version, and I 
would like to thank and congratulate Chairman Inouye for his leadership 
and Senator Pryor for his extraordinary work in crafting this 
outstanding, bipartisan bill.
  Over the last several years the Consumer Product Safety Commission 
has become a shell of its former self, with a noticeable void in 
leadership. Dangerous goods and toys have fallen into

[[Page S7873]]

the hands of our most vulnerable population while the CPSC has looked 
the other way. This act, however will prevent the CPSC from shirking 
its responsibility and ignoring its obligation to make America safe.
  This act will provide the Consumer Product Safety Commission with the 
authority an resources it needs to be more effective in its critical 
mission to protect consumers. Quite frankly, the current product safety 
system is broken, and the CPSC is in desperate need of reform. Too many 
unsafe goods are reaching the shores of the United States. Too many 
dangerous products are finding their way into the hands of American 
consumers, and all too often, young children.
  We worry about our kids when they are in class, when they are walking 
or driving home alone, even when they surf the Internet. We should not 
have to worry that the toys they play with might be hazardous to their 
health, or god forbid, even fatal.
  The effectiveness of the CPSC has been severely undermined by years 
of budget and personnel cuts and, as a result, has been unable to keep 
up with globalization of the marketplace. This bill will reverse those 
trends and give the CPSC the budget and the tools it desperately needs 
to again become an effective force for consumer protection.
  Protecting consumers, and especially children, is a priority, and the 
bill takes a tough approach to products that might threaten their 
health and safety. Imports of untested children's products will be 
prohibited, and mandatory third-party testing of children's products 
will be implemented. Tracking labels for children's products will help 
parents tie safety recalls and alerts to prior purchases. Children's 
products containing lead and certain plastic additives will be banned. 
A new Chronic Health Advisory Panel will be created. Finally, the sale 
of recalled products will be prohibited.
  The CPSC must do a better job of getting hazardous products off the 
shelves and out of consumers' reach and these provisions will give the 
CPSC the tools to do just that. Manufacturers, importers, and retailers 
will be required to do their part as well or face serious consequences. 
The bill provides for increased criminal and civil penalties for those 
who knowingly and willingly violate product safety laws. It also gives 
State attorneys general the means to enforce Federal safety standards 
and get dangerous products off the shelf. Protections for 
whistleblowers are also included in the bill, so that employees who 
identify dangerous products along the supply chain can come forward 
with vital health and safety information without fear of reprisal.
  These and other provisions of the CPSC Reform Act represent 
commonsense solutions to keeping consumers informed and safe from 
dangerous products. The bill will also ban industry-sponsored trips, 
which have the perception of unduly influencing CPSC officials.
  Passage of this bill is vital if we hope to rebuild, reform, and 
revitalize the CPSC. The CPSC must be re-equipped to do its job of 
enhancing product safety and protecting kids and consumers from unsafe 
products.
  The Federal Government must again become an effective force for 
consumer protection. The Consumer Product Safety Improvement Act is a 
first step--and a vital one at that.
  Ms. BOXER. Mr. President, in a Senate where recently it has been so 
hard to get things done, Democrats and Republicans have come together 
in a bipartisan manner to produce a strong conference report that is a 
victory for children and families.
  I have a message for American parents everywhere who are concerned 
about the safety of their children's toys, ``We have heard your 
concerns, and today, Congress has acted.''
  The Senate is about to approve landmark consumer legislation to 
protect our kids from dangerous children's products and hazardous 
substances.
  I want to thank Chairman Inouye, Vice Chairman Stevens, Senator Pryor 
and their staffs for all of their hard work and dedication to this 
important bill.
  As both a parent and a grandparent, I have been incredibly distressed 
by the seemingly endless stream of reports about defective and 
dangerous children's toys and products.
  Consumers Union dubbed 2007 ``The Year of the Recall'' after 45 
million toys and other children's products were recalled. Recalls 
jumped 22 percent for the 9-month period that ended June 30 of this 
year.
  Clearly, the Consumer Product Safety Commission has not been able to 
keep pace with the growing market of consumer products many of which 
are now manufactured abroad.
  For too long we have asked this agency, which has a staff of 
approximately 400 charged with overseeing the safety of 15,000 consumer 
products, to do too much with grossly inadequate resources and 
enforcement tools.
  The Consumer Product Safety Improvement Act of 2008 addresses those 
resource problems and finally brings the CPSC's enforcement powers in 
line with those of other Federal agencies charged with protecting the 
public.
  The Consumer Product Safety Improvement Act of 2008 includes a strong 
ban on lead and phthalates, requires testing of all children's products 
that must meet mandatory toy standards, and for the first time, 
includes a public, searchable national database on the CPSC website of 
all consumer complaints filed with the CPSC so consumers can be better 
informed about dangerous products.
  The bill also strengthens the Consumer Product Safety Commission's 
authority to recall products, increases enforcement authority for 
Attorneys General, includes stronger civil and criminal penalties for 
violators, bans industry sponsored travel, and provides whistleblower 
protections for employees of manufacturers, private labelers, 
retailers, and distributors.
  I want to thank the conferees for including two provisions I authored 
in committee.
  The Labeling Requirement for Advertising Toys and Games requires 
products sold over the Internet or in catalogues to list any cautionary 
statements, such as choking warnings, in their advertisements.
  These labels would normally be visible when the products are 
purchased in the store but oftentimes are not visible to the consumer 
when sold over the Internet or in catalogues.
  My second provision requires manufacturers of durable infant or 
toddler's products to provide consumers with postage-paid registration 
forms with each product so consumers can be better informed if the 
product they bought is eventually recalled.
  This provision was based on a bill by Congresswoman Jan Schakowsky 
called the Danny Keysar Child Product Safety Notification Act.
  Danny Keysar was a 16-month-old child who died when his Playskool 
Travel-Lite portable crib collapsed--5 years after the CPSC had ordered 
it off the shelves because it was dangerous. Danny was tragically the 
fifth victim to die due to the faulty design of this crib and a sixth 
child died 3 months later.
  From 1990 to 1997 more than 1.5 million portable cribs with a similar 
dangerous design were manufactured. A total of 17 children have been 
killed by these types of cribs.
  Neither Danny's parents nor a caregiver at the daycare where the 
accident occurred were aware of the recall. State inspectors who had 
visited the daycare a week before were not aware of the crib's recall.
  Our provision will provide parents with a method for receiving these 
vital recall updates that could save their child's life.
  I was also pleased to work closely with Senator Klobuchar, 
Representative Waxman, and other conferees to get a strong ban on lead 
in toys and other children's products to protect our kids from 
dangerous lead contamination.

