U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

69–010 

" ! SENATE 110TH CONGRESS

2d Session 

REPORT

2008

110–265 

Calendar No. 523 

CONSUMER PRODUCT SAFETY COMMISSION 

REFORM ACT OF 2007 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 2045 

FEBRUARY 25, 2008.—Ordered to be printed 


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(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

DANIEL K. INOUYE, Hawaii, Chairman 

TED STEVENS, Alaska, Vice-Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

BYRON L. DORGAN, North Dakota 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK R. LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

THOMAS CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

AMY KLOBUCHAR, Minnesota 

JOHN MCCAIN, Arizona 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

GORDON H. SMITH, Oregon 

JOHN ENSIGN, Nevada 

JOHN E. SUNUNU, New Hampshire 

JIM DEMINT, South Carolina 

DAVID VITTER, Louisiana 

JOHN THUNE, South Dakota 

ROGER F. WICKER, Mississippi 

MARGARET CUMMISKY, Staff Director and Chief Counsel 

LILA HELMS, Deputy Staff Director and Policy Director 

JEAN TOAL EISEN, Senior Advisor and Deputy Policy Director 

CHRISTINE KURTH, Republican Staff Director and General Counsel 

PAUL J. NAGLE, Republican Chief Counsel 

MIMI BRANIFF, Republican Deputy Chief Counsel 


wwoods2 on PRODPC68 with REPORTS
69–010 

Calendar No. 523 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–265 

CONSUMER PRODUCT SAFETY COMMISSION REFORM ACT 

OF 2007 

FEBRUARY 25, 2008.—Ordered to be printed 

Mr. INOUYE, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

[To accompany S. 2045] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 2045) to reform the Consumer Product Safety Commission to provide greater protection for children’s 

products, to improve the screening of noncompliant consumer products, to improve the effectiveness of consumer product recall programs, and for other purposes, having considered the same, reports 

favorably thereon with an amendment (in the nature of a substitute) and recommends that the bill (as amended) do pass. 

PURPOSE OF THE BILL

Established in 1973, the Consumer Product Safety Commission 

(CPSC) is an independent Federal health and safety regulatory 

agency that was created by the passage of the Consumer Product 

Safety Act of 1972 (15 U.S.C. 2051 et seq.) (CPSA). The CPSC has 

not been reauthorized since 1992, and its current statutory authority has limited the agency in monitoring and enforcing against entities participating in a global marketplace. In addition, the resources of the agency have been in decline for several years. 

The need for the agency and the product safety regime have been 

highlighted by a recent series of high profile nationwide recalls of 

noncompliant products. In addition to the recalls, there are continued reports of products with potentially deadly flaws that have 

been voluntarily recalled, yet are still readily available in the 

stream of commerce. S. 2045, as amended, would address several 

concerns about the CPSC, including but not limited to: increased 

CPSC resources; the creation of a joint enforcement regime with 


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2 

the States; the improvement of reporting requirements; the creation of new mandatory product standards; mandatory third-party 

certification of the safety of children’s products; stronger authority 

to manage imported product safety; and increased civil and criminal penalties. 

BACKGROUND AND NEEDS

The CPSC estimates that consumer products under its jurisdiction are related to 27,100 deaths and 33.1 million injuries each 

year. The agency estimates that the dollar cost of these deaths, injuries, and related property damage exceeds $700 billion annually. 

The Commission has four primary missions: 

• To protect the public against unreasonable risks of injury 

associated with consumer products; 

• To assist consumers in evaluating the comparative safety 

of consumer products; 

• To develop uniform safety standards for consumer products 

and to minimize conflicting State and local regulations; and 

• To promote research, investigation into causes for, and prevention of products-related deaths, illnesses, and injuries. 

In addition to the CPSA, the agency fulfills these missions via 

several statutes. The most significant of these corollary statutes include: 

• The Federal Hazardous Substances Act (15 U.S.C. 1261) 

(FHSA); 

• The Flammable Fabrics Act (15 U.S.C. 1191) (FFA); and 

• The Poison Prevention Packaging Act (15 U.S.C. 1471) 

(PPPA). 

