[Congressional Record Volume 157, Number 40 (Wednesday, March 16, 2011)]
[Senate]
[Pages S1753-S1757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. UDALL of New Mexico (for himself, Mr. Lautenberg, and Mr. 
        Blumenthal):
  S. 601. A bill to encourage and ensure the use of safe football 
helmets and for other purposes; to the Committee on Commerce, Science, 
and Transportation.
  Mr. UDALL of New Mexico. Mr. President, football fans today are 
wondering if there will be a National Football League season this fall. 
Many fans could find that their Sundays are not the same if team owners 
and players do not reach an agreement. Business owners who depend on 
those fans will also be affected. That is an issue that members of 
Congress have weighed in on already.
  But today I want to discuss a more important issue for the future of 
football. Football is facing a concussion crisis--a brain injury 
crisis--that affects up to 4.5 million football players who are still 
too young to play in the NFL but may aspire to make it to the pros some 
day.
  This fall, those kids and young adults will put on their uniforms and 
pads and take to the gridiron. It is a time-honored tradition that will 
continue regardless of what happens to the upcoming NFL season. For 
many rural communities in states like New Mexico, high school football 
means Friday night lights excitement and civic pride in the school 
team. This year, about 8,000 New Mexican high school players will 
continue this American tradition.
  But football is a contact sport, and thousands of student athletes 
are injured every year. Many of those injuries are concussions. In 
fact, one study

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estimates that as many as one in five football players suffers head 
injuries in any given football season. For young people between 15 and 
24 years old, playing sports is the second-leading cause of traumatic 
brain injury, behind only motor vehicle crashes. Every year, there are 
up to 3.8 million sports-related concussions, many of which go 
undiagnosed and unreported.
  Those alarming statistics highlight the need for more awareness about 
sports concussion. That is why it is appropriate to discuss this 
important public health and children's safety issue today, which is 
``Brain Injury Awareness Day.''
  Retired NFL great Nick Lowery--the all time leading scorer for the 
Kansas City Chiefs and one of the greatest kickers to play the game--
explained to me:

       When I played football in high school, in college, and in 
     the National Football League, suffering a concussion was 
     often shrugged off as merely having your `bell rung.' My 
     teammates had no shortage of toughness and wanted to build 
     the mentality to `out tough' our opponents.  . . . We now 
     know that multiple concussions can lead to lasting brain 
     damage and should be treated as a serious matter. Today's NFL 
     players want to set a good example for the next generation.

  There have been alarming news stories about what has happened to 
several retired NFL players who were famous for that toughness Lowery 
described. Long after their careers ended, some of those NFL greats 
succumbed to chronic traumatic encephalopathy, CTE, caused by repeated 
head trauma. Last month, retired NFL player Dave Duerson took his own 
life with a gunshot to the chest. According to news reports, he left 
instructions to his family that his brain be given to the NFL Brain 
Bank, presumably to be examined for evidence of CTE.

