So I guess you could put this stuff in the real oven and burn it to a crisp. But wait. There's more from the New York Times:

In 2007, the U.S.D.A.’s inspection of the ConAgra plant in Missouri found records that showed some of ConAgra’s own testing of its directions failed to achieve “an adequate lethality” in several products, including its Chicken Fried Beef Steak dinner. Even 18 minutes in a large conventional oven brought the pudding in a Kid Cuisine Chicken Breast Nuggets meal to only 142 degrees, the federal agency found.

Well, not to worry, if your child uses face paint from Oriental Trading and experiences "rashes, itchiness, burning sensation, and swelling where the face paints were applied" it is merely what the FDA calls an "adverse event." "Significant microbial contamination was indicated in most of the products in testing by an FDA laboratory." Recall info here.

The latest advertisement from the PIRG-backed Smoke Free Movies campaign run by Professor Stan Glantz at UCSF Medical School:

Last year, two-thirds of the billions of tobacco impressions that top movies delivered to theater audiences were rated PG-13. Twelve billion tobacco impressions rated PG-13. In 2007, the major studios’ trade group, the MPAA, announced it was going to “consider” smoking in ratings. Today, the PG-13 films that adolescents see most often have become the biggest part of the smoking problem.

Today the President nominated Inez Moore Tenenbaum as Chair of the Consumer Product Safety Commission (CPSC) and Robert S. Adler as a new Commissioner of the Consumer Product Safety Commission. Bob's position would be part of the expansion from 3 to 5 commissioners that officially takes effect in August under the 2008 Consumer Product Safety Improvement Act. Our statement generally supporting the nominations is here. (Our board has to vote for us to formally support any judicial or administrative nominees.) We don't know Inez Tenenbaum but hear good things. And, as a plus, she's not Nancy Nord, the longtime Bush caretaker over at the CPSC who has opposed reforms and opposed more money from Congress. We do know Bob Adler, a former CPSC and Hill staffer and longtime Consumers Union board member who now is a professor at UNC-Chapel Hill. Those are all good things on his resume. We are pleased the President is making the rebuilding of the CPSC a priority.

The CPSC and Jardine have announced a second expansion of a previous crib recall; its part of a wave of dangerous crib recalls -- the number of recalls of sloppily made, dangerous cribs is astonishing: Jardine Announces Second Recall Expansion of Cribs Sold by Babies'R'Us; Cribs Pose Entrapment and Strangulation Hazards. More on crib safety from Kids In Danger. Also, in what I think is a first of its kind recall, CPSC and Under Armour have recalled men's athletic cups, as "The cups can break if hit, posing a risk of serious injury hazard to athletes. Under Armour has received five reports of cups breaking, including an injury involving cuts and bruising."

You're probably tired of hearing about the tedious campaign that the big toy and chemical industries, cleverly fronted by small "bidness" organizations, are running against the landmark Consumer Product Safety Improvement Act of 2008 (CSPIA). Heck, they even had a 2-hour press conference last week (on April Fool's Day, no less) that they managed to call a "rally." But if you want some good updates about what is wrong with the "facts" behind their campaign, one place to look is over at the Pop Tort blog run by our colleagues at the Center for Justice and Democracy up in NYC. Pop Tort is worth checking out-- they also regularly comment on other important civil justice and consumer safety issues. Excerpt from another Pop Tort blog, quoting a Consumers Union analysis:

Some who spoke at today’s rally, including Toy Industry Association President Carter Keithley, claimed that there are no health impacts from lead in toys. Others who spoke suggested that adult clothing was covered by the law, which is not the case. The lead testing restrictions apply only to children’s products.

UPDATE: The CPSC has issued guidance on complying with the 10 February phthalate ban. It also says it will comply with the court order (thanks, CPSC!). CPSC has also issued enforcement guidelines for lead, which lay out in detail the myriad safe harbors that will protect small manufacturers and second-hand stores in their efforts to comply with the law. The new enforcement guideline makes abundantly clear that rollback proposals by Sen. Jim DeMint (R-SC) and now Robert Bennett (R-UT) are unnecessary and should be rejected by Congress. We've said all along that all we needed was for the CPSC to do its job and explain the new law.

Original post yesterday: As expected by anyone who can read black letter law in plain language, a US district judge has ruled for Public Citizen and NRDC in their lawsuit against a CPSC advisory opinion using a tortured legal analysis in a manufacturer-backed attempt to delay implementation of the February 10 ban on the manufacture, distribution, sale or entry into commerce of toys containing dangerous toxic phthalate chemicals. AP via New York Times. Action continues on Capitol Hill, where Senator Jim DeMint (R-SC) persists in efforts to rewrite and gut broad provisions of the 2008 product safety law's impact on lead, phthalates and other hazards to children and others with a proposed and PIRG-opposed amendment to the recovery package.

UPDATE: THE CPSC RELEASE: Excerpt:

Sellers of used children’s products, such as thrift stores and consignment stores, are not required to certify that those products meet the new lead limits, phthalates standard or new toy standards. The new safety law does not require resellers to test children’s products in inventory for compliance with the lead limit before they are sold.

ORIGINAL POST: The CPSC is expected to issue a release today in response to a growing number of complaints from small toymakers and second-hand and consignment stores that it has failed to explain how to comply with new limits on lead in toys and children's products that take effect on 10 February. Yesterday, U.S. PIRG and other leading groups sent a letter to the CPSC demanding clarification. Austin American-Statesman story today. NBC17 (Durham, NC) with video. Los Angeles Times story. Our previous blog. While some elements of the toy industry campaign appear responsible and seeking clarification, some opponents of the important new law are using hysteria to rev up the issue, referring to 10 February as "National Bankruptcy Day" and the need to stop the new "supercharged" CPSC's "toy police." Excerpt from our consumer letter:

The vacuum of implementation information, as well as the proliferation of misinformation regarding actual testing requirements and the cost of testing is leading to confusion and fear. The public counts on the CPSC to protect them from dangerous products. Now CPSC must take the initiative to allay their fears by providing prompt, common-sense, and explicit interpretations regarding exemptions to CPSIA stipulations, guidance as to the realistic cost of testing, and education regarding compliance with the CPSIA for retailers, including thrift and consignment stores.

In today's editorial A Voice for the Consumer, the New York Times backs the recent call by U.S. PIRG, the Consumers Union, the Consumer Federation of America and other leading groups to restore the long dormant White House Office of Consumer Affairs. From the NYT:

The time has come to give the American consumer a much stronger voice in Washington. President-elect Barack Obama has already named what amounts to an energy and environmental czar in the White House, and America’s beleaguered consumers deserve no less.[...] Presidents Johnson and Carter both recognized the need for a strong person to do that job. Both chose Esther Peterson, who during about eight years in office pushed for then-radical ideas like nutritional labeling on food and truth in advertising. As the Reagan anti-government era began, the consumer protection job steadily lost clout until it was shuttered in the late 1990s.

Read the details here:
1. Restore the United States Office of Consumer Affairs; Put a Consumer “Czar” In The White House.
2. Rein in Wall Street Excesses, Protect Consumers from Abusive and Predatory Lending.
3. Protect Consumers from Price-Gouging in Oil, Gas and Electricity Markets, and Take Steps To Provide Households With Access to Alternative Energy and Efficiency.
4. Improve Consumer Access to Justice By Reinstating Legal Rights.
5. Guarantee Safe, High Quality, Affordable Healthcare for Everyone.
6. Ensure our Food and Products are Safe.

This one makes the dumber than dirt blog category: From the CPSC:
Faulty Instructions Prompt Recall of Electrical Wiring How-to-Books by The Taunton Press; Shock Hazard to Consumers

Hazard: The books contain several errors in the technical diagrams that could lead consumers to incorrectly install or repair electrical wiring, posing an electrical shock hazard to consumers.

The CBS Early Show did a story (watch video and read story) on the CPSC's decision to delay a Congressional ban on toxic phthalates in toys yesterday featuring U.S. PIRG Public Health Advocate Liz Hitchcock. Previous blog has details on lawsuit by allies Public Citizen and NRDC seeking to enforce the law.

In case you missed it, this weekend Saturday Night Live Weekend Update anchor (and Hillary Clinton impersonator) Amy Poehler, just back from having a baby herself, gave another SNL shoutout to PIRG's annual Trouble In Toyland reports--

POEHLER: "The New York Public Interest Research Group said this week that one in three popular children's toys contain hazardous chemicals such as lead, arsenic and mercury. The worst: 'I Don't Feel So Good Elmo.'"

We're proud to have had our work hit a few other popular shows over the years. "What are balloons?" was once the Final Jeopardy answer (in a special kids' tournament on the show) to the question: "PIRG finds these to be the worst choking hazard." And about 6-7 years ago, the plot of Law & Order featured a visit to NYPIRG's offices after the murder of a NYPIRG intern who'd been conducting an investigation into dangerous practices. The late actor so associated with the show, Jerry Orbach, uttered the immortal (to us, anyway) line: "NYPIRG? What's that?"

Our colleagues at the Michigan-based Ecology Center have released their latest list and searchable database of toxic toys at their site healthytoys.org. They use an XRF gun, which is an excellent (but expensive) screening device for lead and other toxic heavy metals that's being rolled out by a number of manufacturers. CPSC inspectors and state officials are also using them. Excerpt from the Ecology Center release:

The Ecology Center determined that 1/3 of the toys they tested had "high" or "medium" levels of chemicals of concern this year. Lead was found in 20 percent of the toys tested, including 54 products (3.5 percent) that exceeded the 600 parts per million (ppm) state legal limit set last year and 164 (10.7 percent) above the American Academy of Pediatrics recommended ceiling of 40 ppm. Children's jewelry remains the most contaminated product category. "There is simply no place for toxic chemicals in toys," said Mike Shriberg, Ph.D., Ecology Center's Policy Director.

Arthur Bryant, executive director of the public interest law firm Public Justice, has a good editorial America's access to justice at risk in today's Trenton (NJ) Times. It's about the myriad threats to access to justice posed by a three-pronged attack by corporate lobbyists:

They are using many tactics, but three are critical -- federal preemption, mandatory arbitration, and class action bans. If these three succeed, most Americans can kiss many of their rights goodbye.

Anny Shin reports in today's Washington Post that the CPSC says that Some Toys With Banned Plastics Will Stay on Market. We don't think so. The story is based on a letter opinion to industry lawyers from Consumer Product Safety Commission general counsel Cheryl Falvey who says essentially that because consumer product safety standards have previously been interpreted to apply only to products manufactured after a ban date, that it's ok to keep selling inventory stocks of toys laden with toxic phthalates after the February 2009 ban on toxic phthalate chemicals kicks in. Funny thing is that Falvey's letter ignores and does not even discuss the bold-face underlined words in Section 108 of the new statute that says:

Beginning on the date that is 180 days after the date of enactment of this Act, it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children's toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).

We've written before on what is worse than a consumer pet peeve. Thousands of consumers are injured seriously enough to go to the emergency room each year trying to open nasty hard plastic "clamshell" packaging intended to deter shoplifters. In today's New York Times, Brad Stone and Matt Richtel report on the possible end to "wrap rage" in their story Latest Marvel: Packages That Open Without a Saw.

There is a free symposium from 9am-2pm tomorrow Friday at American University Law School. The symposium is called Dangerous Products: From Lead Toys to Tainted Drugs, A Discussion for Consumer Protection Professionals and the Media. It's co-sponsored with the American Association for Justice and is in Room 603 of the AU Law School, 4801 Massachusetts Avenue, NW - Washington, DC 20016 -- 202-274-4000. Here is the agenda. Among the highlights-- two professors will discuss new papers: The Social Costs of Dangerous Products: An Empirical Investigation, by Prof. Sidney Shapiro of Wake Forest School of Law, and Unavailable and Unaccountable: A Free Ride for Foreign Manufacturers of Defective Goods, by Prof. Andrew F. Popper of American University Washington College of Law.

The Center for American Progress Action Fund and the New Democracy Project have released a joint book with recommendations for the new administration. The book Change for America has several sections available online here. Among these is the chapter CPSC: Safety First written by Pamela Gilbert, who was executive director of the agency under President Bill Clinton; Pamela is a longtime public interest attorney who has also worked both at U.S. PIRG and Public Citizen. From her report summary:

The Consumer Product Safety Commission over the past eight years was run by political appointees who let the agency languish, promulgating few new regulations, announcing few new programs, and rolling back existing rules.

The most important thing that the new president must do to restore confidence in the safety of consumer products is to appoint a chair of the CPSC who has a proven commitment to consumer safety—not industry preferences. He or she should quickly address the shortage of experienced staff and low staff morale, follow through on congressionally mandated improvements to the agency’s authorities and testing laboratory, and establish new partnerships to enable it to do more with its limited resources. CPSC must also address new challenges, including the meteoric rise in imports of unsafe consumer products and any hazards associated with new technologies, such as nanotechnology.

In today's New York Times Magazine, Gardiner Harris explains in a detailed story that the once gold-standard U.S. FDA has a growing "Safety Gap". He argues that the FDA is under-funded, that it hasn't kept up with the globalization of commerce, and that it cannot protect us from dangerous products, especially those from China:

But are the Chinese factories safe? Who knows? [...] China has in recent years exported poisonous toothpaste, deadly dog food, toys made with lead paint and tainted fish. In one infamous example this spring, Chinese manufacturers substituted a cheap fake for the dried pig intestines used to make the drug heparin, which is given to dialysis and surgery patients to prevent blood clotting. [...] The F.D.A. regulates more than $1 trillion worth of consumer goods, which amounts to about 25 cents of every consumer dollar spent in this country. This includes $466 billion in food sales, $275 billion in drugs, $60 billion in cosmetics and $18 billion in vitamin supplements.[...] Even the F.D.A.’s staunchest defenders now acknowledge that something is terribly wrong.

Consumers Union, publisher of Consumer Reports, has written FDA Commissioner Andrew C. von Eschenbach to demand action on potentially harmful and deceptively marketed nanoparticles in sunscreen:

New findings published in Consumer Reports today confirm that use of certain nanoparticles is widespread in mineral-based sunscreens, and that company representatives are making erroneous assertions about these particles in their products.[...] Thus, our two test projects suggest that use of nanoparticles of titanium dioxide and/or zinc oxide in mineral-based sunscreens is widespread and that consumers will generally not be able to avoid exposure by buying mineral-based products that manufacturers say do not contain nanoparticles.

The CPSC has issued an urgent safety warning to all parents with cribs to check for shoddy hardware or design that could lead to hazards for their infants. The agency especially singles out "drop-side" cribs. The agency's announcement was prompted by two deaths in Delta Enterprise cribs. The CPSC announced that Delta Enterprise has agreed to recall 985,000 cribs for replacement of a missing safety peg and an additional 600,000 cribs for other drop-side hazards.

In Melanie Trottman's story in the Wall Street Journal (pd. subs. req'd):

Some consumer advocates say the CPSC's action is long overdue, and say at least some of the cribs involved in the latest string of recalls were certified by the Juvenile Products Manufacturers Association, a U.S. trade group whose stamp of approval can lead consumers to believe a product is safe. "Clearly something in the voluntary standards is not catching these serious flaws," said Nancy Cowles, executive director of Kids in Danger, a Chicago child-safety advocacy group.

The recalls follow highly-publicized massive recent recalls of Simplicity cribs following at least two other deaths. That process was slowed and complicated by the bankruptcy of Simplicity; the private equity firm that had purchased its assets claimed no responsibility for its liabilities.

Provisions in the new Consumer Product Safety Improvement Act will subject durable nursery products, including cribs, to mandatory standards and stricter enforcement, following years of consumer groups at loggerheads with the crib manufacturers, their lobbyists, their lawyers, their associations and even the independent standards development firms such as ASTM that develop the voluntary standards now in use, as Annys Shin points out in her Washington Post story:

Consumer advocates have tried unsuccessfully for much of the past decade to get ASTM to develop a more comprehensive durability standard, said Donald Mays, senior director of product safety for Consumers Union.

From the Wall Street Journal (pd. subs. req'd.):

In 2002, Angela Crespo, then Neurontin's senior marketing manager, emailed an outside firm that was contracted to write up the study's results: "We are not interested at all in having this paper published because it is negative!!" Pfizer declined to make the three employees in the emails available for interviews.

From the New York Times story Experts Conclude Pfizer Manipulated Studies by Stephanie Saul:

The drug maker Pfizer earlier this decade manipulated the publication of scientific studies to bolster the use of its epilepsy drug Neurontin for other disorders, while suppressing research that did not support those uses, according to experts who reviewed thousands of company documents for plaintiffs in a lawsuit against the company.

Merck had hired ghostwriters to produce scientific articles about Vioxx, then recruited prestigious doctors to serve as their official authors. [...] Last winter, Merck and Schering-Plough were criticized for delaying the release of a study on their best-selling cholesterol medication Vytorin...

Despite the products’ extraordinary popularity, every study performed in recent years shows that they have no therapeutic effect beyond sedation, and a growing number of reports have concluded that they can be dangerous.

Updated and name corrected In recalled-crib-company collapse news, Michael Greenwald Rosenwald (oops, also Annys Shin contributed) of the Washington Post has a story on Blackstreet, the private equity firm and parent of SFCA, which says it bought Simplicity's assets, but not its liabilities. The cribs had been recalled (previous blog) due to the deaths of several infants. From the Post story A Test of Blackstreet's Strategy: [Blackstreet founder Murry]

Gunty declined to speak in detail about the bassinet issue, saying only: "With respect to Simplicity, I'm the father of three young kids, and I cannot imagine the loss these families have suffered. It's very tough, and we want to do the right thing here." Blackstreet's lawyers have argued that it bought only Simplicity's assets, not its liabilities, even though government officials are seeking "all legal remedies" against the company. Asked several times what the "right thing" was, Gunty would say only, "It's a very tough situation, and we want to do the right thing."

Here's the final paragraph of the story, with some incredible quotes from Mr. Ray Rice, an investor in the Blackstreet firm:

Rice, for one, is not overly concerned about Blackstreet's potential liability. While he said it is a "terrible, terrible, terrible tragedy when somebody loses a baby" -- he has grandchildren -- Rice also stressed that he didn't think Blackstreet had any liability. "I don't think I'm exposed to a darn thing," Rice said. "I don't think the fund is exposed." But even if the Simplicity deal does turn bad -- if people stop buying the products altogether -- Rice said, "If Simplicity gets wiped out and the equity gets wiped out, it's just a loss."

In some good (and non-Wall Street bailout-related) news, Public Citizen attorney Brian Wolfman explains over at the Consumer Law and Policy blog that consumer groups have prevailed over the Bush administration in federal court. Public Citizen, Consumers for Auto Reliability and Safety, and Consumer Action sued the Department of Justice over its 15-year unlawful delay in establishing a used vehicle database.

The purpose of the database is to enable consumers to check the validity of a car's title and odometer reading and learn whether the car has been stolen or severely damaged.

The CPSC has recalled 600,000 more cribs made by Simplicity. According to the Washington Post story by Annys Shin, the previously recalcitrant SFCA, the private equity fund that acquired Simplicity's assets, is cooperating with retailers this time (previous recall where it did not) although this is not mentioned in the CPSC release. According to the Post: "the drop side can come off, creating a gap where infants and toddlers can become trapped and be strangled..."

Retailers include:

AAFES, of Dallas, Texas
Babies“R”Us, of Wayne, N.J.
Burlington Coat Factory/Baby Depot, of Burlington, N.J.
K’s Merchandise (out of business)
Meijer Distribution Inc., of Grand Rapids, Mich.
Nebraska Furniture Mart, of Omaha, Neb.
ShopKo, of Green Bay, Wis.
Target, of Minneapolis, Minn.
Wal-Mart Stores Inc, of Bentonville, Ark.

Annys Shin of the Washington Post is reporting in a story Tighter Lead Rule for Kids' Items that the CPSC will announce today Monday a legal opinion that confirms that the new Consumer Product Safety Improvement Act requires that all children's products containing lead in amounts greater than 600 ppm must be off the shelves by February, and will require that product previously manufactured and in inventory be destroyed. The bad news is that at a recent public meeting, the CPSC all but told industry lawyers and lobbyists that -- (paraphrase) "except for toys with toxic lead (and probably also toxic phthalates) where that pesky Congress has boxed us in, not to worry as we intend to go out of our way and interpret all other effective dates for all new product standards as loosely as possible, so you can keep on selling dangerous products you've already made." I noted this pro-industry slant in my blog after that meeting, as did Annys Shin in her blog. Page 11 of this CPSC slideshow from that meeting explains the rationale for lead and phthalates; previous pages explain why other dangerous products may be treated with less deference to safety.