The CPSC employs approximately 400 full-time employees 

(FTEs) who are responsible for monitoring the safety of more than 

15,000 different consumer products. The agency strives to accomplish its mission by: working in tandem with industry leaders to 

develop voluntary standards; conducting research on potentially 

dangerous products; issuing and implementing mandatory standards or banning consumer products if no reasonable standard to 

protect the public can be agreed upon; and obtaining recalls of 

products deemed unsafe or making arrangements for product repair. The agency does not have jurisdiction over products such as 

automobiles and other street-legal vehicles, tires, boats, tobacco, alcohol, firearms, food, drugs, cosmetics, medical devices, and pesticides. 

Currently, the CPSC operates as a three person Commission. 

The Commissioners are nominated by the President and confirmed 

by the Senate for staggered seven-year terms. Ms. Nancy Nord, a 

Republican, is the current Acting Chairman since the resignation 

of Mr. Harold ‘‘Hal’’ Stratton on July 15, 2006. She was confirmed 

on April 28, 2005, and her term expires in 2012. Mr. Thomas Hill 

Moore, the Democratic Commissioner, was reconfirmed on May 21, 

2004, with his term expiring in October 2010. Until the President 

nominates a third Commissioner, the CPSC will operate as a twoperson panel under a temporary quorum proviso. That temporary 

authority will expire in February 2008. 

Funding and Staffing Levels: The President’s fiscal year (FY) 

2008 budget proposed to fund 401 FTEs, the fewest number in the 

agency’s 34 year history, and to provide only $63.25 million to operVerDate Aug 31 2005 06:38 Feb 28, 2008 Jkt 069010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

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ate the agency. The agency has undergone attrition in anticipation 

of this funding level and is slightly below 400 FTEs at this time. 

Funding for the CPSC has remained essentially flat for FY 2005 

through FY 2007, forcing staff decreases of 31 FTEs in FY 2006 

and approximately 20 FTEs in FY 2007. Since 2000, the CPSC has 

lost approximately 79 FTEs. The size of the CPSC workforce today 

is less than half its size at the end of the 1970’s. The Consolidated 

Appropriations Act of 2008 contains $80 million for the operation 

of the CPSC for FY 2008. This bill was signed into law (P.L. 110– 161) on December 26, 2007. 

Quorum: Section 4(d) of the CPSA provides that three members 

serving at the Commission constitute a quorum, which is necessary 

for the transaction of business. If there are only two Commissioners because of a vacancy, two members constitute a quorum for 

six months after the vacancy was created. The CPSC operated 

without a quorum from January 2007 to August 2007, when a temporary quorum was extended by an amendment to H.R. 1, the Implementing Recommendations of the 9/11 Commission Act of 2007 

(P.L. 110–53) (‘‘9/11 Act’’), which was signed into law on August 3, 

2007. That quorum extension expired on February 3, 2007. Without 

a quorum, the Commission cannot conduct any business requiring 

a vote, including rulemakings or civil penalties, or hold public hearings. 

Conversions of Employees from Noncareer to Career Positions: In the General Accountability Office’s (GAO) Report Personnel Practices: Conversions of Employees from Noncareer to Career Positions May 2001–April 2005, the CPSC was highlighted for 

promoting a nonqualified appointee working for then Chairman 

Stratton to a Senior Executive Service (SES) position. The case is 

detailed on page 68 of the report (GAO–06–381, May 2006). 