  Yet, what is even more alarming is that researchers have already 
found CTE in the brain of a deceased 18-year-old high school football 
player with a history of concussions. Researchers do not yet know how 
early an athlete might develop CTE.
  TBI can also be an ``invisible'' injury. Without the kind of brain 
injury awareness that families and health care providers are trying to 
raise today, an athlete who suffers a mild TBI may not link that injury 
to common symptoms later such as headaches, nausea, and cognitive 
changes.
  One of my constituents, Alexis Ball, is a bright college student and 
star soccer player at the University of New Mexico. She told my office 
how she struggled for months with post-concussive symptoms. Concussions 
forced her to sit out from play and miss classes. Thankfully, she's 
recovered today and now volunteers to raise concussion awareness among 
young athletes in Albuquerque.
  But there are other cases that are much more unfortunate. The parents 
of one high school student athlete from Oregon named Max Conradt wrote 
me to explain how Max, their 17-year-old son, returned to play 
quarterback too soon after suffering a concussion. Max was wearing a 
20-year-old helmet when he suffered another concussion that led to 
brain damage. Max's parents wrote me to ask, ``How is it possible that 
our son was issued a helmet three years older than he was?''
  Unfortunately, there are an estimated 100,000 helmets out there that 
are more than a decade old. These helmets will be worn by high school 
and younger football players this fall. Many coaches will not know that 
some of their helmets might be older than their players. And one helmet 
safety expert has stated that even the best new football helmets would 
need to be four times better--in terms of attenuating direct, linear 
forces--to protect against concussion.
  These facts drive my serious concerns about the current voluntary 
safety standards for new and reconditioned football helmets, which have 
not been significantly revised in three decades.
  On this Brain Injury Awareness Day 2011, I am pleased to introduce 
bipartisan legislation, the Children's Sports Athletic Equipment Safety 
Act, to require improvements to the voluntary football helmet 
standards, including clearly visible warning and date of manufacture 
labels, concussion resistance, if feasible, reconditioned helmets and 
youth helmets.
  I am pleased to be joined in this effort by colleagues Senator Frank 
Lautenberg and Senator Blumenthal. We are joined by Representatives 
Bill Pascrell and Todd Platts, who lead the Congressional TBI Task 
Force, and Representative Anthony Weiner--all of whom are original 
sponsors of the companion bill in the House of Representatives.
  The Children's Sports Equipment Safety Act takes a ``light touch'' 
approach to improving safety. This legislation gives industry groups 
time to put safety first and improve their voluntary helmet standards 
before any mandatory federal safety rules replace them. But if those 
improvements are not made, then the Consumer Product Safety Commission 
must issue product safety rules for football helmets to protect kids.
  I want to emphasize that the Children's Sports Athletic Equipment 
Safety Act isn't just about football helmets. This legislation would 
also increase the potential penalties for making false injury 
prevention claims for other types of sports and athletic gear.
  Tackling false advertising with more severe penalties may be an 
increasingly important tool if companies continue to sell new 
headbands, helmets, and mouth guards with potentially deceptive and 
misleading safety claims. Young athletes could put themselves at great 
risk if they think a new ``anti-concussion'' football helmet, soccer 
headband, or mouth guard makes them invulnerable to brain injury. The 
costs of such injuries in financial terms alone are staggering. The 
direct medical costs and indirect costs of traumatic brain injuries 
totaled an estimated $60 billion in the United States in the year 2000. 
That figure of course does not account for the pain and suffering of 
victims and their families.
  I am pleased that the Children's Sports Athletic Equipment Safety Act 
enjoys support from a broad range of organizations and individuals. 
DeMaurice Smith, the Executive Director of the NFL Players Association, 
NFLPA, states in a letter that:

       Not only is the NFLPA committed to the safety of 
     professional football players, but to all who play the sport. 
     We recognize a significant portion of those players are youth 
     and high school athletes who are currently at risk for 
     traumatic brain injury due to the absence of helmet safety 
     standards. We support the Children's Sports Athletic 
     Equipment Safety Act as introduced and commend you for 
     addressing this issue.

  Other supporters include: Brain Injury Association of America; Brain 
Trauma Foundation; Cleveland Clinic; Consumer Federation of America; 
Consumers Union; National Consumers League; National Research Center 
for Women & Families; and Safe Kids USA.
  Nick Lowery, who played 18 years as a professional football player 
and is a member of the Kansas City Chiefs Hall of Fame, notes that:

       Improving sports safety for kids and discouraging sports 
     equipment companies from making false injury prevention 
     claims are two straightforward ways to reduce brain injuries. 
     You can count on my enthusiastic support for this important 
     children's safety and consumer protection legislation.

  Sports and exercise should be encouraged for everyone--especially 
children. We must do more to ensure that kids participate in sports and 
exercise for all the health benefits they bring. While there will 
always be some risk of injury, we must make sure that athletes, coaches 
and parents know about the dangers and signs of concussion. We must 
make sure that they are using safe equipment. And we must take false 
advertising of safety gear out of the game.
  I ask all my colleagues for their support of the Children's Sports 
Athletic Equipment Safety Act as part of this vital effort.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 601

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Children's 
     Sports Athletic Equipment Safety Act''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Football helmet safety standards.
Sec. 4. Application of third party testing and certification 
              requirements to youth football helmets.

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Sec. 5. False or misleading claims with respect to athletic sporting 
              activity goods.

     SEC. 2. FINDINGS.