After years of delay, today the U.S. National Highway Traffic Safety Administration finally opened a cranky, clunky but still helpful version of its public Early Warning database at Safercars.gov. Public Citizen has long advocated the reform. From its release and statement by its president and former NHTSA Administrator Joan Claybrook:

Auto manufacturers have been submitting this important data on deaths, injuries, damage claims and possible defects since 2003 but NHTSA kept it secret in violation of the law. Public Citizen was instrumental in pushing Congress in the 2000 Transportation Recall Enhancement, Accountability, and Documentation Act, or TREAD Act, to require reporting of early warning data after NHTSA failed to identify the defects in the Firestone tire/ Ford Explorer rollovers. NHTSA’s action today falls short of complying with the spirit of the law.

In an exclusive, the Chicago Tribune's Patricia Callahan, one of the nation's leading CPSC watchdog reporters, finds that Feds, Graco withheld bassinet warning:

The U.S. Consumer Product Safety Commission botched the recall of the Simplicity bassinets, telling some American families that they should not put their babies to sleep in the bassinets while allowing others to continue placing their infants in a potentially deadly product.

Federal safety regulators and Graco Children's Products knew two weeks ago that bassinets sold under the Graco name had the same dangerous design that caused two babies' deaths but did not alert the public as part of a larger recall, the Tribune has found.

"Oh, my God," said Cara Smith, Illinois Atty. Gen. Lisa Madigan's deputy chief of staff, who has been investigating the bassinets. "What possible reason would you not get that information out? Utter disregard for the safety of babies. They sat on that information while people continued to use these bassinets believing they were safe."

The CPSC has a new gateway webpage for all things - rulemakings, comment deadlines, notices and more -- related to the implementation of the landmark Consumer Product Safety Improvement Act (CPSIA). Since the new law has some very tight regulatory timelines, the page also allows you to sign up for either an old-school email list or a more modern Web 2.0 RSS feed to learn about updates to the page.

Annys Shin has a followup story in today's Washington Post on the Simplicity bassinet recall that SFCA -- which owns Simplicity's assets -- has refused to participate in, claiming it is not liable. Previous blog. SFCA is a unit of the private equity fund Blackstreet and claims it is not a successor company under the law:

In April, SFCA bought Simplicity's assets at auction. At the time, SFCA was aware of Simplicity's recall of 1 million cribs and voluntarily set aside resources to continue carrying it out. A May news release from Blackstreet said: "The Simplicity brand is well known for its exceptional value, innovative design and unparalleled focus on safety."

I just left some of my consumer colleagues at the second half of an all day CPSC seminar on the implementation of the landmark CPSC Improvement Act. The event is being held in an auditorium at the Commerce Department downtown. The building is named for Herbert Hoover but seemed older than that. In addition to the scant ten of us, the other 400 plus seats were full of industry lobbyists. Most of the questioners from the industry seemed to be asking the CPSC to interpret the law in a way that would allow them to keep selling existing but soon-to-be non-compliant inventory. In addition, one CPSC official seemed to directly suggest that for certain products that would become banned hazardous substances six months after August 14 (when the President signed the bill) it would be best to leave the room and book some containers on ships for export as soon as possible.

My analysis is that the CPSC's regulatory culture has always leaned toward interpreting the law prospectively -- that is, in favor of reading newer, more stringent laws to only apply to future products -- but that in some of the important provisions of the CPSC Improvement Act it is clear that the Congress did not intend them to continue to do that. Nevertheless, I got the sense by the tone of many of the agency comments -- and I hope I am wrong -- that they appear ready to bend over backwards wherever possible to find a tortured statutory interpretation that is favorable to continued sale of existing but-soon-to-be-non-compliant inventory.

Following yet another death related to Simplicity bassinets, the CPSC yesterday gave consumers an extraordinary alert of the hazards and also cautioned that the private equity firm SFCA, which had earlier this year purchased Simplicity's assets, was refusing to participate in a recall of the dangerous products. Fortunately, six major retailers agreed to cooperate with the CPSC and are withdrawing the dangerous products from the market.

According to Annys Shin's story in today's Washington Post, the private equity firm SFCA bought the assets of Simplicity in a way that does not make it liable:

Legal experts said SFCA is not obligated to comply with the CPSC's request to do a recall because of the way its purchase of Simplicity's assets was structured. "The reason to buy assets is to not incur liabilities," said Barry Barbash, a partner and head of the asset management group at law firm Willkie, Farr, Gallagher.

Yesterday, the CPSC issued an imminent hazard warning after SFCA, the new owner of previously recalled [Oct 2007]Simplicity bassinets, refused to participate in a voluntary recall.

This is the second strangulation death CPSC has learned of in the co-sleeper bassinets. On September 29, 2007, a 4-month-old girl from Noel, Mo. became entrapped in the metal bars of the bassinet and died. CPSC is issuing this safety alert because SFCA Inc., the company which purchased all of Simplicity Inc.’s assets at public auction in April 2008, has refused to cooperate with the government and recall the products. SFCA maintains that it is not responsible for products previously manufactured by Simplicity Inc.

"using its new authorities in the Consumer Product Safety Improvement Act, to release this warning upon making a finding that the health and safety of the public require immediate notice."

This morning the President signed the landmark CPSC Reform Act. Link to our news release; link to Marketwatch.com with details; Washington Post Checkout blog; ABC news; AP wire; Bill sponsor Senator Mark Pryor's release. Our toy safety pages. Here are many of the highlights, from Marketwatch:

Ed Mierzwinski, consumer program director with U.S. Public Interest Research Group, said highlights of the law are the phthalates ban, the public database that reverses the CPSC's "longstanding culture of secrecy," and the added testing for toy hazards and certification for children's products. "These broad new protections are all in addition to doubling the agency's funding over five years, adding staff, increasing its civil-penalty authority and adding other tools to prevent dangerous imports and hold wrongdoers accountable," Mierzwinski said. "Finally, the bill preserves state toxic hazard warning laws and retains broad powers of state attorneys general to act as tough consumer cops, despite industry efforts to weaken their authority."

According to numerous sources not including the White House, the President is expected to sign the landmark product safety reform legislation this morning (without a ceremony), if he hasn't already.

The executive branch watchdog group known as OMBWatch has a summary of the new CPSC Reform Act available. We expect that the president will sign the bill this week when he returns from the Olympics. The OMBWatch story links to its earlier analysis Product Safety Regulator Hobbled by Decades of Negligence, a useful summary of the agency's history by the numbers.

After years of trying to convince consumers, farmers and retailers that "every body needs" its genetically-modified artificial hormones known as rBGH/rBST in their milk, came yesterday's stunning announcement: Monsanto Looks to Sell Dairy Hormone Business (New York Times).

According to a fact sheet from allies at the Center for Food Safety:

Since these products are not labeled as containing rBGH / rBST, most consumers have no idea that a growth hormone intended to induce dairy cows to be more productive is in much of their milk, cheese, and yogurt. After approving the use of rBGH in 1993, the Food and Drug Administration has turned a deaf ear to the pleas of consumers, food safety organizations and scientists to reverse its approval of the hormone, or to simply require labeling of foods containing rBGH.

On Friday, House Speaker Nancy Pelosi (D-CA) and Senate Leader Harry Reid (D-NV) were kind enough to invite us to the enrollment ceremony for the CPSC Reform Act. They are pictured here signing the official enrolled copy of the bill before sending it to the president. Behind them from left are Diane Beedle (and her partially hidden son Frankie), Senator Mark Pryor (D-AR), Rep. Jan Schakowsky (D-IL) and Rep. Rosa DeLauro (D-CT). Diane was a longtime staffer for Jan Schakowsky, a conferee and longtime product safety champion who authored several sections of the bill, including Section 104, the Danny Keysar Child Product Safety Notification Act, named for a little boy who died ten years ago when a previously recalled crib collapsed around him. Senator Pryor, of course, was the chief sponsor of the Senate-passed bill. Rep. DeLauro was chief sponsor of HR 3691, a predecessor bill that had 167 co-sponsors and helped set the path for reform. The Speaker is wearing a yellow, U.S. PIRG "Safer Toys, Safer Kids" button.

The second photo, taken after the signing, shows most of the DC-based consumer advocates (we had a lot of others working around the country!) and some of the hill staff who worked together on the bill. People look happy for two reasons. First, Congress enacted a good, strong, comprehensive piece of legislation. Second, just like that song I Was Country When Country Wasn't Cool, a lot of us in that picture have worked on CPSC reform and product safety a long time. We were product safety when product safety wasn't cool. We're glad that Congress has made product safety and consumer protection cool.

In 1994, Congress had enacted its last incremental (but important) reforms to the CPSC. But the new law is without doubt the most significant reform of the CPSC since its creation in 1973. It reauthorizes the CPSC for five more years, doubles its last Bush-requested budget and takes major steps to enhance its ability to protect the littlest consumers and everyone else, too. It creates a new statutory framework to guarantee the safety of all toys and children's products. It reverses decades of wrong-way U.S. toxics policy by banning phthalates in children's products until (if and when) they are proven safe. It is overdue, long-awaited landmark legislation.

For years, the CPSC had been neglected while the NAM (its letter of capitulation from last week), the Toy Industry of America, the American Chemistry Council (aka, Chemical Manufacturers of America) and the U.S. Chamber of Commerce (its letter of defiance from last week) worked to put it out of business. The new law rejects their wrong-headed multi-decade effort (begun in the Reagan Administration) to dismantle the agency. That plan came to a screeching halt in 2007, the Year of the Recall. We expect the president to sign the CPSC Improvement Act of 2008 later this week. Photos by Erin Wingo, U.S. PIRG.

I've uploaded the CPSC Conference Report (House Report 110-787 at 221kb), with final law language and, at the end, explanatory conference report language. You can also get it here from the source, but I am never clear on how permanent some of these Thomas queries are.

The New York Times, in an editorial today, The President and Product Safety, urges the President to sign the CPSC Reform bill immediately:

American consumers, who have suffered years of neglect from government agencies created for their protection, could soon be in for some genuine help. Congress last week overwhelmingly passed the first important reform in 30 years of the creaky Consumer Product Safety Commission. Aides to President Bush have said that he plans to sign the bill into law.[...]It is gratifying that even a White House that has spent years fighting worthy regulation now apparently recognizes that this bill is necessary to make today’s market safer for consumers and their children.

Update 930PM WE WIN 89-3-- on to the President for the most significant improvement in consumer product safety since the CPSC was established in 1973!

830pm We are on senate floor!

There's a good chance that the Senate will vote today to send the historic CPSC Reform Act conference report to the President. Probably mid-afternoon. Disputes over other matters may be temporarily put aside to protect America's littlest consumers. Reporters, call Liz Hitchcock in our office for details/comment. 202-546-9707.

There are quite a few items on suspension today and a few may take some time. Suspension bills that are non-controversial get passed together in one big vote. Any member can demand a separate recorded vote. Suspension bills subjected to individual recorded votes cannot be amended, but do then need a two-thirds majority (since they are put on suspension with the presumption that they are non-controversial). House action updated regularly here. Look for HR 4040, the conference report on the CPSC Reform Act.

The New York Times editorial board just posted to its blog Can't We All Agree On This?: Toys Should Not Kill (Or Injure) Children. Excerpt:

Industry lobbyists have been fighting some of the most critical reforms. The conferees need to stand strong.[...]C'mon, this is a battle between child-safety advocates and anti-breast cancer activists fighting for public health against the toy and chemical industries, who are fighting to protect their bottom line. Is it really so hard for members of Congress -- of both parties --to decide which side to come down on?

The CPSC Reform Act conference meets today (announcement). Our position is simple. Protect kids. Here's one way to look at it, through the eyes of kids. The committee has completed 21 non-controversial items, but at least four PIRG priorities remain. Here's our statement today on those issues:

In today’s conference meeting, U.S. PIRG urges the conferees to accept measures to:

We call on the conferees to reject special-interest demands to remove or weaken key provisions of the bill, so that the final legislation sent to the president truly protects America’s children.

We've posted a short video (at top right of page) of me explaining why we need to improve toy and product safety by finishing Congressional action on the CPSC Reform Act, now mired in conference committee where industry lobbyists take potshots daily at its most important provisions. It was taped a few months ago. Previous CPSC blog.

Members of the House-Senate conference committee on the CPSC Reform Act, led by Senator Daniel Inouye (D-HI) and Rep. John Dingell (D-MI), will hold their first official (it's public) meeting today at 3:30. Staff for the members have been meeting for many weeks, but several issues remain unresolved, including how many barriers to disclosure being demanded by industry will be appended to a critical new public hazards database requirement in the bill. That provision probably will not be discussed by the principals today, as negotiations are expected to continue into July. As one example of the need for the public database, we've known (from an activist baby blog) for over a month about hazards from Jardine cribs, but we didn't know how many complaints had been filed at the CPSC. Yesterday, we finally learned that at least 42 incidents had been reported, in the CPSC release Jardine Cribs Sold by Babies"R"Us Recalled Due to Entrapment and Strangulation Hazard.

Also today, on page one of the Chicago Tribune, Patricia Callahan and Amanda Erickson report in The Mattel loophole: Congress may back off pledge of independent toy testing that the independent lab testing requirement contains the "Mattel loophole," which we've been unable to remove from the bill. The loophole allows corporate proprietary labs to be approved and certified as independent.

Industry also continues to demand unheard of levels of preemption of state authority to protect their citizens from harm. Here's a story by Annys Shin -- Toymakers Frustrated by Patchwork of Safety Rules -- from yesterday's Post on the preemption debacle and a link to our consumer group letter, which the story refers to.

In response to eleventh hour efforts by a phalanx of special interest lobbyists demanding that Congress completely eliminate any state authority over product safety as an additional condition of their so-called support for the CPSC Reform Act, we've joined other advocates in a detailed letter urging rejection of the proposal for additional preemption. Previous blog has details on the state of play of the conference.

I saw an absurd comment by a movie industry PR flak in today's New York Times story Physicians’ Group Furious at Cigars in 'Hulk' Movie. The story responds to this news release from the American Medical Association's volunteer arm. In the New York Times, here's the section quoting the PR flak:

The Motion Picture Association in May 2007 said it would for the first time consider portrayals of smoking alongside sex and violence in assessing the suitability of movies for young viewers. While not addressing "The Incredible Hulk" specifically, Seth Oster, the association's communications chief, defended the effectiveness of the policy. "The vast majority of films with even a single image of smoking are already rated R or higher," he said.

Our colleagues at the Center for Health, Environment and Justice (CHEJ) have a new report -- Volatile Vinyl -- the new Shower Curtain's Chemical Smell. That link goes to a site with a variety of materials in addition to the report and news release. Excerpt from the release:

Results from a two-phase study released today by the Center for Health, Environment & Justice, a non-profit organization dedicated to preventing environmental health harms caused by chemical threats, show that shower curtains made with polyvinyl chloride (PVC) plastic contain many harmful chemicals including volatile organic compounds (VOCs), phthalates and organotins; these PVC shower curtains are potentially toxic to the health of consumers. Vinyl shower curtains and shower curtain liners release chemicals into the home that are most easily identified by that "new shower curtain smell" and are routinely sold at major retail outlets.

Consumers should avoid purchasing shower curtains made with PVC, and should not buy shower curtains that are not labeled with their content. "The new shower curtain smell may be toxic to your health," said Michael Schade, report co-author and CHEJ PVC Campaign Coordinator. "The good news is that families can take simple steps to protect their health by avoiding shower curtains made with PVC and choosing healthier products."

The conference committee on CPSC reform is continuing its negotiations to reconcile the House and Senate-passed versions of product safety reform legislation. Along with other consumer groups, we continue to urge the conferees to take the strongest parts of each bill (Florida PIRG Sun-Sentinel op-edit).

Meanwhile over at the National Association of Manufacturers, they continue to say they are for reform, yet continue to push for gutting amendments to key parts of the proposals (NAM letter to conferees).

What does NAM want? Same as ever. Less authority to state attorneys general to protect the public, continued behind-closed-doors secret agreements between CPSC and manufacturers, lots more preemption of stronger state laws, fewer rights for whistleblowers, no Internet disclosure of hazard warnings and, of course, no ban on toxic phthalates. These pernicious proposals undermine the public's safety and should all be rejected.

If negotiations continue smoothly, the conference report could be sent to the President by July Fourth.

Senator Mark Pryor (D-AR) held an important hearing yesterday exposing yet again the efforts by the Bush administration to write into its proposed auto safety roof-crush rules a provision asserting that compliance with the rule preempted all consumer state common law claims for harm. Incredibly, in his not-so-comprehensive, not-so-encyclopedic all-of-3-pages-long written testimony, the NHTSA bureaucrat James Ports didn't even discuss this critical matter. For that discussion, you'll need to go to pages 18-20 of Public Citizen President Joan Claybrook's encyclopedic testimony with exhibits. Claybrook ran NHTSA under President Carter. Both her testimony and that of Jacquie Gillan, vice-president of Advocates for Highway and Auto Safety, rip NHTSA's halfway effort on its technical merits as well. Of course, Congress never gave NHTSA -- or for that matter, FDA or CPSC -- the authority to claim that compliance with federal standards, no matter how weak, creates immunity from state consumer laws. But they've been claiming that power anyway. In fact, many of these statutes affirmatively preserve state law claims (previous blogs here and here).

A new report, Still Not Safe, from Consumers Union, publishers of Consumer Reports, finds that product recalls are on track to break the record set last year. Here is the news release:

According to the analysis, CPSC has initiated 121 recalls of unsafe products for the first four months of 2008, a total of nearly ten million products. At the current rate, the CPSC will issue more than 800 recalls in their 2008 fiscal year, a 70 percent increase over last year.

This week, Rep. Henry Waxman (D-CA), Chair of the House Oversight and Government Reform Committee, held an important hearing on Whether FDA Regulation Should Bar Liability Claims. Among the witnesses in opposition to FDA rules preempting state common law rights were actor Dennis Quaid and Kimberly Quaid, former FDA commissioner David Kessler and law professor David Vladeck. From Dennis and Kimberly Quaid's testimony:

Thank you for inviting my wife, Kimberly, and me here today to share our experience as parents of two infants harmed by the negligence of a prescription drug manufacturer. As I’ll explain, our newborn twins nearly died because of a drug company’s failure to put safety first....A federal ban on lawsuits against drug companies would not just deny victims compensation for the harm they experience. It would also relieve drug companies of their responsibility to make products as safe as possible, and especially to correct drug problems when they are most often discovered – years after their drugs are on the market.

Lawsuit limits have been included in 51 rules proposed or adopted since 2005 by agency bureaucrats governing just about everything Americans use: drugs, cars, railroads, medical devices and food.

Update 2: Here's a very nice Medill News video of the stroller event. It features an interview with Linda Ginzel. She and her husband Boaz Keysar founded Kids In Danger after their 16 month son Danny Keysar was killed -- ten years ago this week -- when a dangerous and previously-recalled portable crib collapsed around him. Both the House and Senate bills include a section known as The Danny Keysar Child Product Safety Notification Act -- on improving recall notifications and crib and durable product safety.

Update: Link to U.S. PIRG testimony yesterday.
Join us Thursday at 10am for a Stroller Rally urging final passage of the strongest possible CPSC reform bill, currently in a House/Senate conference negotiation.

10 am. Upper Senate Park on Constitution Ave between New Jersey and Delaware Avenues, Washington, D.C. Bring the kids (downloadable flyer).

Wal-Mart Stores Inc., the world's largest toy seller, has ordered its suppliers to meet a new set of children's-product safety requirements by this fall that goes far beyond existing government regulations.
The standards include strict limits for lead and a broad array of other heavy metals and chemicals that have been linked to various medical and developmental problems in children.

Following a procedural delay initiated by Minority Leader John Boehner (R-OH), the House will formally announce CPSC reform bill conferees today. House and Senate conference staff have already started work.