  I also want to thank Chairman Inouye and Senator Pryor for their 
leadership and support on this issue.
  We all know that lead poisons the brain and nervous system, can 
decrease IQs, and cause behavioral problems, and that it is especially 
dangerous to children.
  Let me tell you about Colton Burkhart, a 4-year-old boy from Oregon 
on a family camping trip who became violently ill from lead poisoning 
after he swallowed a medallion from a necklace bought in a 25-cent toy 
vending machine. The medallion turned out to be 39 percent lead, which 
had elevated his blood lead level to a potentially

[[Page S7874]]

fatal level of 123 micrograms of lead per deciliter of blood, more than 
12 times the CDC's lead poisoning level of concern.
  Jarnell Brown, another 4-year-old boy was brought to the hospital 
emergency department in Minneapolis, Minnesota complaining of vomiting. 
Believing that the child had a stomach virus, he was released. The next 
day, Jarnell was rushed to the hospital after having suffered a seizure 
and respiratory arrest. Jarnell later died. An autopsy revealed that he 
died of acute lead poisoning from a heart-shaped charm from a bracelet 
that his mother had gotten free with her Reebok sneakers. The charm was 
found to contain 99.1 percent lead. Reebok recalled 300,000 bracelets 
worldwide as a result.
  The many recalls of lead toys and products over the past year have 
highlighted the need for action.
  This legislation puts into place a ban on lead in children's products 
that gets increasingly stringent over 3 years, and that will help 
ensure that we protect our kids today and in future generations from 
the scourge of lead poisoning.
  In addition, Senator Feinstein, Representative Waxman and I 
successfully fought, shoulder-to-shoulder, for a ban on dangerous 
phthalates in many children's products.
  Studies show that phthalates are endocrine disruptors linked to 
reproductive abnormalities in male babies and many experts believe that 
the accumulation of exposures to multiple phthalates presents a risk to 
developing fetuses and young children.
  Phthalates have been banned from many children's products in the 
European Union since 1999, and at least nine other countries have 
followed suit in an effort to better protect children from harmful 
health effects of these chemicals.
  My home State of California was the first in the Nation to prohibit 
phthalates in many toys and child care products, and Washington State 
and Vermont have taken similar actions.
  In addition, major retailers such as Wal-Mart, Target, and Toys ``R'' 
Us have already begun to take phthalate-containing children's products 
off their shelves.
  China, which manufactures 85 percent of the world's toys, reportedly 
has created a separate manufacturing line for products intended for 
export to nations that ban phthalates.
  This legislation will permanently ban three of the most dangerous 
phthalates, DEHP, DBP, and BBP from all children's toys and child care 
articles.
  In addition, it imposes an interim ban on three other dangerous 
phthalates, DINP, DIDP, and DnOP, in children's toys that can be put in 
the mouth, and in childcare articles. That ban can only be altered 
after a detailed scientific review.
  Of course, nothing in this bill undercuts the Commission's authority 
to go beyond the specific products listed in this section's ban, or the 
specific phthalates listed in the ban, in any additional action the 
Commission takes under its regulatory authorities.
  States such as California that have been leaders in protecting 
children by restricting toxic phthalate alternatives, are protected.
  I also want to thank the conferees for working with Congressman 
Waxman and myself to protect State warning laws related to consumer 
products, such as California's Proposition 65.
  We are so pleased to see the final conference report clarifies that 
State and local toy and children's product requirements in effect 
before the date of enactment of this legislation are not preempted.
  This bill is so important to the health and safety of our children 
and families. I want to again thank my colleagues on both the House and 
Senate side for all of their efforts on this legislation.
  We can't risk one more child's injury or tragic death due to faulty 
toys or children's products. I am glad to hear that the President has 
agreed to sign this legislation.