       The Congress finds the following:
       (1) Participation in sports and athletic activities 
     provides many benefits to children and should be encouraged.
       (2) Participation in sports and athletic activities does 
     involve some inevitable risk of injury that no protective 
     gear or safety device can fully eliminate.
       (3) Sports-related concussion is a form of traumatic brain 
     injury that can lead to lasting negative health consequences.
       (4) Direct medical costs and indirect costs of traumatic 
     brain injuries totaled an estimated $60,000,000,000 in the 
     United States in the year 2000.
       (5) Sports are the second leading cause of traumatic brain 
     injury for Americans who are 15 to 24 years old, behind only 
     motor vehicle crashes.
       (6) Every year, American athletes suffer up to an estimated 
     3,800,000 sports-related concussions.
       (7) The potential for catastrophic injury resulting from 
     multiple concussions make sports-related concussion a 
     significant concern for young athletes, coaches, and parents.
       (8) Football has the highest incidence of concussions, 
     which also occur in many other sports such as baseball, 
     basketball, ice hockey, lacrosse, soccer, and softball.
       (9) An estimated 4,500,000 children play football in 
     organized youth and school sports leagues, including 
     approximately 1,500,000 high school players.
       (10) According to the Consumer Product Safety Commission, 
     more than 920,000 athletes under the age of 18 were treated 
     in emergency rooms, doctors' offices, and clinics for 
     football-related injuries in the year 2007.
       (11) In any given football season, 20 percent of all high 
     school football players sustain brain injuries.
       (12) One study that included a post-season survey of 
     football players found that 47 percent experienced at least 
     one concussion and almost 35 percent experienced multiple 
     concussions.
       (13) Medical experts at Boston University School of 
     Medicine found that a deceased 18 year old athlete, who had 
     experienced multiple concussions playing high school 
     football, suffered from chronic traumatic encephalopathy, a 
     degenerative brain disease caused by head trauma.
       (14) A football helmet's ability to protect players from 
     injury by attenuating acceleration forces can decline over 
     time as the helmet experiences thousands of hits from use 
     during successive football seasons after its original date of 
     manufacture.
       (15) According to industry estimates, 100,000 football 
     helmets more than ten years old, and thousands almost twenty 
     years old, were worn by players in the 2009 season.
       (16) A high school football player who suffered brain 
     damage from being hit in the head soon after suffering a 
     previous concussion was wearing a twenty year old football 
     helmet when he was injured.
       (17) Children as young as 5 years old rely on football 
     helmets to protect against head injury.
       (18) The widespread adoption of a voluntary industry 
     standard for football helmet safety led to an 80 percent 
     reduction in life-threatening subdural hematoma injuries.
       (19) The voluntary industry safety standard for football 
     helmets does not specifically address concussion risk.
       (20) There is no voluntary industry safety standard 
     specifically for youth football helmets worn by children, who 
     have different physiological characteristics from adults in 
     terms of head size and neck strength, especially those who 
     are younger than 12-years old.
       (21) Some football helmet manufacturers and resellers have 
     used misleading concussion safety claims to sell children's 
     football helmets.
       (22) Some used helmet reconditioners have falsely certified 
     that reconditioned helmets provided to schools and youth 
     football teams met voluntary industry safety standards.
       (23) Used helmet reconditioners do not independently test 
     reconditioned helmets before certifying that they meet 
     voluntary industry safety standards.
       (24) The industry organization that sets voluntary football 
     helmet safety standards does not conduct independent testing 
     nor market surveillance to ensure compliance with such 
     voluntary safety standards by manufacturers and 
     reconditioners that certify new and used helmets to such 
     standards.
       (25) Football helmet manufacturers and reconditioners place 
     product warning labels underneath padding where the warning 
     labels are obscured from view and not clearly legible.
       (26) The Consumer Product Safety Act (15 U.S.C. 2051 et 
     seq.) charges the Consumer Product Safety Commission with 
     protecting the public from unreasonable risks of serious 
     injury or death from consumer products, including consumer 
     products used in recreation and in schools.
       (27) The Federal Trade Commission Act (15 U.S.C. 41 et 
     seq.) empowers the Federal Trade Commission to prevent unfair 
     or deceptive acts or practices, and prohibits the 
     dissemination of misleading claims for devices or services.

     SEC. 3. FOOTBALL HELMET SAFETY STANDARDS.