Meanwhile, Carter Keithley of the Toy Industry of America took some time to patronize provincial Connecticut legislators in a Hartford Courant op-edit last week that if the state enacted tougher toxic toy laws under consideration that toy companies would "deny" toys from Connecticut children. From Lawmakers Overreacting On Toy Safety:

These bills would not only prove unnecessary, but would almost inevitably create unattainable compliance requirements without improving toy safety in the state. The most likely results would be to reduce the availability of a variety of toys in Connecticut, forcing parents to look elsewhere, or simply deny children their desired toys and reduce the viability of Connecticut toy manufacturers and retailers.

I encourage the legislature to keep on overreacting if it means I can rest assured my child is not being exposed to lead and other dangerous toxins in her toys.[...] Gov. M. Jodi Rell and legislators need to ignore paid spokesmen for the toy industry and listen to Connecticut parents. Mr. Keithley's comments are evidence that the toy industry will continue to downplay the risk to children and keep parents in the dark in the absence of this important legislation.

When I was director of Connecticut PIRG and successfully lobbying passage of the nation's first new car lemon law in 1982, the lobbyists from Detroit showed up and argued: "If Connecticut passes this law, we'll stop selling cars here." I've been to Connecticut since 1982, and you can still buy new cars, and the cars are safer and better. Let's stop making threats, Mr. Keithley, and start making safer and better toys. And by the way, Connecticut legislators didn't like being patronized in 1982 and probably don't like it today. While sources tell me that the toy industry and the merchants have hired "every lobbyist in the building" to try and kill these important bills before the session ends Wednesday night, Shannon is right, and the forces of right may still prevail.

Over at the Washington Post, Annys Shin reports in Speeding Up Safety on a new and welcome trend: Instead of waiting for EPA or CPSC or FDA action, big companies are using their own version of the "precautionary principle" when potential toxic threats to public health are raised about chemicals in their products. From the story:

"When clouds begin to form over something, as they have increasingly over phthalates or bisphenol A, we don't wait for a final judgment," Toys R Us chief executive Gerald L. Storch said. "Our principle at Toys R Us is that it is always okay to be more conservative than required."

(Update: hearing links corrected.) On behalf of several leading groups, we testified today in support of the "Protecting Americans from Unsafe Foreign Products Act," H.R. 5913, in the Subcommittee on Commercial and Administrative Law of the House Judiciary Committee. My testimony here; full hearing link. The bill deals with the difficulties injured victims -- such as victims of dangerous toys or other Chinese products -- have in bringing lawsuits against foreign companies. Here is an excerpt from my testimony:

U.S. PIRG believes that for consumers to be assured that products that they buy are safe, we must ensure at least three levels of defense above and beyond any market notions of the supposed adequacy of competition or voluntary standards to protect consumers.

First, federal laws should provide a strong floor of protection and federal regulatory agencies should enforce those laws to both deter wrongdoing and hold wrongdoers accountable.

Second, states should be allowed to enact and enforce stronger laws and state attorneys general -- often the toughest cops on the consumer beat -- should be allowed to enforce both state and federal laws to the greatest extent possible, with full authority to impose penalties, recover damages and restitution as well as to obtain injunctive relief.

Third, consumers should have the right to adequate redress -- without roadblocks -- to bring private actions against wrongdoers to obtain compensation for their injuries or damages and to deter further wrongdoing.

A combination of these three pillars of consumer protection--strong federal enforcement, strong state enforcement and strong private enforcement -- is the best protection against unsafe products.

The CPSC proposals before Congress largely address the first, and somewhat the second, pillars. The proposed legislation by Chairwoman Linda Sanchez (D-CA) addresses the third. It makes it easier for consumers to obtain justice. My testimony was on behalf of U.S. PIRG, Consumer Federation of America, Consumers Union and Public Citizen.

Apparently House Republican Leader John Boehner has used procedural tactics to block appointment of conferees until at least next week -- more news as we get it.

Last night the Senate named conferees to resolve differences between Senate and House-passed CPSC reform bills. Our goal is to pass the strongest bill possible, by taking the best parts of each bill. Senate Democratic conferees are Commerce Chairman Daniel Inouye (D-HI), Mark Pryor (D-AR), Barbara Boxer (D-CA), and Amy Klobuchar (D-MN), joined by ranking Republican Ted Stevens (R-AK), Kay Bailey Hutchison (R-TX) and John Sununu (R-NH). The House is expected to name its conferees later today. House conferees are expected to be Energy and Commerce Chairman John Dingell (D-MI) and Democratic members Bobby Rush (D-IL), Diane DeGette (D-CO), Jan Schakowsky (D-IL) and Henry Waxman (D-CA) and from the Republican side, ranking member Joe Barton (R-TX), Ed Whitfield (R-KY) and Cliff Stearns (R-FL).

The chemical manufacturers and toy makers continue to lobby Congress to weaken the House and Senate passed CPSC reform bills (previous blog). If you like to find out more about our campaign to stop toxic toys and strengthen the CPSC, go here to our product safety page. You can really help by getting involved. Here's an easy way to email letters-to-the-editor to your local papers supporting strong toxic toy and CPSC reform here at our campaign action page.

The CPSC has announced the recall of two more toys from our November Trouble In Toyland report.

The Washington Post story Chemical Industry's Influence at EPA Probed by Lyndsey Layton reports in detail today on a House Energy and Commerce Committee investigation into whether the "chemical industry has stacked EPA panels" responsible for determining safe levels of toxic chemicals.

According to the story, the committee is investigating whether EPA and the main chemical manufacturer trade group (now known by the benign-sounding name, the American Chemistry Council) worked together to keep scientists with industry conflicts-of-interest on key science advisory panels, but threw off an independent state-paid scientist whose views did not comport with the industry's. Here is the April 2nd Dingell-gram, or information demand, from committee chairman John Dingell (D-MI) and Investigations subcommittee chairman Bart Stupak (D-MI) to the chemistry club. Here is an excerpt from the Post story.

The lawmakers want to know why the EPA allowed the scientists in question to remain on expert panels but removed a public health scientist, Deborah C. Rice, from a panel at the chemistry council's request. Rice chaired an EPA panel last year that reviewed safe levels for deca-BDE, a polybrominated diphenyl ether used as a fire retardant in television casings and other electronics. Deca has been found to cause cancer in mice and is a suspected human carcinogen.

In other toxic chemical news, Vicki Ekstrom over at Stateline.org has a nice story States lead feds in toy safety summarizing all the work being done by the states to protect us from toxic hazards. This week, Washington State Governor Christine Gregoire signed PIRG-backed toxic toy legislation.

From the Minneapolis-St. Paul (MN) Pioneer-Press story Reebok fined $1 million in lead poisoning death of Minneapolis boy, 4 by Jeremy Olson:

Reebok is paying an unprecedented $1 million federal fine for giving away lead charms with its children's shoes, including the heart-shape pendant that poisoned and killed a 4-year-old Minneapolis boy two years ago.

"The FHSA [Federal Hazardous Substances Act] bans toxic levels of accessible lead in toys and other children’s products. CPSC’s enforcement policy urges manufacturers of children’s metal jewelry to keep lead content below 0.06% by weight."

Federal safety regulators recalled an additional 2.4 million potentially deadly Mega Brands magnetic toys Monday, at least 14 months after learning there might be problems with some of those products. In December 2006, a consumer complained to the U.S. Consumer Product Safety Commission that magnets could come loose from Mega Brands Magna-Man action figures, one of the toys recalled, according to government records. And last May a Tribune report, which featured an account of a magnet popping out of one of those action figures, questioned whether the company's earlier Magnetix recalls covered all of the potentially hazardous toys in the line.

MEGA Brands and CPSC have received 19 reports of magnets coming loose, including one report of a 3-year-old boy receiving medical treatment to remove a magnet from his nasal cavity and one report of an 18-month-old boy with a magnet in his mouth, which was not swallowed.

Kudos to the CPSC for fining Reebok; it won't bring Jarnell back but may wake up other companies and prevent future tragedies. Yet I wonder when the CPSC is going to start using the big stick against Mega Brands, maker of Magnetix toys that seem to keep getting recalled. The CPSC also announced the recall of Battat construction sets for similar magnet hazards.

The chemical and bio-engineering industry is fond of claiming that American consumers are different from European consumers. We've supposedly embraced genetically-modified organisms (GMOs) in our food. While the industry had some early success in pushing the use of bio-engineered crops (and the genetic drift from those fields into natural crops will be hard to slow, let alone reverse), the notion that Americans like their food to come from factories and test tubes, not nature, is belied by the battle the agri-chemical behemoth Monsanto is having to fight over GMO-growth hormones in milk. Today's New York Times has a story by Andrew Martin called Fighting on a Battlefield the Size of a Milk Label.

The story reports on the latest battle in the long-running campaign between Monsanto and consumers who want to drink natural milk from un-engineered cows sold by farmers who, incredibly, simply want the right to describe their milk as hormone-free. Monsanto markets Posilac, a genetically-modified, artificial version of a natural hormone. Some, usually bigger, farmers like the product because it dramatically increases milk production and profits.

The story reports that Monsanto has created a new front group in response to growing consumer demand for untreated milk (even WalMart is selling the real thing):

The group, called American Farmers for the Advancement and Conservation of Technology, or Afact, says it is a grass-roots organization that came together to defend members' right to use recombinant bovine somatotropin, also known as rBST or rBGH [...] Afact has embarked on a counteroffensive that includes meeting with retailers and pushing efforts by state legislators and state agriculture commissioners to pass laws to ban or restrict labels that indicate milk comes from untreated cows.

"The FTC staff agrees with FDA that food companies may inform consumers in advertising, as in labeling, that they do not use rBST [rGBH]."

"This is a victory for free speech, free markets, sustainable farming, and the consumer's right to know," stated Michael Hansen, Ph.D., a senior scientist with Consumers Union. "Consumers increasingly want to know more about how their food is produced, and particularly whether it is produced in natural and sustainable manner. There is no justification for prohibiting information about rbGH use on a milk label. Pennsylvania deserves credit for realizing that its initial regulation prohibiting such labeling was flawed, and for reversing its position."

When American consumers have full information, they will choose what's better for their families. In too many cases, but not this one, they just don't have the facts.

Earlier this evening the Senate passed on a 79-13 vote (consumer vote is yea) a comprehensive version of S. 2663, the CPSC Reform Act. Here is a link to the consumer coalition news release commending the bi-partisan bill.

While a managers' amendment resolving differences and accepting some amendments without votes did tinker around the edges of the state Attorney General enforcement, lead and whistleblower protection provisions, the final bill includes all the core provisions we had going onto the floor. And, the final bill adds several provisions:

Once the Senate soundly defeated the DeMint (R-SC) amendment to simply substitute the narrower House bill, the air went out of the National Association of Manufacturers' attempts to weaken this important reauthorization of the CPSC. They'll patch and pump that balloon back up for the conference committee negotiations, but we'll be there, too. Here's an excerpt from our release followed by one from the Senate bi-partisan sponsors.

Excerpt from consumer news release commending the bi-partisan bill:

The Consumer Product Safety Reform Act, S. 2663 as passed, will do the following: increase CPSC's budget over the next seven years to $155 million; create a consumer database of product hazard information to better help consumers make informed purchasing decisions; make the industry's voluntary toy safety standards mandatory, ensuring that all toys are tested to comprehensive criteria; establish third-party, pre-market testing of children's products; increase the current limit on CPSC's civil penalties to $10 million for most violations, and cap it at $20 million for "aggravating circumstances;" give State Attorneys General tools to better protect their residents; lower lead levels in children's products; and protect CPSC staff and private-sector employees who blow the whistle on wrongdoing.

The groups acknowledge the importance of marrying the strong reforms of the Senate bill with key provisions in the House product safety bill passed in December. In particular, the groups point to the Senate's provisions addressing the public database, State AG enforcement and whistleblower protections. The groups will urge conferees to keep these provisions, while also adopting a critical House measure that ensures product testing of more children's products by defining such products as those designed for children under 12 years of age. The Senate bill covers products designed for children under seven years of age.

"The CPSC is crippled under budget restraints, mounting imports and thousands of new products entering the marketplace. As a result, we've seen endless recalls and unnecessary deaths and injuries," Pryor said. "My legislation allows parents and the CPSC to fight back against the tide of dangerous toys and products. It provides new safety safeguards that emphasize resources, accountability, disclosure and testing -- from the factory floor to the store shelves. I appreciate the broad, bipartisan support behind this bill and will work toward swift conference action in order to produce a solid, aggressive bill for President Bush to sign."

"I thank Senator Pryor and Senator Stevens for their leadership in negotiating this bipartisan compromise bill. S. 2663 authorizes the appropriate level of resources and provides the new authorities necessary for the agency to do the job it was created to do: protect consumers," Inouye said. "Children are dying and suffering grievous injuries because of unsafe products. This legislation directly addresses the weaknesses of our nation’s product safety system and is a good step forward in our effort to keep harmful products off of store shelves."

"This important legislation will provide the Consumer Product Safety Commission with the tools needed to better protect American consumers," said Stevens. "The measure sends a strong message that when it comes to our children, safety comes first. I am especially pleased that the bill includes my provision to protect users of all-terrain vehicles by requiring both domestic and foreign ATV companies to comply with the same basic safety standards and sales practices."

"Toy safety has made a giant leap forward with the Senate's approval of this bipartisan bill to strengthen the federal Consumer Product Safety Commission. This bill will help the federal government better detect and prevent threats to our children before, not after, toys reach store shelves," said Collins.

Update 2:30pm: Senator Pryor is negotiating a managers' package that accepts versions of a number of amendments. It is unclear which more controversial amendments will still have yes/no votes, but there is a chance that the bill will pass sometime this afternoon, before tonight. So far, the managers' package amendments look good.
UpdateVitter amendment tabled (Pro-consumer YEA to table). As soon as the vote is posted, I will add a link.

The Senate is now considering (Cspan2) another pernicious amendment. Senator David Vitter (R-LA) is proposing to change over two centuries of American jurisprudence and instead require that if a state attorney general were to lose an action to enforce the CPSC Act, state taxpayers would have to pay the legal costs of the prevailing party. Senator Mark Pryor (D-AR), chief sponsor of the CPSC Reform Act, is arguing strongly against this amendment that would substitute the English legal system's "loser pays" rule. Senator Pryor is arguing, among other things, that a judge already has broad authority under Rule 11 to sanction "frivolous lawsuits" and that is an adequate deterrent. Here is our opposition letter, which argues that adding a "loser pays" rule not only hurts taxpayers, it has a chilling effect on product safety efforts:

A "loser-pays" rule will harm American consumers by making attorneys general far more hesitant to bring enforcement actions to protect the public from product hazards. In the worst cases, it will harm Americans doubly -- the second time as taxpayers -- by forcing the government to pay litigation expenses for private businesses. We urge you to vote against this amendment.

Tonight, the U.S. Senate soundly defeated on a 57-39 vote the DeMint (R-SC) amendment to substitute the House CPSC bill for the more comprehensive Senate bill. Yes, to table the amendment, is the consumer vote. Senators who voted No deserve phone calls from their constituents: You might ask:

The number is 202-224-3121.

More information on CPSC reform on the Senate floor is in my last two blogs here and here. There is no question that the National Association of Manufacturers will continue its misguided efforts to weaken this important effort to improve the CPSC's ability to protect us, but the Senators fighting for the best final law possible won a key vote tonight.

On Wednesday, expect consideration of a number of good and bad amendments. This bill may go to final Senate passage either Wednesday night or more likely sometime Thursday.

Here's our group letter opposing the DeMint (R-SC) amendment to substitute the narrower House bill for the comprehensive CPSC Reform Act, S 2663. In addition to the arguments I made in the previous blog entry, here's one more: If the Demint amendment passes tonight, dangerous small magnets that have killed one little boy and sent over two dozen for emergency intestinal surgery will not be regulated by the CPSC.

Other comments on floor debate: We just heard a very nice speech by Senator Ken Salazar (D-CO), who, like Mark Pryor (D-AR), is a former state attorney general. Senator Salazar spoke about the critical need to keep the state AGs on the product safety beat. Just before him, Senator Dianne Feinstein introduced a PIRG/Environment California-backed amendment to limit toxic phthalates in children's products. The amendment is based on her bill, S. 2275, which is itself based on a pioneering CALPIRG/Environment California-backed state law. Environment California? New home of CALPIRG's environmental work.

Update: For the reasons stated below explaining why S 2663 is a more comprehensive bill than HR 4040, call your Senators now at 1-202-224-3121 and urge opposition to an anticipated DeMint (R-SC) amendment to be considered around 5:30 PM. The DeMint amendment would substitute the language of the narrower House bill, HR 4040. S. 2663 also reauthorizes the CPSC for 7 years, not 3 years as HR 4040 would do, and increases its budget and staffing and ability to protect us that us much more.

S 2663: Provides the CPSC $155,900,000 for fiscal year 2015.

HR 4040: Provides the CPSC $100,000,000 for fiscal year 2011. No further increase.

Last night, the Senate overwhelmingly (86-1) approved a procedural motion (60 yeas required) to begin debate on the CPSC Reform Act. It appears that industry opponents were convinced not to make Senators walk the plank over kid safety, so members were not put under pressure to block debate on the bill. Instead, debate on the floor today, so far, has been around a package of industry-backed amendments that would weaken the bill. Industry's strategy all along has been to either kill the bill (preferred) or get the Senate to simply adopt the narrower House bill, HR 4040.

As Senator Mark Pryor (D-AR), chief sponsor of S.2663, pointed out in a news conference today in the U.S. Capitol's Mike Mansfield Room, the Senate bill is "more comprehensive" than the House-passed bill, HR 4040. [That's Senator Amy Klobuchar (D-MN) at his right and the mothers of two children who swallowed toxic toys (Aqua-Dots and a 39% by weight lead figure) behind them.] Sorry for again violating my "no more low-res cameraphone photos on the blog" rule).

Among the reasons that the Senate bill is more comprehensive:

The National Association of Manufacturers (NAM), President Bush, the Heritage Foundation and the CPSC's acting chair all oppose all or part of these provisions. The nation's leading consumer groups, doctors and scientists support the bill including these provisions. Action will continue today with a final vote either late tonight or sometime Wednesday.

The New York Times has an editorial Consumer Watchdogs today calling for passage of the CPSC Reform Act. From the Times:

If there was ever a perfect moment for strong consumer product safety reform, this is it. The commission is not working well, customers need reassurance, and businesses need their confidence. Congress should remember that those nervous consumers are also voters.

Senate Majority Leader Harry Reid (D-NV) filed a cloture petition preparatory to bringing the CPSC Reform Act (now numbered S. 2663) to the Senate floor next week. A procedural vote known as a cloture vote or motion to proceed (60 yeas required) is scheduled for 5:30 pm Monday.

Meanwhile, we've joined other leading consumer groups in a release rebutting a 10-point memo (more of a screed actually) attacking the bill that was issued by the office of Senator Jim DeMint (R-SC), a member of the Senate Commerce Committee. Since his committee held a number of hearings, we'd expect a better understanding of the bill's intent and scope. Conversely, the ranking Republican and co-chair of the Committee, Senator Ted Stevens (R-Alaska) is a co-sponsor of the bill.

We're supporting all strengthening amendments, and of course opposing efforts to gut or delay this important product safety reform bill. From our release today:

Consumer, Safety Groups Call Foul on False Attacks on Product Safety Reform Bill-- Groups rebut charges; bill will be considered in the Senate beginning on Monday

(Washington, DC) -- Consumer, public interest, safety, and scientific groups today condemned false charges from the office of Sen. Jim DeMint, released through the Republican Steering Committee, against a Senate bill that would overhaul the ailing Consumer Product Safety Commission, and urged Senators to approve the measure -- without weakening amendments -- when it is slated to come up for a vote next week.

As part of its campaign for a smokefree Wisconsin, Wisconsin PIRG has released a new study finding that smokefree laws and ordinances do not harm businesses. According to the report Smoke and Mirrors: Tobacco Industry Claims Unfounded:

There is no reliable, independent scientific evidence to support...claims...that jobs will be lost in the hospitality industry and bars will go out of business.