  Mrs. FEINSTEIN. Mr. President, I rise in support of the Consumer 
Product Safety Improvement Act of 2008. This legislation makes a number 
of long overdue changes and improvements in the Consumer Product Safety 
Commission and their ability to protect children and other consumers. 
It will impose mandatory toy safety standards, in place of the current 
voluntary standards; create an online database, which parents and 
consumers can search for reports of safety problems; provide 
whistleblower protections to employees of manufacturers, retailers and 
distributors to promote prompt reporting of any safety hazard; and 
authorize a much needed funding increase for the Consumer Product 
Safety Commission to ensure that these reforms are carried out.
  Most importantly, this legislation bans the use of six phthalates in 
many children's products and child care articles. It will ban the use 
of more than .1 percent of three phthalates--DEHP, DBP, or BBP--in toys 
for children ages 12 and under and childcare articles for children ages 
3 and under; and place an interim ban on the use of more than .1 
percent of three additional phthalates--DINP, DIDP, and DnOP--in any 
toy that can be placed in a child's mouth or a child care article for 
ages 3 or under.
  The Consumer Product Safety Commission will convene a Chronic Hazard 
Advisory Panel, CHAP, to fully examine the science on the effects of 
phthalates and any phthalate alternative. After this study, they will 
determine whether the interim ban should remain in place.
  I believe they will find that the ban is essential to the protection 
of children's health.
  Let me say, it is about time. The United States is often behind the 
rest of the world when it comes to chemical policy. The same has been 
true for phthalates. These chemicals have been restricted in at least 
31 nations, including European Union--27 countries--Argentina, Fiji, 
Japan, Korea, and Mexico.
  It took action from three States--California, Washington and 
Vermont--before we have reached this point.
  It took voluntary action from the country's largest toy retailers: 
Wal-Mart, Toys ``R'' Us, and Target, all of which have announced that 
they will stop selling products that contain phthalates.
  With the passage of this legislation, parents throughout this country 
will have the same assurances as parents in the E.U., in Argentina, in 
Japan, and all of these other counties. They will be sure that the toys 
they give their children do not contain a dangerous plasticizer.
  And make no mistake, these chemicals are dangerous. When children 
chew on toys filled with phthalates, these chemicals leach from the 
toy, and into their bodies. Phthalates have been linked to a variety of 
reproductive defects.
  The science on phthalates is still evolving. But today, we are acting 
out of precaution: removing potentially dangerous substances from 
products until they are shown to be safe.
  Our current system for dealing with chemicals requires that 
regulators show that a chemical is dangerous before it can be removed 
from the market. We have this backwards: the burden should be placed on 
the manufacturers to prove to us that the chemicals they want to put in 
everyday items are safe. Our children should not be guinea pigs for 
untested chemicals.
  The interim ban on three phthalates marks a departure from this 
longstanding ``use chemicals first, ask questions later'' approach. 
These chemicals will be permitted back into toys only if they are 
proven to be safe, the very hallmark of the precautionary principle.
  We need to move fully in this direction. It is my belief that 
chemical additives should not be placed in products that can impact 
health adversely until they are tested and found to be benign. I look 
forward to working with my colleagues to see that we exercise the same 
caution with all chemicals.
  This is a sea change in our Nation's chemical policy, and 
predictably, we faced strong opposition from industry. Many people 
contributed to this victory here today, and I would like to mention a 
few.
  I would like to thank Chairman Inouye, Senator Stevens, and Senator 
Pryor for their steadfast support throughout this process.
  This would not have been possible without my home State colleagues, 
Senator Boxer and Congressman Waxman. They supported this from the 
beginning, and their work ensured that the best product possible 
emerged from conference.