       (a) Voluntary Standard Determination.--Within 9 months 
     after the date of enactment of this Act, the Consumer Product 
     Safety Commission shall determine, with respect to a standard 
     or standards submitted by a voluntary standards-setting 
     organization regarding youth football helmets, reconditioned 
     football helmets, and new football helmet concussion 
     resistance (if feasible) whether--
       (1) compliance with the standard or standards is likely to 
     result in the elimination or adequate reduction of the risk 
     of injury in connection with the use of football helmets;
       (2) it is likely that there will be substantial compliance 
     with the standard or standards; and
       (3) the standard or standards are maintained by a 
     standards-setting organization that meets the requirements of 
     the document `ANSI Essential Requirements: Due Process 
     Requirements for American National Standards' published in 
     January 2010 by the American National Standards Institute (or 
     any successor document).
       (b) Consumer Product Safety Standard.--Unless the Consumer 
     Product Safety Commission makes an affirmative determination 
     with respect to a standard or standards under subsection (a) 
     that addresses the matters to which the following standards 
     would apply, the Commission shall initiate a rulemaking 
     proceeding for the development of a consumer product safety 
     rule with respect to the following:
       (1) Youth football helmets.--A standard for youth football 
     helmets which is informed by children's different 
     physiological characteristics from adults in terms of head 
     size and neck strength.
       (2) Reconditioned football helmets.--A standard for all 
     reconditioned football helmets.
       (3) New football helmet concussion resistance.--A standard 
     for all new football helmets that addresses concussion risk, 
     if the Commission determines that such a standard is feasible 
     given current understanding of concussion risk and how 
     helmets can prevent concussion.
       (4) Football helmet warning labels.--A standard for warning 
     labels on all football helmets that, at a minimum, requires 
     clearly legible and fully visible statements warning 
     consumers of the limits of protection afforded by the helmet. 
     This standard may include requirements for pictograms, 
     instructions, guidelines, or other cautions to consumers 
     about injury risk and the proper use of football helmets.
       (5) Date of manufacture label for new football helmets.--A 
     standard for a clearly legible and fully visible label on all 
     new football helmets stating the football helmet's original 
     date of manufacture and warning consumers that a football 
     helmet's ability to protect the wearer can decline over time.
       (6) Date of reconditioning label for reconditioned 
     helmets.--A standard for a clearly legible and fully visible 
     label on all reconditioned football helmets stating the 
     helmet's last date of reconditioning, its original date of 
     manufacture, and warning consumers that a football helmet's 
     ability to protect the wearer can decline over time, despite 
     being properly and regularly reconditioned.
       (c) Safety Standards.--
       (1) In general.--The Commission shall--
       (A) in consultation with representatives of coaches, 
     consumer groups, engineers, medical experts, school sports 
     directors, scientists, and sports equipment standard-setting 
     organizations, examine and assess the effectiveness of any 
     voluntary consumer product safety standards for youth 
     football helmets, reconditioned football helmets, and new 
     football helmet concussion resistance proposed by a voluntary 
     standards-setting organization; and
       (B) in accordance with section 553 of title 5, United 
     States Code, promulgate consumer product safety standards 
     that--
       (i) are substantially the same as such voluntary standards; 
     or
       (ii) are more stringent than such voluntary standards, if 
     the Commission determines that more stringent standards would 
     further reduce the risk of injury associated with football 
     helmets.
       (2) Timetable for rulemaking.--If the Commission does not 
     make an affirmative determination under subsection (a) within 
     the 9-month period, the Commission shall commence the 
     rulemaking required by subsection (b) within 30 days after 
     the end of that 9-month period. The Commission shall 
     periodically review and revise the standards set forth in the 
     consumer product safety rule prescribed pursuant to that 
     proceeding to ensure that such standards provide the highest 
     level of safety for football helmets that is feasible.

     SEC. 4. APPLICATION OF THIRD PARTY TESTING AND CERTIFICATION 
                   REQUIREMENTS TO YOUTH FOOTBALL HELMETS.

       (a) In General.--The third party testing and certification 
     requirements of section 14(a)(2) of the Consumer Product 
     Safety Act (15 U.S.C. 2063(a)(2)) shall apply to any youth 
     football helmet (including a reconditioned youth football 
     helmet) to which any consumer product safety rule prescribed 
     under section 3(b) of this Act applies as if the helmet were 
     a children's product that is subject to a children's product 
     safety rule without regard to the age of the individual for 
     whom it is primarily designed or intended.
       (b) Special Application of Definition of Children's Product 
     for Purposes of Testing and Certification of Football 
     Helmets.--For the exclusive purpose of applying