The lead story in the latest edition of the CPSC Consumer Product Safety Review calls dangerous small magnets in toys and kids' jewelry #1 on the "List of Deadly Dangers." Deadly Danger #3: Tip-overs. Maybe the recall experts at CPSC ought to read the Safety Review. See our previous entry on their lack of action on deadly stove tip-overs. Also last week, CPSC announced the recall of a Gordy/Family Dollar FUN 'N SAFE Magnetic Dart Board set "due to aspiration and intestinal hazards." The toy is extremely similar to the Gordy/Family Dollar "Fun 'N Games Magnetic Dart Board" identified in PIRG's November 2007 Trouble In Toyland report as a toy that, in our view, posed similar hazards (little magnets fell right out of the darts). The CPSC has not yet announced action on the mysteriously similar PIRG-identified toy.

Also, last night, Senators Inouye, Pryor and Stevens, with some new co-sponsors including Senator Collins (R-ME), introduced S. 2663, the new bi-partisan version of S. 2045, the CPSC Reform Act. Its text should be available on the Thomas legislative server soon. The bill is as described in the Commerce news release from a few days ago, with the addition of some provisions on import safety requested by Senator Collins. It could come to the floor early next week.

Leaders of the Senate Commerce Committee have announced a compromise on major CPSC reform legislation approved in committee last fall. The committee's lead Republican, co-chairman and Senator Ted Stevens (R-AK), has signed off on a modified version of S. 2045, the CPSC Reform Act sponsored by Senators Mark Pryor (D-AR), Chairman Daniel Inouye (D-HI) and others. There is no word yet on whether the deal guarantees that all Senators will consent to bringing the bill to the floor without pernicious delays common to the Senate under its rules, but this is a major step. Our hope is to enact final legislation that melds the best parts of the House-passed bill, HR 4040, with the Senate bill, and even improves them where they are lacking.

Also this week, I am speaking both today and Thursday at the International Consumer Product Health and Safety Organization annual conference. Other speakers include Rep. Bobby Rush (D-IL), lead sponsor of HR 4040, CPSC acting chair Nancy Nord and key hill staff. The event committee is chaired by Rachel Weintraub of the Consumer Federation of America.

Finally, our colleagues at Kids In Danger have released an important report called 2007: The Year of the Recall. Check it out:

There were 231 recalls accounting for more than 46 million items, including twelve recalls that involved one million or more units. "These products together caused at least 657 injuries and 6 deaths," stated Nancy Cowles, executive director of Kids In Danger. " And those incidents include only those already reported at the time of the recall. More needs to be done to protect children from these hazards."

The New York Times has a small item in the Health section of today's paper by reporter Nicholas Bakalar: Toy Magnet Swallowed? No Problem. Two? Call 911. The story says:

"I'm not trying to disrupt anyone's day," said Dr. [Sanjeev] Dutta, who is an assistant professor of pediatric surgery at Stanford. "But the message here is that these are dangerous toys. If you have little kids around, or even big kids, I would avoid them."

In an editorial today the New York Times calls for The Next Step to Safety, final passage of federal legislation reauthorizing and reinvigorating the CPSC: "Strengthening the safety laws should give consumers confidence that what is on sale is safe enough to use." Action may occur in the Senate this month.

The editorial refers to a variety of situations that have led to the concern over the CPSC, including crib safety debacles. Here's yesterday's Channel 6 Philadelphia story Parents frustrated over recall delays on one of the CPSC's delayed crib recalls. The watch-able video and the print story both feature NJPIRG's Rebeckah Scotland.

As Annys Shin reports today in the Washington Post story Consumer Safety Panel Powers to Diminish, a temporary law allowing the CPSC the right to conduct business with only two seated members has expired with little to show for it [Note: staff can continue to work on voluntary recalls and impose limited penalties without commission action]. Yesterday, the commission did take a vote to advance a furniture flammability rulemaking -- with praise from environmental groups for not proposing the use of toxic flame retardants -- and in December it imposed a civil penalty on HSN (formerly Home Shopping Network). But as I noted in the Post article, where were the civil penalties against the big corporations whose business models seemed to ignore safety, as they finally begrudgingly reported wave upon wave of recalls? The CPSC could do a lot more to protect the public if it were to use civil penalties to punish corporate wrongdoers and deter further corporate crime.

Nothing to report on Senate negotiations to finish CPSC reform legislation (including restoration of the commission's voting powers). Meanwhile, allies at Public Citizen have released a major report Hazardous Waits: CPSC Lets Crucial Time Pass Before Warning Public About Dangerous Products, which Deepak Gupta blogs on at Consumer Law and Policy Blog. The Senate bill would strengthen civil penalty authority to a greater extent than the House bill; similarly, it would address the public disclosure problem exposed by Public Citizen more than the House bill does.

Louise Story reports in the New York Times that in a letter Tuesday to Mattel chief Bob Eckert, a total of 56 federal Lawmakers Say Mattel Broke Word on Lead:

The letter was prompted by Mattel's decision not to issue a nationwide recall of a blood-pressure cuff in a toy medical kit sold under the Fisher-Price brand. The legislators said they were disturbed by the company's "lack of action." Lead was found in a plastic part of the toy, and current federal laws ban lead only in paint on toys. Lawmakers are considering a law to limit lead in all material in toys.

Meanwhile, in the U.S. Senate, negotiations continue on bringing its CPSC reform proposal to the floor. The House acted in December. If the Senate doesn't finish the job, we'll all have to move to Illinois.

Over at the Washington Post, reporter Annys Shin has two product safety stories in Saturday's paper. In one, White House Vetting Product-Safety Candidates, she explains that the White House is still considering putting up a nominee for the vacant chair of the Consumer Product Safety Commission. Among the leading candidates is apparently Gail Charnley. The Post lede explains the problems with the candidate:

The White House is considering a scientist who has frequently testified and written on behalf of the energy, pesticide and tobacco industries to chair the nation's chief product-safety regulator.

In her other story, Fighting for Safety, Shin describes the possibility of completing a long-running furniture flammability rulemaking at CPSC.

The story explains in detail the efforts of tobacco lobbyist Peter Sparber to deflect attention from the leading cause of furniture fires that lead to thousands of deaths and millions of dollars in property damage -- careless smokers. Since the industry did not want to make "fire-safe" cigarettes (some advocates prefer the term "self-extinguishing") that go out when unattended, the tobacco industry instead through various paid and unpaid surrogates urged CPSC to force furniture makers to make non-flammable fabrics. How? Using toxic chemicals such as those in the PBDE family, of course. Unfortunately, these toxic chemicals result in myriad problems. First, they off-gas into home environments, subjecting consumers to longterm hazards that lead to developmental and other chronic problems. Second, when they do finally catch fire, and they will, they give off these toxic chemicals in acute, high-doses posing greater risk to firefighters and first responders. Toxicologist (and mountain climber) Arlene Blum has helped lead efforts to ban toxic chemicals.

Fortunately, a coalition of firefighters and consumer groups, including the PIRGs, has solved a large part of the problem by enacting a series of fire-safe cigarette laws based on New York's pioneering effort. The PIRGs and affiliated organizations including Environment California have also been at the center of state efforts to ban toxic chemicals such as the flame retardant PBDEs. Unfortunately, some states have previously enacted flammability rules that have led to overuse of toxic chemicals by the furniture industry. States are now modifying these rules as they pass newer laws eliminating toxics, as this blog from University of California-Riverside scientists explains. And, of course, lobbyists from the American Chemistry Council (formerly known as the Chemical Manufacturers of America) and its members have been jetting around state capitols, sometimes misrepresenting their affiliation in opposition to the proposed limits.

We can only hope that any new CPSC regulation does not mandate use of toxic chemicals to stop fires, and in the process, preempt the efforts of states to ban the chemicals.

Two stories from the Chicago Tribune today: The Chicago Tribune, in a story by Maudlyne Ihejirika -- $30 mil. deal in lead-paint Thomas suit -- is reporting today that RC2, makers of the popular Thomas the Tank Engine toys that were the subject of major summer recalls, has settled a class-action over lead-laden toys.

The paper is also reporting, in a separate story by Sam Roe -- Ty takes high-lead doll out of stores -- that Ty, makers of popular Ty Baby dolls and Jammin' Jenna, has reluctantly agreed to comply with Illinois lead laws. Jenna's vinyl shoes violate Illinois law. The company had for some time claimed that Illinois was preempted, but as the story notes:

In previous interviews, Ty representatives have said the company is not violating state law because federal rules supersede it. While the state bans vinyl toys that exceed 600 parts per million of lead, federal law does not. But both the state attorney general's office and the federal Consumer Product Safety Commission have said that the Illinois ban is valid because states can adopt their own rules where no federal law exists. Ty's action Tuesday appears to have averted a possible court fight and what would have been the first test of Illinois' strict lead laws.

The embattled acting chair of the CPSC, Nancy Nord, is speaking today at the National Press Club. According to the C-Span website, they'll cover it live on C-Span2 at 1pm. From the Press Club blurb:

Nord,who has come under fire from democrats and consumer groups for her stewardship of the US Consumer Product Safety Commission will talk about CPSC funding shortfalls, Chinese imports and other issues. Ms. Nord will detail her vision for the future of the agency.

In the Washington Post, reporter Annys Shin has a nice ode -- Goodbye to Bob -- on the retirement of the CPSC's Robert L. Hundemer, more well-known as "Bob, the only toy tester." We hope that the Senate moves quickly to complete the job of rebuilding the CPSC, replacing Bob and adding to our lines of defense against imported and other dangerous consumer products.

Of course, a few other other people in the CPSC's "rodent-infested" lab test toys at least some of the time. And the CPSC does have somewhere between 75 and 90 people that inspect consumer products in the field at least some of the time. Heck, a full 15 of those guard our nation's hundreds of ports of entry. But we need more people who test and inspect toys all of the time, especially now that Bob's moving on.

We wonder if the officials behind this policy have ever tried to repair a bad credit report -- an experience that rivals Dante's "Inferno."

Dr. Michael Hunt, emergency physician at Swedish Medical Center, said he has seen injuries from clamshell packages. Lacerations from using a knife are most common. "People get frustrated and vigorous," he said. "That's when the mishaps occur. People don't appreciate the integrity of the packaging. You become rushed and not slow and considered in your approach."

Whatever the reasons, state lottery officials and the companies they hire to run the games appear to be concentrating on the heaviest players.

Sallie Mae Bids to Raise $2.5 Billion In Stock Sale by David Hilzenrath: The planned stock sale is part of an effort to extricate the company from a financial bind -- another link in a chain reaction of trouble set off by the collapse of negotiations to sell the company and the collapse of its stock price.

Sallie Mae, the troubled student loan giant, said Wednesday that it would raise $2.5 billion by selling stock in the public market and would use most of the money to pay off a disastrous bet that the company made on its common stock price.

Ann Brown, CPSC chair under Bill Clinton, has joined Florida PIRG's Brad Ashwell in a column Congress must address the trouble in toyland running in Florida newspapers:

And we must allow state legislatures and state attorneys general to help police the product safety marketplace. We need 51 consumer cops on the beat, not just one. Congress must listen to the American families who have stopped buying toys because they've lost confidence in their safety. The best gift Congress can give America's littlest consumers this year is to better protect them from dangerous toys.

The CPSC has recalled the panda and cat "Super Magnets" identified in PIRG's November 2007 Trouble In Toyland report. We found many of the packages had loose, tiny magnets floating inside the package. In others, the magnet from one toy would pull the magnet right out of the other. These are not refrigerator magnets that barely hold a one-sheet of paper shopping list. I can hold two of these on opposite sides of my finger. These powerful small magnets can attract to each other across intestinal walls, causing perforations and blockages. At least one little boy, Kenny Sweet, is known to have died from swallowing small powerful magnets; another two dozen have had emergency surgery. Previous recalls involving powerful magnets include Rose Arts Magnetix building toys and Mattel Polly Pockets and Barbie and her dog Tanner dolls. As passed by the Senate Commerce Committee, S. 2045 to reform the CPSC would subject small powerful magnets to mandatory third-party testing; unfortunately, the House-passed HR 4040 would not. One of our primary goals is to make sure that final legislation signed into law includes the Senate provision.

Today the House passed its version of CPSC reform on a 407-0 vote. Excerpt from our joint statement with other leading consumer groups:

We appreciate the hard work that has gone into crafting H.R. 4040, the Consumer Product Safety Modernization Act, and thank the House Energy and Commerce Committee and the House Leadership for their prompt action today. Our current product safety system is in dire need of comprehensive reform, and this bill represents the first concrete effort to help protect consumers while addressing industry concerns.[...]We also commend both houses for the anticipated final passage later today of provisions in the Omnibus package providing CPSC with an $80 million budget for FY08 -- $17 million more than the Commission received last year, and $16.75 million than the Administration's request.

The Senate will not act on its CPSC bill, S 2045, this year. Senator Mark Pryor (D-AR), our lead Senate sponsor, has pledged early action in 2008. Nevertheless, the increase in CPSC appropriations to $80 million is a major holiday present for America's littlest consumers. That will become law as soon as the president signs the omnibus package.

The House bill reauthorizes the CPSC for three years, increases its civil penalty authority to $10 million, lowers allowable lead levels in children's products significantly and requires testing of all children's products subject to mandatory rules.

Our support for the House bill was tempered by the fact that the Senate Commerce Committee-passed bill was significantly stronger although we expect it to be modified and weakened in floor negotiations. Nevertheless, the House did get to the goal line first. Measures that are stronger in the Senate bill include the following: higher civil penalties for wrongdoers, better limits on secrecy of CPSC information, stronger language on preemption and attorney general enforcement and higher funding authorization for CPSC.

Key provisions that only appear in the Senate bill include a provision extending new testing requirements to all toys, including those under voluntary standards (such as small magnets and strangulation hazards) and a new provision protecting whistleblowers.

The House bill includes a provision requiring third party testing of infant and durable products (such as cribs); the Senate bill does not.

With the holidays fast approaching, the House Energy and Commerce Committee finalized its CPSC improvement/product safety/lead limits/China toys reform bill, HR 4040, late today. We view the bill as a positive step but hope to strengthen the bill in negotiations with the Senate, which has a stronger bill, S 2045 (although that bill passed by the Senate Commerce Committee has been somewhat weakened in pre-floor action negotiations). There is still a slight, very slight chance, that Congress can give America's littlest consumers safe toys for the holidays. But it will need to move quickly and may need to do so by tomorrow, which may be adjournment day.

Following the defeat of two pro-consumer amendments Thursday, and plagued by a rolling series of interruptions caused by floor votes, House Energy and Commerce Committee Chairman John Dingell (D-MI) suspended consideration of HR 4040, to reform the CPSC. The measure is scheduled to be put back before the committee Tuesday. We lost important amendments to strengthen the bill's lead standard (Eshoo-D-CA) and subject fixed site amusement park rides to CPSC oversight (Markey-D-MA), with the committee leadership, Dingell and subcommittee chair Bobby Rush (D-IL) continuing to honor their pledge that they and Republican leaders Joe Barton (R-TX) and Cliff Stearns (R-FL) would only vote as a block. They all opposed the amendments. We continue to look for ways to get a final CPSC reform bill before the President before Christmas, but time is running out.

Tomorrow the House Energy and Commerce Committee will vote on its version of CPSC reform, HR 4040. We haven't seen the committee substitute yet but remain concerned that it fails to solve all the problems we have identified, including those posed by dangerous small magnets. Meanwhile, the CPSC has finally updated its annual report on toy deaths and injuries. Toy injuries are up.

Due to consideration of the energy bill on the floor, the House Energy and Commerce Committee did not act on HR 4040, its proposal to reform the CPSC today. Earliest date of action is Tuesday. While we are grateful that the committee is trying to move a bill that includes some good parts, the current version fails to include many critical provisions. Today's Washington Post summarizes some of our concerns about what's missing or not good enough in the newest version of the bill, the full committee manager's substitute. The bill, incredibly, would not regulate dangerous small magnets, fails to adequately improve the public's right to know about hazards, fails to increase allowable civil penalties enough, fails to grant state attorneys general enough authority to protect their residents and aid the CPSC, fails to preserve the right of the states to enact stronger state laws and fails to grant protection to whistleblowers.

Also this week, 35 state attorneys general sent a strong letter to the hill urging that the final bill have lower lead limits and stronger state attorney general enforcement provisions. And, 75 local and national public health groups, including U.S. PIRG and Environment America, sent a similarly strong letter on the need to tighten the lead section. We will continue to work with the committee.

While a notice hasn't yet been posted to the Energy and Commerce website, staff have been noticed that the CPSC bill, HR 4040, will be considered in committee tomorrow Thursday. We and other advocates remain concerned that the versions of the bill we have seen fail to adequately protect the public health as much as S. 2045, its Senate counterpart, does. We are working to improve its deficiencies, including the following:

In other news, a coalition of environmental health groups has launched a new website -- www.healthytoys.org -- with a searchable database of lead-laden, and other toxics-laden toys. As the Washington Post's Annys Shin reports in Toy-Safety Data Released On Web Site:

Parents worried about toy safety after a record year of recalls can now look through a list of more than 1,200 items that a coalition of public interest groups has tested for lead and other harmful chemicals, though toy industry officials say the list may cause unnecessary alarm. The coalition, led by the Ecology Center of Ann Arbor, Mich., found more than 200 items that contained unsafe levels of lead, as well as hundreds of others that had little or no lead. The results are scheduled to be released today in an online database at http://www.healthytoys.org.

Over the weekend the Baltimore Sun ran a toy safety column Give product safety agency more clout jointly signed by by Maryland Attorney General Doug Gansler and Maryland PIRG's David Kosmos. Also, the Vermont Times Argus has Wireless phone monopoly a bad deal by U.S. Senator Bernie Sanders as a followup to efforts by him, Vermont PIRG and Vermont's Lake Champlain Chamber of Commerce opposing efforts by the mega-monopoly Verizon to gobble up (one Thanksgiving pun is not too many) a wireless competitor.

Today's New York Times story Citizen Vigilance Leads to Toy Recalls by Louise Story points out that it isn't always redoubled testing and altruism by companies that leads to product recalls, it is reports by groups like PIRG, the Center for Environmental Health, and Judy Braiman's Empire State Consumer Association, a "small group of mothers based in Rochester, who regularly buy children's products to test them." And it is individuals, including two citizens highlighted in the piece: wildlife pathologist "Ward Stone and his 10-year-old daughter, Montana."

Then, the story goes on to point out the following:

The commission's recall releases sometimes mention other government agencies that discover hazardous products. But the commission does not generally credit individual people or nonprofit groups when they discover problems.

hazardous levels of lead in dozens of children's necklaces and bracelets sold at stores like Michaels and Big Lots after they tested jewelry that Montana had received at birthday parties.

One problem is the general corporate bias of the CPSC's current leadership. A second is a wrong-headed provision of law known inside the beltway as Section 6(b), which allows manufacturers to control public disclosure of information about their products, even after action is taken. Among the weaker parts of generally laudable Congressional efforts by Congress to improve the CPSC in proposed legislation are modest proposals to modify, but not repeal, 6(b).

PIRGs released the 22nd annual Trouble In Toyland report and annual survey of toy hazards including dangerous small magnets, choking hazards and lead-laden toys at 75 news events today. We had one piece of jewelry that weighed in at 65% lead by weight, or over one thousand times legal limits. That's NYPIRG's Tracy Shelton at her event (AP photo). You can download our full report, our Toy Tips brochure and our news release at toysafety.net. Here's an excerpt from the release:

U.S. PIRG called on Congress to pass the strongest possible product safety reforms under consideration:

-Ban lead except at trace amounts. The PIRG-backed HR 3691, the SAFE Consumer Product Act, sponsored by Rep. DeLauro (Conn.)and 153 co-sponsors, would reduce all lead levels – in paint or in the product -- to 40 parts per million -- the level recommended by the American Academy of Pediatrics.

-Increase the budget and staffing of CPSC. CPSC has only one toy tester and a tiny force of 15 inspectors to check millions of toys at hundreds of ports of entry.

-Require companies to guarantee that their products have been subject to independent third party testing before they put them on toy store shelves.

"It doesn't matter whether a toy is made in China or made in Kansas," said Mierzwinski. "Companies have to make sure that it is safe."

Mierzwinski noted that two other bills, the CSPC Reform Act, S 2045 (Pryor-AR), which is ready for Senate floor action, and the Consumer Product Safety Modernization Act, HR 4040 (Rush-IL, Stearns-FL, Dingell-MI, Barton-TX), which is awaiting full Energy and Commerce committee action after Thanksgiving, are "good steps that include many of our proposed reforms, but should be improved in several areas."