[[Page S7875]]

  David Strickland, Alec Hoehn-Saric, and the Commerce Committee staff 
have been invaluable. They worked long nights and weekends to reach an 
agreement on this provision, and I appreciate it.
  Kristin Wikelius and Chris Thompson of my staff, who quickly learned 
about this issue and worked hard to move this through the legislative 
process.
  Dozens of grassroots groups from across the country supported my 
amendment and rallied their members to do the same. I will ask to have 
a list of these groups printed in the Record.
  This Coalition was led by the Breast Cancer Fund, based in my home 
city of San Francisco. Their work, expertise, and support made this 
happen.
  On another matter central to children's health, I am very pleased 
that this bill includes a provision that I sponsored to require 
secondhand cribs that are sold and used in the marketplace to have the 
same product safety standards as new cribs.
  This bill will close a loophole in consumer product safety standards, 
and help reduce injuries and deaths that come from used cribs that have 
missing or broken parts.
  Currently, U.S. consumer product safety standards apply only to new 
cribs and not to the sale or commercial use of secondhand cribs, which 
cause most crib-related infant injuries and deaths.
  The measure included in the conference report would prohibit 
commercial users, such as thrift stores and resale furniture stores, to 
sell, resell or lease unsafe used cribs that are structurally unsound, 
and prohibits hotels, motels, and daycare centers from using unsafe 
cribs, and adds secondhand cribs to the list of child and infant 
products covered by the Consumer Product Safety Act, the law that 
already applies to new cribs and other children's products.
  The safety standards for secondhand cribs will now match the safety 
standards for new cribs, including crib slats should be no more than 
2\3/8\ inches apart to prevent infant from slipping through the slats 
and corner posts should not be higher than 1/16 inches above the end 
panels of the crib which prevents infant's clothing from becoming 
tangled on the crib.
  Every year, more than 11,300 children require hospital treatment from 
crib-related injuries and over 30 children die from injuries sustained 
in cribs.
  Most of these injuries and deaths occur in secondhand cribs that have 
dangerous features.
  The language included in this conference report is similar to 
proposals that Representative Ellen Tauscher and I have worked on for 
many years.
  I am very pleased that this legislation will help give parents the 
peace of mind that secondhand cribs are just as safe as brandnew cribs.
  The phthalate ban, the expansion of crib safety protections, and the 
entire Consumer Product Safety Improvement Act are hard-fought 
victories for children and all of those concerned with their safety.
  I urge my colleagues to join me in supporting this conference report, 
and I urge the President to sign this into law the moment it lands on 
his desk. We have waited years to take action against chemicals like 
phthalates, and we should not wait any longer.
  I ask unanimous consent that the list of groups supporting my 
amendment be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     May 27, 2008.
     Hon. Daniel K. Inouye,
     Chairman, Committee on Commerce, Science and Transportation, 
         U.S. Senate, Dirksen Senate Office Building, Washington 
         DC.
     Hon. Ted Stevens,
     Vice Chairman, Committee on Commerce Science and 
         Transportation, U.S. Senate, Dirksen Senate Office 
         Building, Washington DC.
     Hon. John Dingell,
     Chairman, Committee on Energy and Commerce, House of 
         Representatives, Rayburn House Office Building, 
         Washington, DC.
     Hon. Joe Barton,
     Ranking Member, Committee on Energy and Commerce, Rayburn 
         House Office Building, Washington, DC.
       Dear Chairman Inouye, Vice Chairman Stevens, Chairman 
     Dingell, and Ranking Member Barton: The undersigned 
     organizations wish to express strong support for including 
     Senator Feinstein's amendment in the final version of the 
     Consumer Product Safety Commission Reform Act (CPSCA). 
     Senator Feinstein's amendment would prohibit the manufacture, 
     sale, or distribution in commerce of certain children's 
     products and child care articles that contain phthalates. By 
     eliminating unnecessary exposure to phthalates in children's 
     products, the United States would join the European Union and 
     14 separate countries in requiring the safest toys for its 
     children.
       Over the last several decades, children have faced an 
     increasingly challenging time just making it through what 
