Although differences between the House and Senate still exist, Congress is moving toward a bipartisan agreement on major reforms to the Consumer Product Safety Commission (CPSC). Bills from each chamber need to be reconciled, but if Congress can agree on a single proposal, it will set up a showdown with the Bush administration over new provisions intended to expand consumer protections by revitalizing the CPSC.

On March 6, the Senate passed the Consumer Product Safety Commission Reform Act (S. 2663) by a veto-proof margin of 79-13. Among the bill's ten cosponsors were two Republicans, Sens. Susan Collins (R-ME) and Ted Stevens (R-AK), marking a significant change from December 2007 when not one Republican cosponsored similar legislation.

The House passed its version of CPSC reform in December 2007 (H.R. 4040), but the Senate was unable to move its companion bill because of a lack of bipartisan agreement. These efforts came amidst a record year for recalls of toys, pet food, tires, and other products.

Both bills increase funding and staffing for CPSC and expand the number of commissioners from three to five. The House version expands the agency's budget to $80 million in FY 2009 and $100 million in FY 2011 but does not authorize funding beyond that year. The Senate bill calls for $88.5 million in FY 2009 and then increases the budget by ten percent per year through FY 2015.

S. 2663 is considerably stronger than the House bill in significant ways. For example:

• The cap on civil penalties for those violating the law increases to $20 million (from the current $1.8 million level), twice the level in the House bill
• All children's products have to pass third-party safety certification before they can be marketed. The House bill subjects only CPSC-approved products aimed at children 12 years and under to third-party testing
• The Senate bill establishes a public database to report on injuries, illnesses, and the risks associated with consumer products from consumers, government agencies, health care providers, and others. H.R 4040 calls for a CPSC study to plan for a database
• Employees of manufacturers and the CPSC who blow the whistle on supply chain problems or hazards receive protections to encourage the flow of information to the CPSC about harmful products. The House bill does not contain a whistleblower protection provision
• State attorneys general would be able to enforce CPSC's rules, standards, orders, recalls, and certifications when they determine there is potential harm from a product. Like the database, this provision allows additional information to be collected and action taken, such as removing recalled products from store shelves. The House bill only allows state attorneys general to use injunctions to enforce any rule involving a mandatory recall; CPSC recalls are voluntary, however

In a March 3 Statement of Administration Policy (SAP), the White House strongly objected to the expanded powers for state attorneys general contained in the Senate bill. The statement argued enforcement should remain the province of the CPSC, which currently relies on input from state and federal agencies about product issues. In addition, the statement raised the specter of a "confusing patchwork of safety standards that will make it impossible to enforce uniform, national policies" if state attorneys general are allowed to interpret what constitutes violations of CPSC policies.

The administration's objections parallel those raised by industry groups, according to a March 14 BNA article (subscription). The major concern expressed by business representatives quoted in the article and in the White House's policy statement is that additional time and money will be spent on litigation if states have this expanded enforcement authority. According to the article, however, if the CPSC has initiated its own action for rules violations, a state attorney general cannot bring action while the CPSC's action is pending.

Consumer advocacy groups support the state level enforcement powers. They argue the stronger enforcement provisions could keep unsafe products off the market and thereby reduce litigation, and that having states actively supporting CPSC's regulatory authority helps a poorly staffed and funded agency perform its functions better by providing additional "cops on the beat."

The White House also objects to the whistleblower protections and the public database, among other provisions included in S. 2663. The SAP states preferences for some provisions of the House bill over parallel Senate provisions, but stops short of threatening a veto.