The New York Times has another editorial Reform and Consumer Safety calling for product safety reform:

In the face of the mounting safety scandal, the White House has issued its own "action plan" that, of course, favors allowing the private sector to solve the problem with voluntary reforms. Responsible business leaders are already demanding something stronger in government regulation. Members of Congress have to resist the industry lobbyists and the administration and pass a strong reform law that puts consumer safety first.

Industry analysts say many U.S. companies save money by sourcing in China but are reluctant to spend on vetting supply chains. "You can't just throw the [orders] over the Great Wall and hope it comes back good," says Kent D. Kedl, general manager for Technomic Asia, a consulting firm in Shanghai that advises U.S. and European clients. He says companies "need people camped out" in China.

We're releasing our annual toy safety report Trouble In Toyland at news conferences around the nation Tuesday. Today's Washington Post has a nice preview story Playing It Safe by consumer reporter Annys Shin, who went out shopping with our toy consultant Alison Cassady in October.

Shoppers who want reassurance can adopt Cassady's technique of testing toys right in the store. For three weeks this fall, she scoured the shelves of Washington area toy retailers, armed with a lead-test kit, a choke-test cylinder and a sound meter.

With all except small non-controversial amendments refused until full committee by the committee's bi-partisan leadership, the House version of CPSC reform, HR 4040, was approved today in subcommittee and is expected to go to full committee two weeks from today. The manager's substitute that was approved should be posted here at the Energy and Commerce committee soon. We are still reading the bill carefully. Positively, many of the changes from HR 4040 as introduced were pro-consumer. Lead limits were improved and clarified. Also, the definition of children's product was changed throughout the bill so products for children up to 12 years old would come under the bill's protections. Previously, the bill had some protections for children up to 12, but most were only for children up to 6 years old. But, remember, we are still reading the bill carefully. Full committee chairman John Dingell re-affirmed at the meeting that Speaker Pelosi wants the bill approved by the House before the December holiday recess.

Nice flash video effort "Spacey the Lead Elf" from the Sierra Club and cartoonist Mark Fiore on fighting lead in toys:

As the holiday shopping season gets under way after 70 product recalls of nearly 10 million items so far in 2007, parents across America still can't be sure that the toys they buy for their children are safe. To help us get the word out about what we need to do to keep our kids safe, award-winning political cartoonist Mark Fiore created "Spacey the Lead Elf."

I first saw on the popular blog Boingboing yesterday that a story in the Melbourne Age reported that Australia had recalled the popular bead craft toy known there as Bindeez because when swallowed, the beads convert into a chemical ingredient used in a date-rape drug. Children in the U.S. and worldwide who have ingested the toys have become very ill or even unconscious:

The toy is produced by Melbourne company Moose and won this year's toy of the year award at the Melbourne Toy and Hobby Fair. Bindeez consists of colourful craft beads that are joined together to create designs. They are sprayed with water to fix them. The company yesterday ordered a nationwide recall of the Chinese-made product, saying a chemical had been substituted without the company's knowledge. The toy contains beads that have been found to contain a chemical that the body metabolises into gamma-hydroxy butyrate (GHB), also known as "grievous bodily harm". It should instead contain a non-toxic glue.

Despite 3 months of work, it is truly hard to say just what -- if anything -- is new, what is innovative and what is worthwhile in the Interagency Working Group on Import Safety's new "Action Plan." I guess what's new is they've got the president messaging on it. U.S. PIRG is particularly disappointed in the squishy, weasel-y language regarding safety certification of imported products. The way we read it, the administration is not supporting the concept that all imported children's products be subject to mandatory testing by a truly independent third party lab that is certified by the government for quality.

Also today, we joined Rachel Weintraub's testimony on behalf of her group, the Consumer Federation of America, and a coalition of organizations, in a House Energy and Commerce Committee hearing on its CPSC reform bill, HR 4040. At the hearing, subcommittee chairman Bobby Rush (D-IL) committed to moving forward within two weeks on on a vote on the legislation.

Today, we are signed onto testimony of the Consumer Federation of America's Rachel Weintraub before the House Energy and Commerce Committee at its hearing on product safety reform. (Note-- the committee has even posted a front page link to The Year of the Recall, a new Consumers Union report.) Meanwhile, after years of administration attacks (not mere benign neglect) on protecting Americans from product safety hazards, expect the Michael Leavitt-chaired White House import safety working group to back some sort of modest reforms today (New York Times and AP via Washington Post). We expect it will overly rely on self-regulation and the sort of tortured risk analysis favored by the administration over the more sensible precautionary principle, although press reports indicate positively that it will recommend strengthened recall authority at FDA and CPSC. Don't know just what it will say about the hazards to the public of CPSC officials flying around on the industry's planes or the industry's dime. From the Washington Post story today CPSC's Ethics-Review Process For Travel Criticized by Experts by reporter Elizabeth Williamson:

The $3,730 tab for Faulk and Nord's trip was to be paid by the Toy Industry Foundation, whose mission, according to the ethics memo, is to help at-risk children "by meeting a vital, yet frequently overlooked, developmental need often missing in their lives -- play."

The key ethics review memo states at the top that it came from Faulk, whom it describes as the "Designated Agency Ethics Official." But it was signed by someone the CPSC yesterday called "an alternate ethics officer" because Faulk was the traveler.

In today's editorial Playing Games With Toy Safety the New York Times urges Congressional reform of the Consumer Product Safety Commission, and expresses grave concern over the leadership by both the President and the agency's acting chief, Nancy Nord:

With the holiday season approaching, there is more bad news about the federal agency charged with protecting children from unsafe toys. Nancy Nord, acting chairwoman of the Consumer Product Safety Commission, joined industry lobbyists in opposing a Senate bill intended to strengthen her enfeebled agency. That was followed by the revelation that Ms. Nord and her predecessor took free trips from the toy industry. President Bush came into office promising relief for industry, which he claimed was overburdened by government regulations. Too often, however, that policy allows unscrupulous businesses to put workers and consumers in danger.

Perhaps most important, the bill would require the commission to make consumers' complaints public almost immediately, as the National Transportation Safety Administration does for automobiles. The Consumer Product Safety Commission now keeps complaints and even results of internal investigations secret while industry has weeks or longer to respond. That might work for industry, but not for the consumer.

Yesterday the bi-partisan leadership of the House Energy and Commerce Committee introduced their omnibus CPSC reform bill, H.R. 4040, the "Consumer Product Safety Modernization Act of 2007" (the release, the summary and the bill itself). We're still examining it and expect to sign onto joint consumer group testimony by the Consumer Federation of America at a hearing next Tuesday. This bill is on the fast track for two reasons:

Meanwhile, in other CPSC news, the Washington Post's Elizabeth Williamson exposes the cozy relationship between the CPSC and industry, which often pays the tab for CPSC travel, including by acting chair Nancy Nord and her predecessor, Hal Stratton. From Williamson's story Industries Paid for Top Regulators' Travel:

The records document nearly 30 trips since 2002 by the agency's acting chairman, Nancy Nord, and the previous chairman, Hal Stratton, that were paid for in full or in part by trade associations or manufacturers of products ranging from space heaters to disinfectants. The airfares, hotels and meals totaled nearly $60,000, and the destinations included China, Spain, San Francisco, New Orleans and a golf resort on Hilton Head Island, S.C.

"We hated to have an industry pay for our staff for anything," said Pam Gilbert, a lawyer who was executive director of the agency under Brown.

Read all of the statement here at the CPSC [although for the original letter, the link below loads faster than the CPSC link]. Here is an excerpt:

This week, several members of Congress publicly called for my resignation as CPSC Acting Chairman, citing a letter I recently sent to the Senate Commerce Committee expressing my views on pending legislation before that committee. In the letter (pdf), I respectfully pointed out what I think are several unwise proposals in a bill to reauthorize and expand the mission of the CPSC. However, despite media reports to the contrary, nowhere in the letter (or anywhere else) did I assert that the CPSC does not need additional resources. In fact, quite to the contrary, the main message of the letter is that if CPSC resources are diverted to new missions and mandates, we will need a dramatic upsurge in our personnel and funding, far beyond what either the House or Senate are proposing for our pending budget.

Considering everything negative about reform that Nancy Nord has been saying from inside the CPSC, (supposedly an independent agency), here's a surprisingly weak letter from White House economic chief Al Hubbard expressing the administration's official position opposing S. 2045, the CPSC Reform Act, which passed the Senate Commerce Committee yesterday. He does take the opportunity, however, to bash those pesky state Attorneys General. (Our previous CPSC blog).

Wal-Mart Watch has a post by Alex Goldschmidt that the CPSC has charged that Wal-Mart withheld recall information (score one for the CPSC!). Meanwhile, over at Consumer Law and Policy blog, Steve Gardner's post The Doctrine of Unintended Consequences finds that the fast food industry should have been more careful about what it wished for when it sued to overturn New York City's food menu labeling law:

The court thus provided a road map for cities and states to draft menu labeling laws that don't conflict with federal law. In other words, the decision gave cities and states a green light to make nutrition information mandatory at restaurants.

Meanwhile, over at Credit Slips, the blog about bankruptcy and consumer credit issues, Katie Porter has a withering critique -- Reporting on the "Mortgage Meltdown" -- of a recent Wall Street Journal article and an editorial that both get it wrong on bankruptcy facts. Bookmark these consumer blogs.

Two major items on the DC product safety front:

More on the markup: The core provisions of S. 2045 were retained, although one amendment we are concerned with, on ATV safety, was added. The committee approved several strengthening amendments, including two by Sen. Barbara Boxer-- one on a long-sought PIRG priority, extending toy safety hazard labeling to the Internet and one on improving the recall effectiveness of durable products like cribs. From our release:

The CPSC Reform Act of 2007, introduced by Senator Mark Pryor (D-Ark.), and co-sponsored by Senators Inouye (D-HI) Brown (D-OH), Durbin (D-IL), Klobuchar (D-MN) and Bill Nelson (D-FL) would require some children's products, including toys, to be tested by independent labs and to be certified to meet safety standards, make it illegal to sell a recalled product, limit the levels of lead in toys and children's jewelry to low levels, improve CPSC's ability to disclose safety information to the public, and raise the cap on the agency's penalties from $1.83 million to $100 million. It also includes provisions giving State Attorneys General the ability to enforce CPSC regulations and includes protections for individuals in companies and safety agencies who blow the whistle on wrongdoing.

Two weeks ago California governor Arnold Schwarzenegger signed legislation to make California the first state in the country to ban the use of phthalates in children's products. The legislation was a big victory for Environment California, the new home of CALPIRG's environmental work:

"When a child puts a phthalate-laden teether in her mouth, it’s like sucking on a toxic lollypop," said Rachel Gibson, Staff Attorney for Environment California. Phthalates have been shown to interfere with the natural functioning of the hormone system. These toxic chemicals have been linked to reproductive problems, early onset of puberty, liver and thyroid damage, and testicular cancer.

In today's Washington Post, reporter Annys Shin continues her in-depth coverage of product safety issues. In the story Stuck In Neutral, she reports on the CPSC's failure to recall a dangerous ATV:

In June, the Consumer Product Safety Commission issued an unusual warning about a four-wheel all-terrain vehicle designed for children, calling it "defective and dangerous. Children are at risk of injury or death due to multiple safety defects with this off-road vehicle," the agency said in a news release. That vehicle, the Kazuma Meerkat 50, was not recalled, however, which prompted consumer advocates to raise the question: If it was so dangerous, why did the CPSC allow it to remain on the market?

Under the Consumer Product Safety Act, it cannot release information about products for 30 days without getting comment from the manufacturer. If the manufacturer does not like what the agency intends to disclose, then by law it can take the CPSC to court. In practice, that can translate into delays while every word of a recall news release is negotiated. By law, businesses can also choose whether to repair or replace a product, or offer a refund, which can result in hazardous products sometimes remaining on the market. Most recently, dangerous cribs remained in homes and stores even after the deaths of three infants.

In 1987, the CPSC denied a petition led by Consumer Federation of America, and including U.S. PIRG, as well as doctors' organizations, to ban ATV sales to children under 16. Instead it negotiated a consent decree requiring certain marketing practices and warnings. It did at the time ban future sale of treacherous 3-wheeled ATVs, but did not recall existing machines. This ATV facts page from Concerned Families for ATV Safety has some of the latest death and injury statistics:

Between 1995 and 2005, ATVs killed at least 1,218 children under age 16. These children account for 27 percent of all ATV-related deaths during this period. (Consumer Product Safety Commission, 2005 Annual Report of All-Terrain Vehicle (ATV)-Related Deaths and Injuries)

8. Laws should prohibit the use of ATVs, on- or off-road, by children and adolescents younger than 16 years. An automobile driver's license, and preferably some additional certification in ATV use, should be required to operate an ATV. The safe use of ATVs requires the same or greater skill, judgment, and experience as needed to operate an automobile.

(UPDATE: Here is Nord's letter.) The acting chair of the Consumer Product Safety Commission (CPSC), Nancy Nord, has told Senate Commerce Committee leaders in a letter that large parts of their PIRG-backed CPSC reform bill [S. 2045, the CPSC Reform Act of 2007, sponsored by Sens. Pryor-D-AR, Inouye, D-HI, Durbin-D-IL and others] scheduled for a committee vote next Tuesday are "crippling" and "hampering" to product safety. From Nord:

The result is clear: enactment of S. 2045 would harm product safety and put the American people at greater risk.

While Nord makes some useful suggestions on personnel and rulemaking issues raised by the bill, much of the letter reflects her personal view that holding wrongdoers more accountable is the wrong way to go. We disagree.

What disappoints me most is that Nord reserves some of her greatest ire for one of the most important sections of the bill, its provision granting co-enforcement authority of product safety laws to state Attorneys General, saying that it "would invite nothing short of product safety chaos" and "undoubtedly lead to the inconsistent application of federal law." This section of her letter, which incidentally is addressed not only to full committee chair Daniel Inouye but also to subcommittee chair Mark Pryor, the former Arkansas Attorney General, reads like something out of the big-business-backed American Enterprise Institute's anti-state attorney general campaign organizing materials (previous blog has links). It's clear, from the federal government's abdication of its role as a health and safety enforcer, that we need 51 consumer cops, not one.

Annys Shin of the Washington Post also has a story on the letter: Product Safety Chief Sees Setbacks in Senate Bill.

Massive Day of Action Targets Kohlberg Kravis Roberts (KKR) and 88 Toys "R" Us Stores as Activists Turn to Consumers to Join Campaign against Toxic Toys at Toys "R" Us.
Concerned mothers and advocates for children will step up the campaign for toxic free toys on Wednesday as they head out to nearly a hundred Toys "R" Stores nationwide to intensify call on one of the chain's private equity owners -- Kholberg Kravis Roberts & Co. (KKR) -- to make sure Toys "R" Us stops selling dangerous toys and starts requiring its suppliers to adhere to a strict, verifiable code of conduct.

KKR, profiled in the best selling book Barbarians at the Gate, make their money by buying companies with borrowed money and then selling them a few years later for a quick profit -- in some cases, a profit achieved through dramatic cost cutting or downsizing. Last week, the coalition of concerned parents and legislators released a report which detailed safety lapses and multiple recalls associated with Toys "R" Us, Dollar General, and other companies owned in whole or in part by KKR. Hundreds of thousands of products sold by these companies were recalled this summer because of dangerous lead levels. Despite the recalls, another toxic toy was found on Toys "R" Us shelves just this month. The Center for Environmental Health reported Oct. 11 that test results for a Marvel Curious George doll bought recently at Toys "R" Us showed more than 10 times the legal lead-paint limit.

Today the CPSC announced that home lead test kits were "unreliable." Meanwhile, Consumers Union, publishers of Consumer Reports, countered that

Three of the five home lead-testing kits we tested at Consumer Reports were useful though limited screening tools if you are worried about specific items in your home.

Our colleagues at Consumers Union, publishers of Consumer Reports, have launched a new campaign against toxic and contaminated food and consumer products: Notinmycart.org.

Mission: Consumers Union created NotInMyCart.org to give you a place to check for recent product recalls and take action to make all products safer in the future. The U.S. market is now flooded with imported products--tens of millions of items arriving in cargo ships stacked high with containers. Recalls, after a dangerous product is found on store shelves, are important, but not enough. Manufacturers, retailers, government and ordinary Americans must all take responsibility to keep our children and our homes safe, and we've tried to make it easy for you to help.

We testified (my testimony) yesterday at a hearing on CPSC/China/toy recall issues before Senator Mark Pryor's (D-AR) subcommittee of the Commerce Committee in favor of his bill: the CPSC Reform Act of 2007, S. 2045 (we also suggested improvements) to reauthorize and modernize the Consumer Product Safety Commission.

Obviously, the National Association of Manufacturers opposed the bill, especially its provisions to increase civil penalties, let state Attorneys General police the product safety beat, and eliminate unnecessary secrecy in CPSC activities. But, astonishingly, acting CPSC chair Nancy Nord largely agreed with NAM, especially when she said that eliminating secrecy would be "counter-productive." She essentially said that their relationship with corporate wrongdoers would be jeopardized. Former CPSC Chair, Ann Brown, in Annys Shin's Washington Post story Head of CPSC Opposes Measure on the hearing, said, and we agree:

"She thinks it's the industry product safety commission," said Ann Brown, CPSC chairman under President Bill Clinton. The current law "stands in the way of consumers getting prompt information, and it should be amended and changed."

We testify this afternoon at a hearing of a U.S. Senate Commerce Committee subcommittee on major legislation, the CPSC Reform Act of 2007, S. 2045. The bill has the potential, if improved in a few ways and not watered down in others, to go a long way toward:

The bill is introduced by subcommittee chair Mark Pryor (D-AR), a former state attorney general, along with full committee chair Daniel Inouye (D-HI) and the Senate's #2 leader, Majority Whip Dick Durbin (D-IL), as well as committee members Amy Klobuchar (D-MN) and Bill Nelson (D-FL). Watch on the Internet at 2:30pm.

According to the story Missteps delayed recall of deadly cribs filed late last night by the Chicago Tribune's Maurice Possley, only the paper's investigation led to the recall of one million cribs. Both the company, Simplicity, and the CPSC, the story reports, knew about the problem following the 2005 death of infant Liam Johns and a subsequent family lawsuit and CPSC investigation.

But the company and the Consumer Product Safety Commission didn't warn parents across the country about the potentially fatal flaw in Simplicity cribs--not after Liam suffocated, not after more complaints about the crib rails and not after two more infants died. Once the Tribune began questioning the company and the agency this month, a massive recall of Simplicity cribs followed.

Pam Gilbert, a former U.S. PIRG consumer advocate and longtime public interest attorney who served as CPSC executive director under Chair Ann Brown in the Clinton administration, is among those with sharp critiques of the agency in Annys Shin's story in today's Washington Post about the recall (CPSC release) of one million Simplicity cribs (made in China) following three known infant deaths, "seven infant entrapments and 55 incidents in these cribs."

The story is titled Infant Deaths Lead To Big Crib Recall with the subtitle Actions of CPSC Face New Criticism.

The toy recalls have prompted calls for an increase in the agency's funding, which has been cut in recent years, but Pamela Gilbert, a former CPSC executive director, said yesterday's recall reflects problems beyond resource constraints. "When a baby dies, there should be a more thorough review and more thorough fix," she said. "They have enough resources to investigate the design of a crib and investigate the circumstances of a few deaths."

[At the end of this post is a release "The CPSC: The Little Agency That Couldn't." PIRG put it out at the first hearing yesterday.] In testimony today before the House Energy and Commerce Committee, Dana Best, MD of the American Academy of Pediatrics (AAP) recommended that lead limits for "all products intended for use by or in connection with children" be set to allow exposure to no more than trace amounts of lead:

The Academy recommends defining a "trace" amount of lead as no more than 40 ppm, which is the upper range of lead in uncontaminated soil.

She is finally asking Congress for help. It's about time. From AP:

Leaders of the agency responsible for protecting consumers from faulty products said Wednesday that Congress should increase their budget and power in the wake of huge recalls of lead-contaminated toys..."Our small agency has been ignored by the Congress and the public for way too long," said the acting chairman, Nancy A. Nord. "Our laboratory desperately needs to be modernized."