     should be normal stages of growth and development. Of 
     particular concern are chemicals found to have negative 
     health impacts that are in products children use every day. 
     Of primary interest to the undersigned is the use of 
     phthalates, present in a variety of children's products 
     including soft plastic toys and teethers, which have been 
     linked to developmental problems, such as premature breast 
     development in girls, male genital defects, and reduced sperm 
     quality.
       Alternatives to phthalates already exist and are on the 
     market. Some major manufacturers have already taken the 
     responsible path toward eliminating these hazards from their 
     products and major retail outlets such as Wal-Mart and Toys-
     R-Us are requiring that the products on their shelves be 
     phthalate-free. Yet, there currently are no laws in the U.S. 
     prohibiting the use of these chemicals, and no way for 
     parents to know whether the products they buy will help--or 
     hinder--their child's development.
       States have already started taking action on this issue. 
     California and Washington already prohibit the use of 
     phthalates in children's products and almost a dozen states 
     have introduced similar measures. It is time for the federal 
     government to ensure that children in all 50 states receive 
     protection from unsafe chemical exposures in the toys they 
     chew on and play with everyday. Several states have also 
     taken the lead on protecting the health of their citizens 
     from unsafe chemical exposures in other consumer products. 
     The undersigned organizations are especially appreciative of 
     Senator Feinstein's inclusion of a ``savings clause'' in her 
     amendment that would prevent the federal preemption of state 
     efforts to enact stricter toy protections and regulate 
     phthalates more strictly in other product categories.
       The undersigned organizations strongly urge the CPSC 
     Conference Committee to include the Feinstein Amendment 
     prohibiting the use of phthalates in children's toys and 
     childcare articles in the reconciled version of the House/
     Senate Consumer Product Safety Commission Reform Act.
           Sincerely,
       AAIDD (American Association on Intellectual and 
     Developmental Disabilities).
       Alaska Community Action on Toxics.
       Association of Reproductive Health Professionals.
       AWHONN (Association of Women's Health, Obstetric & Neonatal 
     Nurses).
       Breast Cancer Action.
       Breast Cancer Fund.
       Center for Environmental Health.
       Center for Health, Environment and Justice.
       Citizens for a Healthy Bay
       Clean New York.
       Clean Water Action Alliance of Massachusetts.
       Coalition for Clean Air.
       Commonweal.
       Consumer Federation of America.
       Consumers Union.
       CREHM (Chicago Consortium for Reproductive Environmental 
     Health in Minority Communities).
       EarthJustice.
       Endometriosis Association.
       Environment California.
       Environmental Health Fund.
       Environmental Working Group.
       Greenpeace.
       Health Education and Resources.
       Healthy Building Network.
       Healthy Child Healthy World.
       Healthy Children Organizing Project.
       Illinois Maternal and Child Health Coalition.
       Illinois PIRG.
       INCIID (InterNational Council on Infertility Information 
     Dissemination, Inc.).
       INND (Institute of Neurotoxicology & Neurological 
     Disorders).
       Institute for Agriculture and Trade Policy.
       Institute for Children's Environmental Health.
       Kids in Danger.
       Learning Disabilities Association of America.
       Maternal and Child Health Access.
       Minnesota PIRG.
       MOMS (Making Our Milk Safe).
       MomsRising.
       Natural Resources Defense Council.
       Olympic Environmental Council.
       Oregon Center for Environmental Health.
       Oregon Environmental Council.
       Physicians for Social Responsibility- San Francisco Bay 
     Area Chapter.
       Planned Parenthood Affiliates of California.
       Planned Parenthood Golden Gate.
       Planned Parenthood of Mar Monte.
       Planned Parenthood of the Rocky Mountains.
       PODER (People Organized in Defense of Earth & her 
     Resources).
       Project IRENE.
       Public Citizen's Congress Watch.
       RESOLVE: The National Infertility Association.
       Safe Food and Fertilizer.
       SisterSong Women of Color Reproductive Health Collective.
       Sources for Sustainable Communities.
       The American Fertility Association.
       The Annie Appleseed Project.
       US PIRG.

