[Congressional Record Volume 155, Number 23 (Thursday, February 5, 2009)]
[Senate]
[Pages S1685-S1686]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BENNETT:
  S. 389. A bill to establish a conditional stay of the ban on lead in 
children's products, and for `other purposes; to the Committee on 
Commerce, Science, and Transportation.
  Mr. BENNETT. Mr. President, I rise to introduce important legislation 
today.
  Last year, this body passed the Consumer Product Safety Improvement 
Act. Overall, I think this was a good bill, and will contribute to 
improving our children's safety.

[[Page S1686]]

  However, as is the case sometimes, we are now learning about some of 
the unintended consequences arising from that legislation. I've heard 
from Utahns who are very concerned that parts of the act are going to 
put them out of business and harm those that benefit from their 
products and services.
  Next week, as part of the Consumer Product Safety Improvement Act, a 
new lead standard for products goes into effect. The act makes it 
illegal to sell products that contain more lead than the new standard 
allows--it classifies those products as banned hazardous substances. 
The new standard should help protect our children from the harmful 
effects of lead poisoning.
  The act also requires manufacturers to use accredited third-party 
laboratories to certify the safety of their products made for children 
ages 12 and under. If you don't test the product, you can't sell it. 
This makes perfect sense.
  But here's the problem: while resellers of those products are exempt 
from the testing requirements of the legislation, they are not exempt 
from the penalties associated with violating the act. Violations can 
result in criminal punishment of up to $250,000 and 5 years in prison, 
and civil liability up to $15 million. All of this is scheduled to go 
into effect on February 10th of this year--less than one week from 
today.
  However, the Consumer Product Safety Commission understands there are 
problems associated with the act. I met with Acting Commissioner Nancy 
Nord last Friday about these issues. We discussed both the act's 
potential problems and the importance of maintaining public safety. 
That same day, her organization postponed the testing and certification 
requirements of the act for one year. They needed additional time to 
finalize the rules, and issue clearer guidance on how businesses should 
comply with the law. Congress gave them the discretion to do this.
  However, and this is the problem, the Consumer Product Safety 
Commission doesn't have the discretion to postpone the actual 
standard--how much lead is legally allowable in certain products. So 
you have a situation where the agency is not enforcing the standard by 
requiring testing and certification while at the same time, the 
companies that have products in their inventory that exceed the lead 
standard are subject to both criminal and civil penalties. As one who 
ran his own business, I can tell you that this makes no sense.
  The legislation that I introduce here today will remedy this seeming 
contradiction. My legislation gives the commission the authority, if it 
determines it's necessary, to also delay implementing the new lead 
standards until they have finalized the rules and begin to enforce the 
law. If the commission were to exercise those authorities, it would 
give both Congress and the Consumer Product Safety Commission enough 
time to really evaluate the effects of this legislation, particularly 
on our small businesses and thrift enterprises, and implement something 
that actually makes sense.
  You must understand that I am not opposed to the new lead standards 
or keeping our children safe. My bill is not mandating a year delay; 
it's simply giving the commission that authority. In the meantime, we 
must craft some sort of compromise before this well-intended law wreaks 
havoc upon many of our small businesses and those in the thrift 
industry that serve the lower income in our country.
  Let me explain some of the problems associated with the CPSIA.
  Some of my constituents who are concerned about this bill are running 
small businesses out of their homes to supplement their family income 
during these difficult economic times. One constituent, Katie Erwin, 
recently wrote to my office to tell me her personal experience. She 
designs and makes baby dresses that are sold on the Internet. Her 
dresses require the use of many fabrics, buttons, snaps, and elastic 
materials. She has done her research into what her business will have 
to do after the CPSIA becomes law. Even though she uses only materials 
that have been proven to have safe lead content, she has to have her 
end product tested. Not just each dress, but each element of each 
dress. At $75 per test, one dress could end up costing $750. She told 
us that, in order to be compliant, the dresses would be so expensive 
that she'd never make a profit. And that is if she could even sell the 
more expensive dresses. Other small and home-based businesses tell the 
same story. Many fear going out of business, and don't know how to cope 
with the new enforcement.
  The Ogden Rescue Mission in northern Utah has two thrift stores that 
have been around for decades selling used goods. The owner has made it 
clear that he will stop selling any children's products on February 10 
because he doesn't want to break the law or be held liable for 
inadvertently selling a now-illegal product. Companies risk losing 
their insurance if they accidentally sell an unsafe product. With the 
new standards required by the Consumer Product Safety Improvement Act, 
the chance of that happening is almost certain. I have to believe that 
larger thrift stores like Deseret Industries, the Salvation Army, and 
Goodwill Industries will all have similar concerns once the Act is 
fully understood and implemented.
  Remember, these companies are going to be subject to criminal 
penalties and civilly liable for products they sell that exceed the 
standard, including the resellers whom the law exempts from the testing 
and certification requirements. Again, five years in prison, $250,000 
in criminal penalties and $15 million in civil penalties.
  At a time when we are debating how to stimulate the economy and keep 
businesses afloat, we should not overlook this problem that has the 
potential to cost our economy millions of dollars in litigation costs 
and many, many jobs if it is not implemented in the right way. During 
an economic downturn like the one we are experiencing, thrift stores 
and others that sell used goods are going to be more important than 
ever. Let's make sure they are able to serve our communities by 
providing the commission with the tools necessary to work out the 
problems associated with implementing the CPSIA.
  I hope the Senate expeditiously considers my legislation. I think 
this approach makes sense, and will ultimately help the commission to 
better implement this law. I understand others may have different 
approaches to resolving the same problem, and I would invite a 
discussion of this issue during the coming weeks with my colleagues so 
we can fix it quickly before we do irreparable damage to businesses 
across the country.

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