The CPSC: The Little Agency That Couldn't

"Information obtained by committee investigators that retailers have not informed the public of numerous lead hazards in children’s toys and products is not surprising. The CPSC law is so weak that it allows manufacturers and retailers to control negotiations over the terms and timing of so-called "voluntary" recalls. With no money and little power, the CPSC is the little agency that couldn't.

Congress needs to do three things to guarantee the safety of toys and other children’s products:

First, it must increase the CPSC's funding and its authority to monitor the marketplace, order recalls, notify the public and impose penalties on companies that break the law;

Second, Congress must immediately ban lead in all toys and children's products;

Third, Congress must add safety links to the import supply chain, including adding more inspectors at ports of entry, imposing measures to require government enforced mandatory third party testing, requiring product traceability labeling rules and adding bonding requirements for all importers to guarantee that they can pay for recalls, if necessary.

U.S. PIRG intends to work to ensure that any final safety laws enacted by Congress protect children and the public, not companies that break the law."
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U.S. PIRG serves as the federation of state Public Interest Research Groups, which are non-profit and non-partisan organizations that stand up to powerful interests. In November, the PIRGs will release their 22nd annual Trouble In Toyland report, highlighting lead and other toxic hazards, as well as balloons, small parts and other choking hazards. More information at our websites www.uspirg.org and www.toysafety.net, and breaking consumer news at the U.S. PIRG Consumer blog www.uspirg.org/consumer

As an opener for today's House Energy and Commerce committee hearing on toy import safety, Eric Lipton of the New York Times reports in More Retailers Found to Have Lead-Tainted Items that based on letters responding to committee investigator queries, "Major American retailers, including Target, Limited Too and Dollar General, have found more lead-contaminated children's products in their inventories but have not yet notified the public, Congressional investigators have determined."

Why hasn't the public been notified? The recall laws in the U.S. are so weak that even if manufacturers (including importers under the definition), retailers, and distributors correctly notify the CPSC of hazards they become aware of, those firms still -- under the law -- essentially control the recall process and can drag that process out for a long time, can negotiate the terms of the recall (if goods are recalled at all as sometimes existing product is allowed to remain on shelves, provided new product is non-hazardous), and even can use the law to control the wording of the eventual "voluntary" joint CPSC/firm recall press release to the public. A lot needs to change to protect children and others from hazardous products, but the recall rules are high on every reformer's list.

There's a big story and a couple of fine editorials in the Sunday New York Times regarding the response of the toy, food, tobacco and many other industries to a variety of pressures, including but not at all limited to the massive public outcry over dangerous products being imported from China. Of course, a second goal of industry is to convince Congress that the price of federal regulation, no matter how insignificant its provisions, must be to permanently preempt or limit the authority of state legislators and state enforcement agencies including those pesky state Attorneys General to protect consumer, worker and environmental health, safety and financial well-being. Their goals even extend to eliminating the right of injured consumers to seek compensation in state courts. The front page story by Eric Lipton and Gardiner Harris is called In Turnaround, Industries Seek U.S. Regulation:

For toys and cars, antifreeze and fireworks, popcorn and produce and cigarettes and light bulbs, among other products, industry groups or major manufacturers are calling for federal health, safety and environmental mandates. Some of those industries are abandoning years of efforts to block such measures, often in alliance with the Bush administration, which pledged to ease what it views as costly, unnecessary rules.

Of course, in the story, I point out that lawmakers need to be careful: "I am worried about industry lobbyists bearing gifts...Their ultimate goal is regulation that protects them, not the public." Similarly, Georgetown law professor David Vladeck says, restating a point made in his recent Senate testimony, that industry seeks preemption as a condition of enhanced federal regulation: "This is Christmas. This is their wish list."

The Times also has two related editorials Sunday, the first is called The Need for Regulation: For All of the Nation's Imports and the second is The Need for Regulation: And Especially Our Children's Toys. And Monday's Wall Street Journal has a similar story by Jane Zhang: Food Makers Get Appetite for Regulation (pd. subs. req'd.) Our previous blogs on preemption and on industry's motives.

I will be on CNBC this morning at 11:20 Eastern time or so (TV is always a few minutes late, sometimes early) talking about China, imports and the CPSC. At 11 am, Senator Dick Durbin, who has filed several safety proposals, will hold an Appropriations hearing with witnesses from the CPSC, toy industry and Consumers Union.

From the University of California at San Francisco's project on tobacco control, where "The Cigarette Papers" and other documents are also stored, an announcement of improvements to the website where the main tobacco industry information treasure trove is kept:

Today, the Legacy Tobacco Documents Library (http://legacy.library.ucsf.edu) released a new version of the website with new features and a few fixes that we hope you will find helpful.

There are, for example, 1,245 documents containing the phrase "public interest research group" and 915 documents containing PIRG. 619 pages contain PIRG but not "public interest research group." You can search, for example, for copies of Sylvester Stallone's letters where he agrees, for a fee of $500,000, to use Brown and Williamson tobacco products in 5 films (just search on Stallone).

You say you want an example of a database that doesn't work well to compare this to? Head on over to the clunky 19th Century Senate Office of Public Records [or sopr.senate.gov]. Good luck trying to figure out who is a registered lobbyist, who his or her clients are, how much money they were paid, and what the payment was for. Good luck with all the scanned documents.

The government's Interagency Working Group on Import Safety has released a report to the President. On August 31, it also issued a Federal Register notice announcing a public hearing for October 1.

The report, not surprisingly, has little to say. It does somewhat randomly (page 8) call for amending the Consumer Product Safety Act to make it illegal for retailers and distributors to continue to sell voluntarily recalled products. Subject to how such a proposal were drafted, we'd support it. But we'd also like greater burdens placed on manufacturers conducting recalls to agree to do real recalls, not simply go through the motions. Under current law, voluntary recalls are more frequent not because manufacturers are altruists, but because the CPSC does not have adequate authority to make them do mandatory recalls without court delays and expense. It settles for weaker "voluntary" actions because they can be negotiated more quickly.

Congress never acts to protect consumers unless the states act first or there is a massive scandal. But the scandal needs to be massive to get the sustained attention of the Congress. In 2002, we would not have enacted the Enron reform law known as Sarbanes-Oxley (industry had effectively stopped it) until WorldCom joined the scandal and the President had to run up to Wall Street to promise to restore faith in the markets.

In 1994, Congress passed the Child Safety Protection Act, its last substantial amendment to the toy safety laws. We had to drag the toy industry, kicking and screaming, to the table. The way we accomplished it? After ten years of non-action by either Congress or the CPSC on well-known choking hazards, the state PIRGs launched a state-by-state campaign to enact stronger standards. Following passage of Connecticut's law, and the quick slapdown by the U.S. courts of the industry's attempt to strike it down, the industry crawled back into Washington to announce it would no longer block reform.

Now, the multiple Mattel/Fisher-Price and other China recalls may be piling up into a big enough scandal that we can enact better import protections, toughen the CPSC's regulatory authority and get it more money and resources to protect American families from product hazards. In today's New York Times, Eric Lipton and Louise Story report that Toy Makers Seek Standards for U.S. Safety.

We haven't seen their plan for mandatory third-party pre-market testing. Since the makers are already responsible for guaranteeing that toys entering into U.S. commerce meet U.S. standards, they should be doing third-party testing already. The real questions here are raised by Don Mays of Consumer Union in the story. He said that "if the proposal was going to be effective, the government would also have to ensure that the tests were being done often enough, and spot-check products coming into the country to make sure that they were safe."

And we would add this: We question the industry's motives. Are they trying to reassure the public or create a liability shield? Congress must be clear that any additional requirements on the industry should not automatically grant immunity from private enforcement by aggrieved consumers. Why?

A manufacturer's compliance with minimum federal standards should never take away remedies for consumers. Not only are these often the only way consumers can be compensated for their injuries, but the threat of lawsuits acts as an additional protection against making dangerous products.

This just in: More bad stuff from China. AP is reporting that Mattel "will announce on Wednesday the recall of a third batch of Chinese-made toys because they may contain excessive amounts of lead paint."

We've joined AARP and other leading groups in an amicus brief (or friend of the court brief) in Riegel v. Medtronic, a case to be heard this fall by the Supreme Court. We are opposing this attempt by a medical device manufacturer (Medtronic) to claim immunity from product liability lawsuits brought by victims. Medtronic argues that since the device had received premarket approval from the Food and Drug Administration (FDA), state law claims (such as product liability claims) are preempted. More information here from Public Citizen, which is representing Mr. Riegel.

Our colleagues at BEUC, the federation of European consumer organizations, have asked the European Commission Who is Minding the Toyshop? Referring not to the two August 2007 lead paint related recall announcements by Mattel/Fisher-Price, but to the November 2006 and August 2007 Mattel recalls of what appear to be the same magnetic toys from China, BEUC says:

For BEUC, this double recall raises serious questions about the toy safety regime in Europe. In this case primary responsibility lies with Mattel, and with the national enforcement authorities, but the Commission also has questions to answer. What has the Commission been doing to ensure that the Toy Safety Directive is enforced?

"I think it's the fault of the vendor who didn't follow the procedures that we've been living with for a long time," Mr. Debrowski said.

"It was our fault at Mattel because we trusted, but we did not verify. Squeezing safety to meet low-cost price points, we failed to require independent third-party testing to assure that U.S. quality and safety standards were being met by our suppliers before we put the Mattel/Fisher-Price brands on the toys from China we entered into commerce in America to sell for small children to play with. So, we take full responsibility."

One good thing that's happening with all the China toy recalls: we've finally got a spotlight aimed at the tiny Consumer Product Safety Commission (CPSC). The light points out the urgent need for the president to nominate a consumer protection champion to run the CPSC and for Congress to give it the money and enforcement tools it needs to protect us.

Two consumer champions who ran the agency during the Clinton administration, chair Ann Brown and executive director Pamela Gilbert, have a column explaining steps needed in Reviving a Consumer Watchdog in today's Washington Post:

In its early years, the commission enjoyed bipartisan support, which resulted in steady budget and staff increases. Its activities involving just three types of products -- baby cribs, baby walkers and child-resistant cigarette lighters -- are estimated to save the United States about $2 billion and prevent more than 300 deaths and 10,000 injuries annually.

Brown and Gilbert go on to describe efforts by Ronald Reagan and others to knock the agency down.

But the era of downsizing government changed things. Ronald Reagan and many members of Congress believed they were elected with a mandate to decrease domestic spending, no matter how beneficial to citizens or cost-effective that spending was. The commission's budget, like that of many agencies, was slashed, and its powers were reduced.

The commission has never recovered from those changes. Proposed 2008 funding is about $63 million, with only 400 full-time staffers -- which would make the agency less than half its size in 1978. Today our economy is global; more products enter our stores from other nations than ever before, yet we have far fewer resources dedicated to ensuring their, and by extension our, safety.

This history helps explain how we got to our current situation, where millions of toys have been recalled in the past year. What is the commission doing? According to recent news reports, the agency is "negotiating" a plan with the toy industry to keep dangerous toys out of stores. Not bringing action to enforce the law, not assessing penalties, not writing regulations. Negotiating, because it is too small and underfunded and because it lacks the will to do much else.

Between 6-7 pm Eastern time both Saturday and Sunday night, I'll appear on a panel on CNN's Lou Dobbs Tonight talking about SpongeBob and the other most recent China toy recalls. Sorry I do not know the exact time of the story. Our toy safety pages are at toysafety.net.

The CPSC has announced 4 more lead recalls:

All toys manufactured in China. More info here at CPSC. PIRG's toysafety.net pages.

New York Governor Eliot Spitzer has put the machinery of New York State to work enforcing the recent recalls of numerous Mattel toys for lead or magnet hazards (his statement announcing a series of actions). The governor's actions recognize that voluntary recalls negotiated with manufacturers by the CPSC are often ineffective at getting toys off shelves. Due to the juxtaposition of China, Barbie, Mattel and the August news hole, this recall is getting significantly more press than most others do, but that is no guarantee that all toys will be removed from store shelves. Among Spitzer's announced actions:

Mandatory, not voluntary removal: The State Health Department (DOH) will take summary action under existing Public Health Laws to ensure that recalled toys are removed from New York stores, returned to manufacturers and appropriately destroyed. State Health Department and the state Consumer Protection Board (CPB) staff will inspect retailers to make sure that they comply. In the past 24 hours, the state has found numerous of the recalled toys still on shelves throughout the state.

Talking about the China toy recalls: Over the weekend, I will be appearing on CNN's Lou Dobbs Tonight (both Saturday and Sunday, 6pm Eastern) on a panel with Lori Wallach of Public Citizen's Global Trade Watch and Don Mays of Consumer Reports. Sorry I don't know where in the hour the piece will hit.

And tonight Friday in the 8 o'clock hour (that time is on the East coast at least) I have a long interview with Lee Rayburn on Air America radio (station list).

Sign the U.S. PIRG petition to strengthen the CPSC. The CPSC has committed staff in the trenches, but no leader, not enough money, not enough staff and insufficient legal authority to protect us from either dangerous imported or dangerous domestically-produced products. As the manufacturer, Mattel is responsible, but CPSC needs more resources to hold it and other manufacturers accountable when they break the law.

Urge the Bush Administration to protect children from dangerous toys by giving the CPSC the resources it needs to operate efficiently.

I'll be on the Diane Rehm Show on NPR, Wednesday morning, (airing from 10-11 am in the DC market, at least, but I don't know about times nationwide so check your local listings) joining other guests and all discussing Mattel, China, dangerous toys and the CPSC.

On the Media, the NPR show, has a nice updated interview with Professor of Medicine Stan Glantz of the University of California at San Francisco, commenting on Disney's recent ballyhooed announcement that it was taking smoking out of Disney-branded films for small kids, but not out of all its other movies. Stan is quoted extensively in a variety of print stories on the Disney announcement, which got much more praise than it deserved, as archived at his Smokefree Movies project news pages. MASSPIRG's 2002 report: Tobacco at the Movies.

Papers (New York Times) are reporting that "Zhang Shuhong, a Hong Kong businessman and owner of the Lee Der Industrial Company," has committed suicide. Lee Der is the firm implicated in the recent Fisher-Price lead paint recall of over a million toys. The Times, and others report that there is "no independent confirmation" of the suicide. Our previous blog.

The Center for Justice and Democracy has a comprehensive new white paper on the corporate assault on public protections: Corporate Empowerment and the Decline of Public Safety.

Just look at today's federal regulatory agencies, which were created to safeguard the public from corporate abuses. These agencies have been captured and are controlled by the very industries they were intended to regulate. This transformation of mission and management is primarily the result of the President's agenda to minimize the government's role in protecting its citizens. [...] And finally, the Bush administration has been quietly attempting to wipe out or render meaningless the legal rights of consumers hurt by the very dangerous products and practices that the agencies themselves were created to safeguard against and have failed to prevent.

U.S. PIRG, Consumers Union and Consumer Federation of America have sent a letter to Congressional leaders and the Bush administration outlining actions that must be taken to guarantee the safety of consumer products and food. The proposals would apply to all products, but new protections are proposed for imports:

Clearly, the system of effectively protecting consumers from dangerous and toxic foods and products is broken. [...] We ask that you act quickly to provide more resources and tools to the federal agencies charged with policing the safety of the nation's product and food supply. In addition, we must put mechanisms in place to hold companies accountable for the products they import and sell in the United States including requiring independent third party testing and certification of consumer products.

Pictured is one of the million or so units of various licensed character toys from Fisher-Price/Mattel recalled today because of banned lead paint. When children are exposed to lead it causes chronic, cumulative developmental and brain disorders and lowers IQ. This is not new science.

If manufacturers want to stretch their supply chains all the way to China (and other places) to find lower-cost producers, then they'll need to spend more money making sure that the safety links in the chain don't break. Fisher-Price may have thought its modern factories were immune to the corruption and cost-cutting and cheating that seem to permeate the Chinese economy, but it needs to do a better job. A much better job.

But China is only part of the problem and Congress shouldn't forget that. Unfortunately, the U.S. Consumer Product Safety Commission (CPSC) does not test all toys that enter the market. And if were required to, it wouldn't have the money, anyway.

CPSC enforces laws that require manufacturers, distributors, retailers and importers to guarantee that their products (toys and other products) entered into U.S. commerce (wherever they come from) meet U.S. safety rules, but doesn't have the resources or responsibility to test all products in advance. That's up to sellers. When the CPSC was established in 1974, it was given a budget of $34 million. That's $149 million in today's dollars, but its actual 2007 budget is only $63 million. Its staff of 400 is less than half its 1980 peak of 978, yet it now has global responsibilities. It's the little agency that couldn't.

While it has many dedicated career staff in the trenches, it has no leadership. It's a headless horseman. This president has made things worse, by nominating three bad candidates to run it. The first, Mary Sheila Gall, in 2001, was defeated in the Senate. The second, Hal Stratton, quit less than halfway through his lackluster term. And the president's latest nominee, Michael Baroody of the National Association of Manufacturers (NAM) withdrew his nomination under a potential ethical cloud. Three strikes and you're out, Mr. President.

On the positive side, a Senator Pryor (R-AR) amendment (Section 2204) to the 9/11 Commission bill, HR 1, which is on its way to the President's desk, temporarily grants the CPSC a quorum with only 2 commissioners, so it can again issue rules and impose penalties and invoke mandatory recalls. It lost those powers when Stratton quit over a year ago. (The Fisher-Price and other recalls have all been voluntary; these can be negotiated by staff.)

It's time to restore the CPSC to an agency that can protect the American people, especially kids, from dangerous products from China and everywhere else. Let's hope that this latest China syndrome serves as a reminder that our consumer product safety system is a house of cards. Dangerous products come from home and from China, and from Mexico and other places, too. CPSC is under-funded and under-led and it lacks the enforcement authority it needs to provide an adequate safety shield. Ideally, Congress will re-authorize the agency and give it better enforcement tools and more money.

A new California law extends lemon law protection to military personnel based in California, even if their car was purchased in a different state. The bill was pushed by long-time lemon rights and car safety champion Rosemary Shahan and her group Citizens for Auto Reliability and Safety (CARS). The legislature enacted the law after the debacle faced by Lt. Nathan Kindig when Chrysler refused to grant him rights under the lemon law for his 2004 Dodge Dakota lemon truck.

In 1982, when I was with Connecticut PIRG, we helped pass the nation's first new car lemon law. At the time, we were only a few weeks ahead of passage of California's law, where Rosemary Shahan was leading the way.

Lemon laws have now been enacted in every state. They solved the myriad legal problems consumers faced when they bought a car from a dealer that didn't work. Lemon laws generally define a lemon (a new car that has the same major unfixable defect 3-4 times during warranty, or is in the shop 30 days during warranty, for example) so consumers no longer have to prove their particular car is a lemon in court (previously, they did). Lemon laws also give consumers an explicit legal right to sue a manufacturer, something that they didn't have, which also crippled many lawsuits. Lemon laws also streamlined the legal process. A few states have enacted similar laws for used cars.

The new California law is the latest example of laws designed to meet the special needs of our underpaid military personnel, who are often targets of unfair predatory practices. The law simply provides the same protections to in-state military personnel that other residents enjoy. Recently, the Congress has recognized that in some cases, military personnel need even greater rights. In 2003, stronger rights for military personnel to prevent identity theft (active duty military fraud alerts) were established. In 2006 rights against predatory lending (although rules on this are not yet final and aren't as good as we would like) were enacted.

The latest from China, and now appearing on the CPSC recall page, the incredible hand-launched, but explodes in your face model plane:

Donald Mays, a senior official at Consumers Union and Consumer Reports, was among the witnesses at a Senate Commerce hearing on China and product and food safety. The committee should post testimony for all witnesses soon. At the hearing, Mays unveiled an 8 point Consumers Union/Consumer Federation of America import safety plan:

The consumer groups propose pre-shipment inspections and testing, creating a U.S.-based certification program for products and a traceability program for food, products, and all components and ingredients in order to hold producers, importers, distributors, and retailers, more accountable. The groups also endorse requiring importers to post bonds to ensure sufficient resources are available should a recall of a product be necessary. The action plan includes giving all government watchdog agencies mandatory recall authority, the power to levy meaningful civil penalties and requiring safety investigations to be publicly disclosed.