[[Page S7876]]

       Washington Toxics Coalition.
       WashPIRG.
       WHEN (Women's Health & Environmental Network).


                        WHISTLEBLOWER PROTECTION

  Mrs. McCASKILL. Mr. President, I would like to engage in a colloquy 
with the Senator from Arkansas. The whistleblower protection provision 
is an enforcement cornerstone of this legislation because it creates a 
legal right for private employees to help enforce consumer protection 
laws. It is important to underscore the Senate's intent that this 
provision builds upon ``best practices'' in whistleblower laws.
  Mr. PRYOR. That is correct. The whistleblower provision should be 
interpreted broadly and consistent with ``best practices'' to achieve 
the law's purpose. For instance, ``employee'' is defined broadly to 
include individuals in any dimension of the employment concept: 
incumbent or former employees. It protects all individuals who have 
received compensation to engage in activities for which the corporation 
is responsible. The law's purpose may not be circumvented by hair-
splitting interpretations that plug safe channels for witnesses to 
disclose relevant evidence of safety hazards.
  Mrs. McCASKILL. Furthermore, it is not Congress's intent to 
substitute these whistleblower protections for other preexisting rights 
and remedies against unfair employment practices.
  Mr. PRYOR. Yes. Consistent with long-established Supreme Court case 
law see e.g., English v. General Electric, 496 U.S. 270, 1990--these 
rights do not cancel or replace preexisting remedies, whether under 
other overlapping congressional statutes, State laws, State tort claims 
or collective bargaining agreements.
  Mrs. McCASKILL. Companies should also not look to override the 
whistleblower protections through nondisclosure policies or agreements 
such as company manuals, prerequisites for employment or exit 
agreements.
  Mr. PRYOR. There should be no confusion that the rights for protected 
activity created by this statute are the law of the land. They 
supersede and cannot be canceled or overridden by any conflicting 
restrictions in company manuals, employment contracts, or exit or 
nondisclosure agreements.
  Mrs. McCASKILL. Thank you for engaging in this colloquy with me to 
reaffirm the rights conveyed in the whistleblower provision. This 
provision is one of many in this legislation that reflects on the skill 
you have demonstrated in guiding this bill through the Congress.


                               preemption

  Mrs. BOXER. I rise to discuss with Senator Pryor, the distinguished 
chairman of the Subcommittee on Consumer Affairs, Insurance, and 
Automotive Safety, and lead sponsor of the Senate legislation, the 
preemptive effect of certain provisions in H.R. 4040.
  I am pleased that the bill protects State warning laws related to 
consumer products or substances, such as California's Proposition 65. 
The conference report clarifies that any such warning laws in effect as 
of August 31, 2003, are not preempted by this act or the Federal 
Hazardous Substances Act. This important clarification effectively 
harmonizes the four statutes that are enforced by the Commission. Other 
laws enforced by CPSC, including the Consumer Product Safety Act, 
clearly do not preempt or affect State warning requirements like 
Proposition 65. The Federal Hazardous Substances Act, however, is 
arguably ambiguous as to its effect on State warning requirements. I am 
pleased that we have eliminated this ambiguity with this conference 
report and harmonized all of the Commission's statutes on this point.
  I yield to Senator Pryor, and ask: Is it also your understanding that 
nothing in this legislation or any of the laws enforced by the Consumer 
Product Safety Commission will preempt or affect Proposition 65 in any 
way?
  Mr. PRYOR. Yes, that is my understanding.
  Mrs. BOXER. My second inquiry relates to the bill's provisions on 
phthalates. I am pleased that the language preserves the ability of 
States to regulate phthalates in product classes that are not regulated 
under this legislation, as well as States' ability to regulate 
alternatives to phthalates, such as other chemical plasticizers that 
might be used as substitutes to the phthalates that will be removed 
from toys under this law. I yield to Senator Pryor and ask, is it your 
understanding this law does not preempt or affect States' authority to 
regulate any alternatives to phthalates that are not specifically 
regulated by the Commission in a consumer product safety standard?
  Mr. PRYOR. Yes, that is my understanding.
  Mrs. BOXER. I also ask the distinguished floor manager Senator Pryor 
to confirm my understanding that the third-party testing provisions of 
the conference report have no preemptive effect on State or local 
testing related requirements. Is my understanding correct?
  Mr. PRYOR. Yes, the bill leaves such authority to impose testing 
requirements in place without preemption.
  Mrs. BOXER. Finally, I wanted to confirm my understanding that the 
conference report makes it clear in section 106(h)(2) that State or 
local toy and children's product requirements in effect prior to 
enactment of this bill are not preempted by this legislation or by the 
Consumer Product Safety Act. Is my understanding correct?
  Mr. PRYOR. My colleague is correct. The legislation does not preempt 
or otherwise affect State or political subdivision requirements 
applicable to a toy or other children's product that is designed to 
deal with the same risk of injury as the consumer product safety 
standard, if such State or political subdivision has filed such 
requirement with the Commission within 90 days after the date of 
enactment of this act.
  Mr. INOUYE. Mr. President, I yield now to the author of the measure, 
Senator Pryor of Arkansas, the balance of my time.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. PRYOR. Mr. President, the first thing I want to say is this is a 
great bill. It is something every Senator should be proud of, because 
what we saw in 2007 was a record number of product recalls. In fact, 
last year, there were 45 million toys that were recalled. Every single 
toy was made in China that was recalled last year.
  Unfortunately, it doesn't stop there. In 2008, we are 29 percent 
ahead of the schedule we set back in 2007. So this problem is not going 
away. This is a great bill, and this is a classic example that 
bipartisanship works.
  We did this bill the way bills ought to be done. We worked it out in 
committee. I see that Senator Stevens walked onto the floor. He played 
a vital and important role in the committee process and afterward. We 
worked together with Democrats and Republicans, and the House worked 
with the Senate. It has been a great example of how things can and 
should work around here.
  We added third-party testing for toys. We added a new database for 
people to search to look at complaints about products. We give the 
Attorney General the ability to follow what the CPSC has done and get 
dangerous products off the shelves. We add whistleblower protection, so 
if people in the private sector know about a dangerous problem and 
reveal that, they don't lose their jobs. We increase civil penalties to 
make sure these companies--especially the ones who are repeat 
offenders--will know the CPSC has the authority to enforce what they do 
and make them feel the pain of that. We ban lead in children's 
products.
  We move the commission, which used to be a five-member commission and 
is now down to three, back to a five-member commission.
  We change the rulemaking process so that the authority rests with the 
CPSC again and not with the industry.
  I could go on and on about the great things in this legislation. I 
know my time is short. Mr. President, how much time do I have?
  The PRESIDING OFFICER. Five minutes.
  Mr. PRYOR. Mr. President, I want to make sure I thank the people who 
deserve the lion's share of the credit. Senator Stevens was critical. 
He came in at a very important time, early in the process, and helped 
shape the bill and helped to get us from a Democratic bill to a 
bipartisan bill that got us to where we are today. In fact, the House 
voted last night 424 to 1 to pass this.
  I also thank Senators Sununu and Hutchison. Senator Inouye, chairman 
of the Commerce Committee, was fantastic. Senator Boxer was great; she