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     the definition of the term ``children's product'' in section 
     3(a)(2) of the Consumer Product Safety Act (15 U.S.C. 
     2052(a)(2)) to the requirements of subsection (a) of this 
     section, ``18 years'' shall be substituted for ``12 years'' 
     each place it appears.
       (c) For the purposes of this section, third party testing 
     and certification shall be conducted by a testing laboratory 
     that has an accreditation--
       (1) that meets International Organization for 
     Standardization/International Electrotechnical Commission 
     standard 17025:2005 entitled General Requirements for the 
     Competence of Testing and Calibration Laboratories (or any 
     successor standard that is from an accreditation body that is 
     signatory to the International Laboratory Accreditation 
     Cooperation for testing accreditation);
       (2) that meets International Organization for 
     Standardization/International Electrotechnical Commission 
     Guide 65:1996 entitled General Requirements for Bodies 
     Operating Product Certification Systems (or any successor 
     standard that is from an accreditation body that is signatory 
     to the International Accreditation Forum for product 
     certification accreditation); and
       (3) that includes all appropriate football helmet standards 
     and test methods within the scope of the accreditation.

     SEC. 5. FALSE OR MISLEADING CLAIMS WITH RESPECT TO ATHLETIC 
                   SPORTING ACTIVITY GOODS.

       (a) In General.--It is unlawful for any person to sell, or 
     offer for sale, in interstate commerce, or import into the 
     United States for the purpose of selling or offering for 
     sale, any item of equipment intended, designed, or offered 
     for use by an individual engaged in any athletic sporting 
     activity, whether professional or amateur, for which the 
     seller or importer, or any person acting on behalf of the 
     seller or importer, makes any false or misleading claim with 
     respect to the safety benefits of such item.
       (b) Enforcement by Federal Trade Commission.--
       (1) In general.--Violation of subsection (a), or any 
     regulation prescribed under this section, shall be treated as 
     a violation of a rule under section 18 of the Federal Trade 
     Commission Act (15 U.S.C. 57a) regarding unfair or deceptive 
     acts or practices. The Federal Trade Commission shall enforce 
     this Act in the same manner, by the same means, and with the 
     same jurisdiction, powers, and duties as though all 
     applicable terms and provisions of the Federal Trade 
     Commission Act (15 U.S.C. 41 et seq.) were incorporated into 
     and made a part of this Act.
       (2) Regulations.--Notwithstanding any other provision of 
     law, the Commission may promulgate such regulations as it 
     finds necessary or appropriate under this Act under section 
     553 of title 5, United States Code.
       (3) Penalties.--Any person who violates subsection (a) or 
     any regulation prescribed under that section, shall be 
     subject to the penalties and entitled to the privileges and 
     immunities provided in the Federal Trade Commission Act as 
     though all applicable terms and provisions of the Federal 
     Trade Commission Act were incorporated in and made part of 
     this Act.
       (4) Authority preserved.--Nothing in this section shall be 
     construed to limit the authority of the Commission under any 
     other provision of law.
       (c) Enforcement by State Attorneys General.--
       (1) Right of action.--Except as provided in paragraph (5), 
     the attorney general of a State, or other authorized State 
     officer, alleging a violation of subsection (a) or any 
     regulation issued under that section that affects or may 
     affect such State or its residents may bring an action on 
     behalf of the residents of the State in any United States 
     district court for the district in which the defendant is 
     found, resides, or transacts business, or wherever venue is 
     proper under section 1391 of title 28, United States Code, to 
     obtain appropriate injunctive relief.
       (2) Initiation of civil action.--A State shall provide 
     prior written notice to the Federal Trade Commission of any 
     civil action under paragraph (1) together with a copy of its 
     complaint, except that if it is not feasible for the State to 
     provide such prior notice, the State shall provide such 
     notice immediately upon instituting such action.
       (3) Intervention by the commission.--The Commission may 
     intervene in such civil action and upon intervening--
       (A) be heard on all matters arising in such civil action; 
     and
       (B) file petitions for appeal of a decision in such civil 
     action.
       (4) Construction.--Nothing in this section shall be 
     construed--
       (A) to prevent the attorney general of a State, or other 
     authorized State officer, from exercising the powers 
     conferred on the attorney general, or other authorized State 
     officer, by the laws of such State; or
       (B) to prohibit the attorney general of a State, or other 
     authorized State officer, from proceeding in State or Federal 
     court on the basis of an alleged violation of any civil or 
     criminal statute of that State.
       (5) Limitation.--No separate suit shall be brought under 
     this subsection if, at the time the suit is brought, the same 
     alleged violation is the subject of a pending action by the 
     Federal Trade Commission or the United States under this 
     section.
                                 ______