Although this picture is bizarrely still up on the State FDA webpage today, China has executed Zheng Xiaoyu, its FDA commissioner, for taking bribes totaling at least $850,000 to approve dangerous products that caused numerous deaths. From state China View news site:

"Zheng's dereliction of duty has undermined the efficiency of China's drug monitoring and supervision, endangered public life and health and has had a very negative social impact," said SPC [Supreme People's Court]. The bribes taken by Zheng, including cash and gifts, were received either directly or through his wife and son, according to the court. The court said Zheng "sought benefits" for eight pharmaceutical companies by approving their drugs and medical devices during his tenure as China's chief drug and food official from June 1997 to December 2006.

The Chinese government has stepped up its efforts in recent weeks, announcing a series of measures aimed at strengthening food and drug safety and cracking down on counterfeiting. The government said Tuesday that it was preparing to release its first regulation on nationwide food recalls. The government also said it would initiate new rules to stop food products from being illegally exported, bypassing food inspections.

We testified today before the Consumer Subcommittee of the House Energy and Commerce Committee on a series of product safety bills. At the last minute, the acting chair of the Consumer Product Safety Commission (CPSC), Nancy Nord, refused to testify because she wasn't given her own personal panel and would have had to sit at the same table as me and Sally Greenberg of Consumers Union. When the perceived trappings of high government officialdom are more important to an official than what subcommittee chair Bobby Rush justly called "doing the people's business," there is something very wrong.

Just a day before a scheduled Senate confirmation hearing, longtime industry lobbyist Michael Baroody withdrew his nomination to chair the Consumer Product Safety Commission (CPSC). Along with numerous allies, we'd opposed the nomination of this unqualified applicant who'd spent his career as a general in the war on consumer and worker protections. According to news stories (Washington Post and New York Times), Baroody may not have wanted to discuss a questionable $150,000 severance bonus from his employer, the National Association of Manufacturers. Now, we urge the President to look for an applicant who meets the statutory requirement: being a consumer safety expert. Three strikes and you're out, Mr. President. In 2001, the Senate Commerce Committee voted down the nomination of Mary Sheila Gall. The subsequently approved chairman, who resigned in 2006 to become a lawyer-lobbyist, Hal Stratton, had a lackluster tenure. Consumers, especially the very young and the very old who cannot protect themselves, deserve better.

Seeking to head off the efforts of the growing PIRG-backed movement to require all movies containing smoking (except historically accurate movies about figures such as Winston Churchill or Edward R. Murrow) to have an R-rating, Hollywood's Motion Picture Association of America has announced plans that will keep the tobacco industry happy. Cecil B. Wilson, MD, board chair of the American Medical Association has released an official statement:

"The Motion Picture Association of America's (MPAA) decision to 'consider smoking as a factor' when rating movies does nothing to ensure that children and teens are not exposed to and influenced by on-screen smoking. By failing to implement a mandatory R-rating system for smoking in movies, the MPAA has ignored the gravity of the health threat that on-screen smoking poses to children and teens."

Our ally Public Citizen has released an investigative report (here's the shorter release) explaining why Michael Baroody, a top National Association of Manufacturer's official who is the president's nominee to chair the Consumer Product Safety Commission, should be rejected. The report explains that Baroody would be the classic fox in charge of the henhouse. It documents that NAM members lobbied successfully last year to get the CPSC to weaken dangerous product disclosure rules that saved lives and resulted in millions of dollars in fines paid by NAM members. Excerpt:

Last year, NAM and its allies successfully pressed the CPSC to weaken the sharpest enforcement tool in its arsenal – a safeguard that requires companies to disclose hazardous products – showing that a clear conflict-of-interest afflicts Baroody's nomination.

NAM's motive for weakening the safeguards? Money. An analysis by Public Citizen shows that the rule has netted more than 80 percent of the agency's fines since 1997 – and NAM members and affiliates have accounted for more than half of those payments.

Baroody's position "is the same as saying 'I'm against fire-safe cigarettes,'" says Jim Shannon, who heads the National Fire Protection Association, a fire-safety group that writes model fire codes used by dozens of state and local governments. "The tobacco companies have adopted this tack because they know that if they can get it kicked over to the CPSC, they can get it tied up for years."

Read this series! Reporter Patricia Callahan's two part Chicago Tribune series [Saturday: Toy Magnets Kill Young Boy and Monday: Inside the botched recall of a dangerous toy, free reg. may be required] is a powerful warning that the Consumer Product Safety Commission (CPSC) often fails to protect the public from foreseeable and preventable hazards. Callahan re-tells the tragic story of the death of young Kenny Sweet from ingestion of powerful magnets that the CPSC had already been warned about to tell the story of the agency's flaws. Her story is powerful and accurate. Here's her Part I lede, which starts with a boldface subtitle kicker that tells it all:

A captive of industry, the Consumer Product Safety Commission lacks the authority and manpower to get dangerous child products off store shelves. Sharon Grigsby pleaded with the operator at the federal safety hot line. A popular new toy, Magnetix, nearly killed one of her preschoolers. Please do something, Grigsby remembers urging. [...]Only emergency surgery saved his life. If this product isn't recalled, Grigsby remembers warning, children will die. The U.S. Consumer Product Safety Commission responded with a form letter.

We've joined leading consumer groups including Consumer Federation of America, Public Citizen and Consumers Union in official opposition to the President's nomination of Michael Baroody, the executive vice president of the National Association of Manufacturers, to chair the Consumer Product Safety Commission. (Our joint news release and white paper.) Baroody has long been a general in the war against consumer and worker safeguards. Putting him in charge of product safety is a classic fox in charge of the henhouse situation.

We take this nomination seriously. We only oppose nominees -- judicial or executive branch -- whose extreme positions and/or lack of qualifications go far beyond mere reflection of the President's views and the approval of the nominee would pose severe threats to consumers or the environment. MORE:

The CPSC is one of America's smallest, but most important safety agencies. It has jurisdiction over 15,000 different consumer products, from escalators to stoves to toys and other children's products. If defective, many of the products it regulates pose the threat of greatest harm to consumers least able to help themselves: children and the elderly. It is critical that the CPSC hold manufacturers of dangerous products accountable. Yet NAM, run on a day-to-day basis by its EVP Michael Baroody, has led the fight to over the years to keep the CPSC's budget low and to limit its power to recall or even conduct investigations of dangerous products. In such a difficult regulatory environment, only a chair willing to use all the limited regulatory tools at his or her disposal -- while also standing on a bully pulpit -- can hope to protect the public effectively.

Yet Baroody's lack of statutory qualifications as a safety expert and his history as an opponent of consumer laws suggest that he would instead likely move to dismantle the agency's already limited authority to protect consumers.

-- Baroody led NAM's unsuccessful opposition to NYPIRG's and fire fighter organizations' historic campaign to enact fire-safe cigarette legislation, now emulated by nearly ten states. That product safety legislation is expected to save hundreds of lives/year and billions of dollars/year in property damage reductions as it expands nationwide.
-- Baroody led NAM's successful opposition to Clinton-era worker safety ergonomics rules that had been backed by solid science.
-- NAM's CPSC Coalition -- comprised of companies under the agencies' jurisdiction, many of which have been fined for violations -- has successfully defeated efforts by Rep. Schakowsky (IL) and other champions to improve the CPSC's authority and increase its funding. NAM's Coalition recommends weakening the agency's powers further.

Simply, Baroody is the wrong person for the job of protecting the American public from unsafe products.

We held a news conference yesterday with Public Citizen and Consumer Federation of America to warn consumers that many kitchen stoves can easily tip over and crush or burn consumers, especially children or the elderly. Manufacturers are making cheaper, lighter-weight stoves prone to tipping over. While stoves should not be inherently unsafe, retailers are also failing to comply with a voluntary safety standard requiring that stoves have a safety bracket holding them to the wall. Here is our news release. In February, U.S. PIRG and the CFA had sent a letter to the CPSC asking for more information about burns, deaths and injuries, as well as details about why no action is being taken to enforce the voluntary standard. We've had no reply. More information is available at the website killerstoves.com. The event was covered by the Washington Post (story) , CNN, AP, Miami Herald, Reuters, C-Span and other outlets.

House Energy and Commerce chair John Dingell (D-MI), along with oversight subcommittee chair Bart Stupak (D-MI) are looking into the matter. Excerpt from our release:

WASHINGTON, D.C. - Approximately 15 to 20 million kitchens in the United States are equipped with a range that can tip over and crush, scald or burn whoever is standing in front of it, consumer groups warned today in a press conference at the National Press Club. Public Citizen, U.S. PIRG and the Consumer Federation of America detailed the longstanding problem in most brands of electric and gas ranges that affect households throughout the country.

According to documents from the Consumer Product Safety Commission (CPSC) and the national retailer Sears, manufacturers and the government have known about this lurking danger for more than twenty years. Since the early 1980s, manufacturers of ranges began using lighter-gauge steel to reduce costs, even though they quickly learned that this resulted in a tendency for the lighter-weight appliances to tip over when weight was applied to the oven door.

From the CPSC -- The U.S. Consumer Product Safety Commission (CPSC) announced today that Fisher-Price Inc., of East Aurora, N.Y., has agreed to pay a $975,000 civil penalty. The penalty, which the Commission has provisionally accepted, settles allegations that the company failed to report to the government that a nail fastener in the Little People Animal Sounds Farm could separate from the toy and pose a serious choking or aspiration hazard to young children...

Companies are supposed to report consumer complaints or other information within 24 hours to the CPSC. So, what part of the following CPSC regulation did one of the biggest toy companies in the world not understand?

Each must notify the Commission immediately [within 24 hours] if it obtains information which reasonably supports the conclusion that a product distributed in commerce (1) fails to meet a consumer product safety standard or banning regulation, (2) contains a defect which could create a substantial product hazard to consumers, (3) creates an unreasonable risk of serious injury or death, or (4) fails to comply with a voluntary standard upon which the Commission has relied ...Such information includes consumer complaints, warranty returns, insurance claims or payments, product liability lawsuits, reports of production problems, product testing or other critical analyses of products, and the like.

In September 2002, the company received its first report of a nail fastener coming loose from one of the toy barn's stall doors. Over the next two months, Fisher-Price received nine additional reports, including one case of a child placing the nail fastener in her mouth. By February 2003, Fisher-Price had received two reports of parents concerned that this problem posed a choking hazard to children and a report of a December 30, 2002 incident in which a 14-month old child aspirated a nail fastener into his lung. The child was taken to the hospital and underwent an emergency surgical procedure to have the metal nail fastener removed. It was not until March 2003 that the company reported the safety hazard with the Little People® Animal Farm to the Commission. By that time, Fisher-Price was aware of at least 33 reports in which the nail fastener came loose from the stall doors. These included four reports of children who put the metal nail fastener in their mouths and the one case of the child who aspirated the nail fastener.

Rumors continue to swirl in Washington (San Francisco Chronicle columnist David Lazurus and the Consumer Affairs site have detailed entries), about the possible appointment of industry lobbyist Michael Baroody to the vacant chairmanship of the Consumer Product Safety Commission (CPSC). As far as we know, the Senate has not even received a nomination, so the notion of a stealth recess appointment of an industry lobbyist to a consumer job is insulting to that body. But then again, Bush's abject failure to make either a timely or consumer-oriented nomination is a demonstrable failure to the American people. Since the agency has had no chairman for six months, under its rules it no longer has a quorum to conduct business, including to impose penalties on wrongdoers. This week, Senator Mark Pryor (D-AR) moved a bill through Senate Commerce to fix that problem, but it is not yet law. We don't have an official position on the non-nomination of Michael Baroody of the National Association of Manufacturers to chair the nation's consumer product agency, but we are certainly not impressed that the President thinks he can sneak an industry lobbyist in on Lincoln's Birthday. We can easily think of a half-dozen consumer advocates who could and should fill the job. Our previous blog on the departure of former Chairman Hal Stratton.

From our allies at the Center for Food Safety:

a Federal Court has ruled, for the first time ever, that the U.S. Department of Agriculture failed to abide by federal environmental laws when it approved a genetically engineered crop without conducting a full Environment Impact Statement (EIS)..."For those farmers who choose to grow non-genetically engineered alfalfa, the possibility that their crops will be infected with the engineered gene is tantamount to the elimination of all alfalfa; they cannot grow their chosen crop."

Yesterday, the Food and Drug Administration (FDA) proposed modest improvements to its drug safety efforts. Response from Congressional critics was swift: not good enough. We expect to work with Congressional champions of FDA reform, including Rep. Henry Waxman (D-CA), and Senators Enzi (R-WY), Grassley (R-IA), Dodd (D-CT) and Kennedy (D-MA) and others on a variety of legislative efforts to improve both the funding and independence of the FDA's post-market safety efforts and the transparency of clinical drug testing.

Over the last fifteen years, under pressure from powerful drug manufacturers, the mission of the FDA has been distorted by an increase in user-fee funding that could largely only be used to approve new drugs, without concomitant increases in funding for critical post-market safety reviews. This created an over-emphasis on approving these new drugs at the expense of programs guaranteeing the safety of drugs already on the market. As we pointed out in 2005 comments to the Institute of Medicine:

Since the passage of the Prescription Drug User Fee Act (PDUFA), funding for most of the FDA's critical drug research functions-with the exception of new drug approval-has declined. In the past 11 years, spending on new drug reviews increased from 53 percent to more than 79 percent of the agency's drug center budget.

The agency gets about $400 million of its $1.9 billion budget from fees assessed on drug makers. Under a formula negotiated with the drug industry, this money comes with strings attached. One restriction was that the F.D.A. could use little of the money to track the safety of approved drugs. That deal between the F.D.A. and drug makers expires this year, and the drug companies have agreed to allow more of their money to be used for postmarket safety assessments. Whether those fees are enough, whether there should be any strings attached to them and whether that money should be coming from drug makers at all has become the subject of fierce debate.

As we have previously noted, the CPSC has been reviewing the health effects of lead in children's jewelry. This week, the commission voted to grant a petition from the Sierra Club to begin a rulemaking on a ban. We hope it's an expedited one with quick implementation but it may take a year or more. Here is a statement by U.S. PIRG research director Alison Cassady:

For Immediate Release: 12/12/2006 Contact: Alison Cassady, 202-546-9707

U.S. PIRG News Release
Consumer Group Commends Consumer Product Safety Commission for Banning Lead in Children’s Jewelry

Yesterday, the Consumer Product Safety Commission (CPSC) took a long overdue first step toward banning lead in children’s metal jewelry. We have known for decades that lead can cause permanent developmental damage in children or even death, so we commend the CPSC commissioners for voting to protect children from lead exposure by granting a Sierra Club petition calling for this ban.

In November, U.S. PIRG released its annual Trouble in Toyland report, where we showed just how easy it is to find children's jewelry containing high levels of lead on store shelves. Our researchers found four items of children's jewelry that contain lead levels ranging from 1.8 percent lead to 34 percent lead by weight. The CPSC voted to move forward with a ban on any children's metal jewelry containing more than 0.06 percent lead by weight.

We look forward to working with the CPSC as it begins a lengthy rulemaking process to implement a ban on lead-laden children’s metal jewelry. The new regulations should guarantee the strongest possible safeguards for children’s health while allowing states to enact more protective standards.

In response to a Sierra Club petition, the U.S. Consumer Product Safety Commission (CPSC) staff has proposed to the commission (staff memo (large scanned pdf) and Washington Post story) that lead in children's jewelry be banned. A vote could occur this month. There is no reason for manufacturers to add lead to jewelry, except that it is cheap and heavy and makes the junky product seem more impressive due to the heft. The CPSC clearly has the authority to take this action under the Federal Hazardous Substances Act and the Consumer Product Safety Act. For U.S. PIRG's November 2006 report Trouble In Toyland, we had a commercial lab test some sample jewelry we'd purchased in various stores and found lead content up to 34% by weight. From our release:

Lead in Jewelry: Children exposed to lead can suffer delayed mental and physical development or even death. In February, a four year old died of lead poisoning after he swallowed a bracelet charm that contained 99% lead. U.S. PIRG researchers went to just a few stores and easily found four items of children’s jewelry that contain high levels of lead, ranging from 1.8% lead to 34% lead by weight.

Looks as if pressure from U.S. PIRG (our campaign materials), other public health groups and environmental champions in the Congress has forced EPA to re-think a "dumber-than-dirt" plan to roll back the reporting of toxic chemical hazards, as Juliet Eilperin reports in today's Washington Post story EPA Backtracks on Easing Toxin Rule.

Today, PIRG released its 21st annual Trouble In Toyland report (scroll to the bottom for additional resources, including a color brochure). The reports have resulted in well over 120 recalls and other actions by the Consumer Product Safety Commission (CPSC) and toy manufacturers. This year's report emphasizes toys that pose choking, excessive noise, acute and chronic toxic and magnetic ingestion hazards. Here's an ABC-7 news story with video, featuring report author Alison Cassady (That's Alison, surrounded by toys, in the photo top left; the photo right features PIRG intern Melissa Paradez holding a water yo-yo as she does a Spanish-language interview with Telemundo). Note, although we haven't yet added information about magnetic and lead toy hazards to our Spanish toy safety brochure, it still includes a number of other important toy safety tips.

This year, among other hazards, we focused on the serious problem of children ingesting the new breed of powerful tiny magnets (previous blog about a March CPSC-announced "replacement" program for Mega-brands Magnetix toys) after at least one child, Kenny Sweet, died. Today, the CPSC announced a new magnet recall, this time of 2.4 million Mattel Polly Pockets toys, after reports that 3 children required intestinal surgery from complications caused by swallowing more than one magnet. Our advice to parents: if a child swallows a magnet, seek medical attention. Here's an excerpt from a Washington Post story by Annys Shin:

Magnets, which have become smaller and more powerful, have become a potential safety hazard in toys for children. Neodymium iron boron magnets in particular, which are used in children's building sets and jewelry, are so strong that if swallowed or aspirated, the attraction between them can pinch internal organs enough to kill surrounding tissue or tear through it, and even cause death.

I have a 5 year-old son, and every year I review your report before going shopping. Last year you issued your first warnings about Magnetic building toys. My husband wanted to buy our son one of these toys. We talked about it after I read your report, and we decided not to get it. My mother-in-law though thought they were a great idea, and bought my son a set anyway. My husband thought I was being overprotective in not letting our son play with the toy alone, and storing it in a high cabinet. After a week or so, my son forgot about the toy.

I then read about the first reported incidents with children as old as 5 swallowing or inhaling the magnets. My husband and I talked about it, and decided to throw the toy away. Luckily we did - a few days after throwing it away, I was vacuuming and found one of the ball magnets. My son picked it up and ran to put it in his play room, he stopped looked at me and said - gee Mom this looks alot like a grape I wonder if it tastes like one. Luckily his father was right there too, and he no longer thought I was being over protective.

Really I just wanted to thank you for all of the time and effort you put in. I'm sure your hard work saves alot of children's lives.

Happy Holidays

Lorrie

Yesterday the Supreme Court heard oral argument in a power plant pollution appeal brought by Environmental Defense, North Carolina PIRG and the North Carolina Sierra Club. Here's our brief in Environmental Defense et al v. Duke Energy Corp et al. Here's a few news reports (Lexington (KY) Herald-Leader and Portland (ME) Press-Herald, explaining some of the complex issues.

Also, yesterday, U.S. PIRG joined the American Legacy Foundation, Campaign For Tobacco-Free Kids, Public Citizen, Consumer Federation of America and other public interest groups in a petition urging the Court to review a decision of the Illinois Supreme Court that overturned a lower-court verdict awarding billions of dollars in damages to Illinois smokers in a so-called "lights" cigarette case. The implications of this case extend beyond tobacco control and, unless overturned, it could weaken the right of state enforcers to bring unfair and deceptive claims against any wrongdoer. [Note: In September, a U.S. judge certified a national class action in another "lights" case (previous blog).]