[[Page S7877]]

was very focused on several issues. Senator Klobuchar, although a new 
Senator, had a positive impact on the process. It was an honor to work 
with them. Also I thank several House Members, of course, including 
Chairman Dingell and Congressman Barton, fantastic partners over there, 
who worked hard to get this done. And also Speaker Pelosi weighed in at 
the end to make sure we got it done.
  Maybe more important than all of us is the staff. We have a lot of 
staff sitting on the back benches. They have spent countless hours on 
this bill. They have been here weekends, in the evenings, and they have 
been haggling over every word, comma, and paragraph. I am so grateful 
to all of them.
  The people on my staff include Andy York and Price Feland. When you 
look at the Commerce Committee, there is David Strickland, Alex Hoehn-
Saric, Jana Fong Swamidoss, Mia Petrini, and Jared Bomberg. They were 
great. Of course, on the Republican side are Paul Nagle and his team, 
including Megan Beechener, Becky Hooks, Bridget Petruczok, Erik Olson, 
Kate Nilan, Tamara Fucile, Brian Hendricks, and Peter Phipps.
  Also, I thank the CPSC commission. They helped as did their staff. 
Commissioner Moore, and Michael Gougisha and Pam Weller of his staff, 
as well as Jack Horner of the acting chairman's staff, all of these 
people played a key role in getting us to this very good bipartisan 
piece of legislation.
  As I said, this is something of which the Senate and House can be 
very proud. Today, the White House announced they will sign the 
legislation. This is a major victory for the American people. Again, we 
followed the rules, we followed the correct process here. We got this 
done and we are going to make a big difference in the American 
marketplace.
  Mr. President, I will turn it over to my colleague from Texas.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I thank the Senator from Arkansas. 
First, I have to say he was dogged in his determination to work out 
this bill. It was a very long conference, with many issues. It was 
complicated. The importance of it was paramount in both of our minds.
  I also want to say that on something this hard, the leadership of our 
committee was the driving force. Senator Inouye and Senator Stevens, 
the chairman and vice chairman of our committee, worked so hard, along 
with their staffs, to make sure the process kept going, that we never 
gave up. The conference lasted for months. I cannot say enough about 
Senator Inouye and Senator Stevens and the partnership on this 
committee that produced this great bill.
  Then Senator Pryor and Senator Sununu, chairman and ranking member of 
the subcommittee, also worked diligently and hard to make sure we took 
everyone's views into consideration. We tried to make compromises, even 
on some of the very toughest issues. That was just in the Senate. And 
then we also had the House. I feel very good about this result.
  Again, the approval of this bill by very diverse groups shows this is 
a very good bill. The American Academy of Pediatrics, the Consumer 
Federation of America, and the Retail Industry Leaders Association all 
were at the table working with us to try to make sure we accommodated 
the safety needs of consumers--especially the parents of small 
children--and the needs of retailers and manufacturers to be able to 
produce products that consumers can safely purchase.
  In this bill, we have a considerable emphasis on children's toys. 
That is what caused us to start looking at whether we had enough 
manpower in the Consumer Product Safety Commission. So I think 
children's toys are a very big part of the emphasis in this bill.
  Let me talk about another few points in the bill. We authorize 
significant upgrading and modernization of the equipment and labs used 
by the commission to provide for more personnel, including more 
personnel at ports of entry and in foreign countries, to improve 
inspection of manufacturing facilities abroad and the products brought 
into our country from abroad.
  We establish the most comprehensive lead safety standards that we 
have seen to date for toys and the paint manufacturers use on toys. 
These standards are implemented responsibly to give manufacturers time 
to adapt, without compromising safety. The standards also allow for use 
of alternative detection and measurement methods to improve the 
accuracy and efficiency of testing paint on small surfaces.
  We also strengthen enforcement by increasing civil and criminal 
penalties and providing a limited role for State attorneys general to 
work in concert with the commission to enforce commission actions in 
the States. This is a huge improvement--one that Senator Pryor, a 
former attorney general, was very aware that we could have better 
information, because the attorneys general in all of the States know, 
