[Congressional Record (Bound Edition), Volume 154 (2008), Part 13] [SENAT] [Pages 17647-17659] [From the U.S. 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 [[Page 17648]] 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 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. [[Page 17649]] 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. 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. [[Page 17650]] 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 $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. [[Page 17651]] 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 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 [[Page 17652]] 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 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 [[Page 17653]] 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 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 [[Page 17654]] 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 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 [[Page 17655]] 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. 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: [[Page 17656]] 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. 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, [[Page 17657]] 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 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. [[Page 17658]] 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. 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 [[Page 17659]] 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. ____________________