In Reluctance and Silence On Recalls in Saturday's New York Times, Damon Darlin talks to some product safety colleagues about the general ineffectiveness of dangerous product recalls by the Consumer Product Safety Commission (CPSC). While PIRG has often been at odds with CPSC leadership, and led a successful 2001 campaign to defeat President Bush's nomination of then-commissioner Mary Sheila Gall to become its chair, some of the CPSC's problems are not its fault. MORE:

Its enabling legislation was written with the considerations of powerful special interests, not safety, in mind. First, the CPSC is generally forced to negotiate modest voluntary recalls, because otherwise the one-sided rules would allow even-not-so-clever industry attorneys to use a variety of obvious tactics to delay and slow down the CPSC's proposal for stronger recalls. The CPSC has to decide quickly when it has extracted enough promises to go forward, and even then, the industry gets to approve the terms of any statements about the "voluntary" recall. Often, as in a recent case involving at least one toddler death and several injuries from ingestion of small magnets, the CPSC must settle for a compromise. In the magnet case, the compromise was for a replacement program where remaining inventory stayed on the shelves and can still be sold, even though the company agreed to replace products sent back by parents or caregivers. As the website magnetscankill points out

Only one problem! This was a voluntary program, and due to the manufacturer Rose Art's unwillingness, retailers were not required to remove the toys from the shelves. Mega Bloks went right on selling Magnetix and Magnaman while offering to replace any Magnetix sets that parents felt "uncomfortable with". Stores were supposed to prominently display signs about the recall for 90 days, but most didn't. Anyway, what would you think if you saw a warning notice next to a box on the shelf? Wouldn't you assume the packages for sale in front of your very eyes were a new version with whatever flaws fixed? Actually, consumers couldn't tell if any improvements were made since there were no "before" and "after" markings disclosed. Tragically, more children were injured, requiring intestinal surgery, from magnets they consumed AFTER the March 31 voluntary product replacement notice. The word just hasn't gotten out well enough.

The CPSC's recalls, and even its investigations, are stuck under a veil of corporate secrecy imposed by the tortured language of so-called Section 6(b) of the Consumer Product Safety Act (it's full citation is 15 U.S.C. 2055(b)(1)-(5)). Here's an excerpt from its implementing regulation:

Generally, section 6(b)(1) requires the Commission to provide manufacturers or private labelers with advance notice and opportunity to comment on information the commission proposes to release, if the public can readily ascertain the identity of the firm from the information...Section 6(b)(3) authorizes manufacturers and private labelers to bring lawsuits against the Commission to prevent disclosure of product-specific information after the firms have received the notice specified.

Obviously, the CPSC needs to be careful not to act recklessly in the handling of either trade secrets or corporate good names. Yet, other safety agencies, such as the FDA and NHTSA, do not labor under such a harsh set of rules that hurt, not help, safety efforts. We generally support the recommendations to reform the CPSC in recent testimony by our former PIRG colleague Rachel Weintraub, now with the Consumer Federation of America.

News reports and a PR news release report that Canadian toy maker Mega Brands has settled suits over one death and several reported injuries due to accidental ingestion of small but powerful toy magnets in Magnetix toys. The website Magnetscankill has more information about the death of 22 month old Kenny Sweet, Jr. and other information about the threat posed by the new breed of powerful small magnets available in toys from more than one manufacturer.

The Tobacco Products Liability Project at Northeastern University School of Law has posted a commentary analyzing yesterday's announcement that a federal judge had certified a "lights" cigarette case: MORE:

The plaintiffs alleged that the defendants conspired in a scheme to perpetrate a massive fraud on consumers by selling products that indicated or suggested lower tar and nicotine delivery when, in fact, these defendants knew that actual tar and nicotine delivery to smokers did not occur...Judge Weinstein's class certification is extraordinarily well-reasoned and researched...While the defendants will seek immediate appeal to the U.S. Court of Appeals for the Second Circuit, this certification may very well survive such an appeal as have 'light' class certifications in several states. If it does, there is little dispute about the underlying facts and likely findings."

Tragically, two toddlers have choked to death in separate incidents on toy nails that do not fail the Consumer Product Safety Commission's (CPSC) test for small parts banned for use in toys intended for children under 3 years old. Playskool is voluntarily recalling 255,000 units, even though the toy is intended by the manufacturer for older children and doesn't fail the test either. CPSC recall release. We've campaigned for years, as noted in our annual Trouble In Toyland reports, as have other consumer groups, to increase the size of the small parts tester. MORE:

The CPSC test is especially problematic when it comes to toys that don't actually fail the test but are shaped like wine corks and can literally "cork" a child's airway, as these toy nails are. We've also argued that manufacturer determinations of "age-appropriateness" are often skewed. From its pictures, this toy, although it has a number of parts, appears simple and brightly colored with rounded edges-- attributes of a toy parents might buy for younger children. As Don Mays of Consumers Union points out in a story in the Washington Post:

"That is a screening tool but not a panacea for catching choking hazards," Mays said. Mays believes the cylinder used for testing should be larger. Consumer Reports recommends that parents do their own test, using a tube from a roll of toilet paper. Mays also questioned the target age group for the Team Talkin' Tool Bench. "Clearly this is a toy that is attractive to a child under three," he said.

The prestigious Institute of Medicine has released a major new report: The Future of Drug Safety: Promoting and Protecting the Health of the Public. The report slams the Food and Drug Administration and calls for major Congressional and regulatory reforms to guarantee drug safety. From the story by Gardiner Harris in the New York Times:

The report's conclusions are often damning. It describes the Food and Drug Administration as rife with internal squabbles and hobbled by underfinancing, poor management and outdated regulations. "Every organization has its share of dysfunctions, unhappy staff members and internal disputes," the report said. But panel members said that they were deeply concerned about the agency's "organizational health" and its ability to ensure the safety of the nation's drug supply.

"The FDA appears to be focused on damage control rather than addressing its core problems. As a science-based agency, the FDA is remarkable for its lack of introspection, second-guessing, and failure to assess its own performance and capabilities in a systematic way."

Here's our consumer group letter opposing a House bill, HR 2567, granting immunity from liability to antifreeze makers who add a bittering agent so kids and pets won't drink their product. The bill overhwelmingly passed the House Energy and Commerce committee anyway. It's got a long way to go before it becomes law. Previous blog.

Along with Consumers Union and others, we filed comments opposing a Consumer Product Safety Commission plan to weaken rules requiring companies to notify the agency of potential safety hazards: From our joint comments:

In summary, this proposal is likely to jeopardize the Commission's ability to receive important product safety information that serves as a critical tool for their consumer protection function.

In an important effort to stop cigarette fires, Massachusetts Governor Mitt Romney signed a MASSPIRG-backed fire safe cigarette law yesterday. Massachusetts is the sixth state to require that unattended cigarettes go out. From MASSPIRG's release:

Cigarette-ignited fires are the leading cause of home fire deaths in Massachusetts and nationwide, killing 700 to 900 Americans each year according to the National Fire Protection Association. According to the most recent year of analyzed fire data, cigarettes caused 1,386 fires in Massachusetts.

One of the nation's chief safety regulators, Consumer Product Safety Commission Chairman Hal Stratton has announced his resignation (Washington Post). He's had a largely indifferent to anti-consumer tenure at the commission. MORE.

Although CPSC did impose a few big fines while he was there, and he did open negotiations with the Chinese to improve safety of their product pipeline into the U.S., he'll be best remembered for pushing through a mattress flammability rule that asserts broad preemption of state law legal remedies. If upheld by the courts, that rule will prevent consumers from obtaining fair compensation for horrific burn injuries. In addition, our previous blog explains that without the threat of paying compensation, companies will have little incentive to improve products, even with the new rules. And recently, for no legitimate reason at all, the commission has proposed a twisted new loophole-ridden interpetation of its strong and clear rule requiring companies to notify the CPSC of defective products. The result will be that the safety agency will not learn of problems. These two actions undercut consumer protection and will not look good to historians of safety.

Last week, my colleague Jim Murray, director of the European consumer organization BEUC, and I represented the Transatlantic Consumer Dialogue (TACD) at a meeting with senior U.S. and European Union trade officials during the US/European economic summit held in Vienna, Austria. Here's some background before I explain our concerns about chemical safety. MORE.

Also attending were two representatives of the Transatlantic Business Dialogue. TACD and TABD each regularly (and separately) provide our views to the governments and for the last several years this joint meeting has occurred during the summit. There are actually a few matters, such as providing greater transparency and public input in trade decision-making, where TABD and TACD agree. But on most issues, we diverge. At this meeting, Jim and I discussed several issues detailed in our TACD summit statement, primarily associated with our opposition to intrusive intellectual property rights regimes backed by the governments that treat consumers as pirates and diminish consumer enjoyment of properly-purchased digital music and videos.

We discussed one additional area where we disagree with TABD and also with the U.S. government, which is on the need for strong laws to protect the public from chemical risks. U.S. chemical safety laws are notoriously weak, and consumer and environmental groups, as well as labor unions, on both sides of the Atlantic vigorously support a proposal known as REACH (Registration, Evaluation and Authorisation of Chemicals) that has been wending its way through the European Parliament. At the meeting, we strongly criticized the U.S. government's longtime influence-peddling in the European Parliament against REACH. PIRG (statement to USTR), BEUC (its Chemical Cocktail website) and TACD (policy statement) have supported strong chemical laws and criticized U.S. meddling on REACH in the past. In particular, in Vienna, we were critical of recent anti-REACH remarks to an international business group by C. Boyden Gray, the new U.S. Ambassador to the European Union.

Gray is a longtime Bush family insider who served in the first Bush White House but has lately been more known as a deregulatory activist in a number of industry lobby campaigns (Gray backgrounder from Center for Media and Democracy). The appointment of the activist Gray to what has long been seen as a ceremonial ambassadorship offered to very large campaign donors may signal a new era in US/EU trade relations, one where consumer and worker health and safety protections are at even greater risk of deregulation.

Here's U.S. PIRG's chemical safety and environmental health page and an excerpt from PIRG's REACH statement to USTR:

When implemented, REACH will have untold benefits for human health and the environment. The European Commission projected that REACH could prevent between 2,200 to 4,300 cases of occupational cancer each year, and prevent $61 billion in health care costs over a 30-year period of time. REACH also includes many benefits for the U.S. economy, human health, and the environment. Because chemicals in the environment know no boundaries, regulatory action taken on chemicals in Europe that have the ability to travel long distances will positively affect the U.S. For example, action taken in the EU on brominated flame retardants may help to decrease the levels found both here in the breast milk of mothers in the United States as well as in the bodies of polar bears in the Arctic.

An Australian newspaper, The Age, in a story Envoy Under Tobacco Cloud, quotes Sharon Eubanks, chief prosecutor in the US government case against the tobacco industry, extensively criticizing Associate Attorney General Robert McCallum for his role in undercutting the government's strong case against the tobacco industry and reducing its damages claim from $130 to $10 billion. Eubanks:

"I should be clear about this: Robert McCallum directed the position taken on remedies sought by the United States. It did not matter to him what the evidence actually demonstrated and supported, rather, it was only the bottom line that mattered to him -- the lower the better."

Cigarette fires cause cause some 1,000 deaths, 3,000 injuries and millions of dollars in property damage each year, according to NYPIRG. That's why the states are busy enacting legislation to require tobacco companies to make cigarettes that go out when neglected, rather than continue to burn, according to a USA Today front page story:

Tobacco companies have fought such mandates for decades, but their success appears to be waning: Since New York put the nation's first fire-safe cigarette requirement into effect in 2004, California and Vermont have passed similar laws. A fire-safe cigarette bill that passed in Illinois awaits the governor's signature, and a bill in New Hampshire is poised for a final vote this week.

What good is a right without a remedy? Increasingly, as consumer advocates, we fight the real threat that Congress will enact meaningless new laws without remedies, or that corporate lobbyists will convince Congress to dismantle previous remedies. Now, companies are trying to take away protections from whistleblowers. In a story, Whistle-Stop Campaigns, in today's Washington Post, Kathleen Day reports that "some firms are trying to limit protection of workers who expose wrongdoing."

Especially over the last thirty or more years, Congress has enacted a series of whistleblower protection statutes designed to protect government workers (including government contractor employees) who step up to expose government or corporate malfeasance or corruption. Day explains why the important Sarbane-Oxley Corporate Reform Act of 2002 (SOX), enacted in the wake of the massive Enron and Worldcom scandals, included whistleblower protections for corporate employees as well:

So when Congress passed the 2002 Sarbanes-Oxley Act with the goal of protecting investors, it included sweeping provisions to encourage employees to blow the whistle on corporate wrongdoing by shielding them from retaliation. Now those provisions are being tested, with attempts underway to narrow the scope of the act. This is troubling to the bill's supporters, who view whistle-blowers as a first line of defense for investors, fellow employees, retirees and ultimately the public at large, who could all benefit if a problem is uncovered before it causes major damage or ruin. Folks who trudge to the office each day without thought of becoming a gadfly may one day land in a situation in which their consciences require they act.

Even with whistleblower protections, winning a case is a big lift. SOX requires whistleblower complaints to go first to a Department of Labor review board. According to the Post story, of 750 complaints since the law took effect, only 4 whistleblowers have won and these cases are all on appeal:

The vast majority of these cases have been thrown out. Fewer than 100 have been settled. And only five whistle-blowers have won, though that number dwindled to four last summer, when the agency's administrative review board overturned a case on appeal. Companies have appealed three of the remaining four to the board, whose handful of judges so far have not decided an appeal in favor of a whistle-blower.

To limit the scope of the law, companies claim it only applies to certain types of allegations of lawbreaking, but not all. Others require employees to take claims to mandatory arbitation (our coalition website Givemebackmyrights explains the problems consumers, employees, small businesses and farmers face in their contracts with large special interests) instead of to court. In one case, the "allegation clearly is covered by the Sarbanes-Oxley Act, [a] court held, but that doesn't override the contract the worker signed agreeing to take complaints to arbitration."

The attack on whistleblowers is only part of the U.S. Chamber of Commerce's orchestrated attack on the broader Sarbanes-Oxley Act. And that attack is only part of the general corporate attack on consumer and employee rights generally. At the behest of powerful corporate interests:

-- Congress frequently enacts laws with no private right of action (the right of an aggrieved consumer to enforce the law by bringing a lawsuit against a violator).
-- Congress and state legislatures often cap the damages available to victims, who deserve adequate compensation for their injuries. Moreover, this threat of large punitive damages deters corporate misconduct in the first place.
-- While passing only weak laws itself, Congress is increasingly preempting state authority to enact stronger state laws.
-- Congress is also, in a relatively new assault on strong protections, restricting the right of state attorneys general to enforce federal consumer laws. That leaves consumers at the mercy of captive federal regulators, like the national bank regulator known as the Office of the Comptroller of Currency, which has rarely met a big bank it didn't like and protect.
-- Following issuance of OCC's sweeping rules limiting state protections in 2004, other Bush Administration agencies are scrambling to be the next kid on their block to protect powerful special interests from strong state consumer laws (more information here and here).

A little history, for those interested: Corruption isn't a new problem. The original whistleblower statute is the federal False Claims Act. It was enacted during the U.S. Civil War to counter a series of scandals over corrupt government contracting.

The derogatory term "shoddy workmanship" is derived from shoddy, the name of the cheap wool uniform fabric "described in a factual article in Harper's Monthly at the time as "a villainous compound, the refuse stuff and sweepings of the shop, pounded, rolled, glued, and smoothed to the external form and gloss of cloth, comprised of felt scraps glued together," that fell off the soldiers in pieces, "dissolving into their primitive elements of dust under the pelting rain" (Source, Civil War Definitions).

The False Claims Act is also known as the Qui Tam Law. It allows successful whistleblowers, as an incentive to come forward, to keep a share of the recovery. According to the consumer lawyers at Mehri and Skalet,

"qui tam" is an abbreviated Latin phrase that means "he who sues on behalf of the King as well as for himself." Qui tam plaintiffs are individuals who bring cases on behalf of the federal government, as well as for themselves.

If you are a government employee seeking to understand your own whistleblower rights, go first to the Government Accountability Project's Whistleblower.org pages. GAP's summary of SOX is here.

The Colorado House and Senate have passed a tough indoor air quality law that will essentially ban smoking in all places, except casinos. Here's COPIRG's release. Excerpt:

The bill took a long and bumpy road to get to this point. As originally introduced in the House, it would have required almost every enclosed work place and public place to be smoke-free, including restaurants, bars and casinos. The House exempted casinos and small employers that do not allow the public to enter before sending the bill to the Senate. The Senate then dramatically weakened the bill, adding exemptions for bars, private clubs, bingo and dog tracks. It took a conference committee composed of three members from each house to put the bill back into the form passed by the House of Representatives.

We're supporting amendments by Rep. Henry Waxman (D-CA) and others that attempt to improve the draconian National Uniformity for Food Act of 2005. The bill eliminates strong state laws requiring warnings about a variety of toxic and other threats in our food supply. Its passage would make it harder for state officials to fight bio-terrorism. It was supposed to go to the floor last week (previous blog) but opposition has been steadily growing and House leaders had to delay it.

The state PIRGs and other pro-health groups have long supported efforts to get smoking out of the movies. Hollywood never paid much attention. Former Motion Picture Association of America chief Jack Valenti retired rather than reply to an October 2002 letter from MASSPIRG following the release of its report Tobacco At The Movies, an analysis of smoking in PG-13 films. To gain more attention, over the last several years UCSF Medical School Professor Stan Glantz and his Smokefree Movies Project have run a series of ads in major national and entertainment newspapers laying out the problem and articulating a 4-part solution: (1) Rate future smoking movies R. (2) Certify no payoffs. (3) Require strong anti-smoking ads. (4) Stop identifying tobaco brands. Here's the latest PIRG-backed Smokefree Movies ad, which ran in Variety the day after the Oscars. In addition to PIRG, the campaign and its ads are endorsed by major health groups including the World Health Organization, the American Medical, Lung and Heart Associations, and the National PTA.

Citizens have a right to know what's in the food we eat and the products we buy, so we can make informed choices. Not so, says a proposal, HR 4167, expected to pass the House Thursday. Our letter to the House of Representatives urges a no vote. The National Uniformity for Food Act of 2005 is wrong-headed legislation designed purposely to eliminate well over a hundred different state food safety laws without replacing them with any federal protections worth writing home about.

The House has held no hearings on this controversial issue, but what the heck. Powerful special interests claim a need to eliminate strong state protections. The food industry leads the fight for this bill. Its crusade began with its anger over California's 1986 enactment of a tough citizen ballot initiative, Prop. 65, that requires warning labeling on all products (food, gasoline, paint, etc.) that contain toxic substances that could cause cancer or birth defects.
Our letter goes on to say:

In addition to nullifying proven food safety laws already on the books, HR 4167 would forever tie the hands of states and municipalities on a range of emerging food safety issues, whether or not the federal government has addressed public health concerns. Among other things, states and localities would not be able to regulate and label food products that contain irradiated ingredients, pesticides, antibiotics, or genetically modified organisms.

Federal legislation preempting state law would affect dozens of states, but the law that started the food industry’s crusade is California's Proposition 65. In 1986, California voters approved
Proposition 65, which requires warning labels on products containing chemicals known to cause cancer or birth defects. Consumers have the right to know if their food contains dangerous chemicals, and states and localities have the right to provide this information in the absence of strong federal standards. Although critics of Proposition 65 say varying state standards pose a burden to food manufacturers, past administrations have dismissed this claim. When asked by the food industry to preempt California’s law, President George H.W. Bush’s administration concluded in 1989 that "no Federal preemptive action – either by regulation or otherwise – is warranted." The Reagan-Bush administration came to the same conclusion.

U.S. Rep. Jan Schakowsky (D-IL), one of the leading consumer advocates in the Congress, has sent President Bush and the CPSC Chairman letters sharply critical of the recent CPSC action purporting to preempt state consumer rights. The letter to the President looks at the CPSC action as part of a broader pattern of agency actions that raise "the possibility that the Administration is engaged in a backdoor effort to limit consumers' access to the court system." Our previous blog.

(update corrected links, 26 June 07) This week, the U.S. Consumer Product Safety Commission passed what could have been a pro-consumer mattress flammability standard. Unfortunately, at the last minute, the agency added very troubling and unacceptable politically-motivated preemption language purporting that any manufacturer who complies with the new standard has a shield against consumer lawsuits for harm under state laws. Click Continue for more.

CPSC is supposedly an independent safety agency, but has joined FDA, NHTSA and other Bush Administration agencies in seeking to roll back long-standing state consumer protections. Here's our consumer group letter in opposition, with the Consumer Federation of America, Consumers Union and other leading groups. Here's a letter condemning the action from the ranking member (senior Democrat) of the Senate Commerce Committee, Senator Daniel Inouye (D-HI_. Here's PIRG's Preemption Alert, with more details on how the Bush Administration, some some elements in Congress and industry groups seek to limit the right of states to protect consumer health, safety and pocketbooks.