perhaps more urgently and more rapidly, when a product is deficient. So 
when they can step in and take an action based on the Consumer Product 
Safety Commission regulations, that is very helpful to expanding the 
reach.
  We can also point to other areas where we made compromises. The 
bottom line is this is a very good bill. Maybe you don't like 
everything in it. I agree. I didn't get everything I wanted in the 
conference, nor did anyone else. But as I said, this was a months-long 
conference committee. It was a bill that passed the Senate with many 
amendments.
  The Senate bill was vastly improved in the conference. We could not 
have done that without many hours--and weekend hours--of staff support. 
The Senator from Arkansas pointed out the number of staff who did such 
a great job. I want to say that on our side, Christine Kurth, Paul 
Nagle, Megan Beechener, Rebecca Hooks, and my own staffer, Bryan 
Hendricks, did a great job of working with the Democratic staff to 
forge the compromises.
  On the Democratic side, I thank David Strickland, Andy York, Price 
Feland, and Jana Fong Swamidoss. I think we did a great job with the 
help of the experts on our staffs.
  Mr. President, with that, I will reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. PRYOR. Mr. President, Senator Hutchison said something that is 
very important. We did focus on toys. Toys capture the imagination of 
the American public because no parent or grandparent wants to buy 
something and give it to a young child which could harm or, in some 
cases, kill them. That is the type of thing that grabs the headlines. 
Let me tell you, a couple of levels deeper, one of the ways we make 
toys safer for kids all over this country. What we did in this 
legislation is we established a statutory toy standard. Once we have 
that standard, and allow the CPSC to modify it over time, once that is 
in the statutes, that means we can test for that standard.
  This bill has mandatory toy testing. For the first time ever, we are 
going to test these toys to make sure they meet the U.S. safety 
standards before they are ever sold in the marketplace.
  If you think about a recall, a recall is a very uneconomical--I will 
use that term--and inefficient way to find a dangerous product. So the 
manufacturer comes over here with a product--many cases from overseas--
and it is distributed, sold, and it injures someone, and the recall 
happens, and these products are all over America. We are streamlining 
it and making our marketplace more efficient and better for people all 
over this country.
  I will end where I started. I see Senator Sununu here, who played a 
very key role. All of the Senators helped in some ways. Again, I will 
end where I started, and that is that this is a great piece of 
legislation. It really is. The American people will be so pleased with 
the work we have done to get this passed and get the President to sign 
it. It will make a big difference in everyone's lives all over this 
country. Again, it shows what we can do if we work together to solve 
our problems.
  I am very honored and privileged to have Senator Inouye designate me 
as the lead guy on our side to do this, and to watch Senators Stevens 
and Inouye work together. They set the pace on this legislation.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S7878]]

  The legislative clerk proceeded to call the roll.
  Mr. INOUYE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INOUYE. Mr. President, I ask for the yeas and nays on this 
measure.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the conference report to accompany 
H.R. 4040. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Massachusetts (Mr. Kennedy), the Senator from 
Minnesota (Ms. Klobuchar), the Senator from Illinois (Mr. Obama) are 
necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Minnesota (Mr. Coleman), the Senator from New Mexico (Mr. 
Domenici), the Senator from Nebraska (Mr. Hagel), and the Senator from 
Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 89, nays 3, as follows:

                      [Rollcall Vote No. 193 Leg.]

                                YEAS--89

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     Dodd
     Dole
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden

                                NAYS--3

     Coburn
     DeMint
     Kyl

                             NOT VOTING--8

     Clinton
     Coleman
     Domenici
     Hagel
     Kennedy
     Klobuchar
     McCain
     Obama
  The conference report was agreed to.
  Mr. DORGAN. Mr. President, I move to reconsider the vote by which the 
conference report was agreed to, and I move to lay that motion on the 
table.
  The motion to lay on the table was agreed to.

                          ____________________