Case 16: Consumer Product Safety Commission (CPSC): 

Positions: From Schedule C Appointment, GS–0301–15/10, 

Special Assistant, Office of the Chairman, Consumer Product Safety Commission: 

To ES–0340–00/00, Director, Office of International Programs and Intergovernmental Affairs, Office of the Executive Director, Consumer Product Safety Commission: 

Issue: Agency did not appear to address [Office of Personnel Management (OPM)] qualification concerns about 

the conversions in a substantive manner: 

Details: Prior to applying for the career position, the 

eventual selectee had served for over a year as a Schedule 

C Special Assistant in the office of the Chairman. According to his resume, as a Special Assistant, the eventual selectee directly supported the Chairman by (1) providing 

senior level policy advice on current and developing issues, 

(2) preparing written materials for presentation at external speaking engagements, (3) acting as a liaison with internal and external parties, and (4) drafting documents as 

needed. 

On November 14, 2003, CPSC posted a vacancy announcement for the SES career position of Director, Office 

of International Programs and Intergovernmental Affairs. 

Based on the vacancy announcement, the director would 


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oversee and coordinate the Commission’s international and 

intergovernmental efforts related to product safety standards. The desired qualifications listed in the announcement closely matched the eventual selectee’s previous experience in the private sector, and as an elected official to 

the New Mexico State Legislature, as listed on his resume. 

Twenty-four applicants applied, and of these, nine were 

considered qualified for the position and assigned numerical scores. The eventual selectee received the highest numerical score and the selecting official selected him for the 

career position on December 19, 2003. 

Because this is an appointment to the career SES, CPSC 

submitted the selectee’s case to OPM for approval on February 13, 2004. An OPM administered [Qualifications Review Board (QRB)] denied the agency’s request citing 

weakness in three of the five Executive Core Qualifications 

(ECQ). The QRB also noted that the selectee’s lack of managerial experience would be a handicap to successful performance in the SES. Based on comments from CPSC’s Executive Director, the selectee revised his ECQ statement 

by citing different examples from his experiences. Although the selectee refers to his ‘‘career as a senior manager and leader’’ the only concrete examples he provided of 

his experiences in the ECQs relate to his 15-month position at the CPSC or his 2-terms as an elected official in 

the New Mexico State Legislature. However, in describing 

his specific role and duties for each of these positions on 

his resume, he does not mention managerial or supervisory 

duties for either. Using the revised ECQs, CPSC resubmitted its request. OPM pointed out that the resubmission 

was provided to a different QRB, which was not involved 

or familiar with the initial QRB’s concerns or decision. 

This QRB approved the appointment on April 2, 2004. 

Conclusions: Although the selectee modified his second 

submission to OPM, the primary basis for the selectee’s 

qualifications remained his experience from the 15-month 

appointment at the CPSC and 2-terms as a State Representative. It is unclear whether or how this revised submission addressed the concerns raised by the initial QRB 

regarding the candidate not meeting the ‘‘demonstrated executive experience’’ required for SES positions by 5 U.S.C 

3393, or the ‘‘well-honed executive skills and broad perspective of government’’ recommended by OPM guidance 

on the SES. 

The Committee is concerned about the anomalies in the employment selection process as evidenced in the GAO report. The Committee would strongly encourage the CPSC develop a human resource selection protocol to ensure that non-political Commission 

staff have clear opportunities for development and promotion, and 

that candidates for SES positions be technically qualified for the 

demands of the position. 

Civil Penalty Caps: In 1972, Congress passed the CPSA with 

penalties of $2,000 per violation up to $500,000 for any related series of violations. In 1990, Congress raised the penalty amounts in 

recognition that the previous penalties had been insufficient to moVerDate Aug 31 2005 06:38 Feb 28, 2008 Jkt 069010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

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tivate compliance and had not kept pace with inflation. Congress 

raised the penalty amount to $5,000 per violation up to a $1.25 

million cap for a series of related violations and added a cost of living adjustment (COLA) factor. Congress also added penalty authority under the FHSA and the FFA. 

On January 1, 1995, the first COLA pushed the penalties to $6,000 per violation with a $1.5 million cap. On January 1, 2005, 

the COLA increased penalties to $8,000 per violation with a $1.825 

million cap. The largest civil penalty ever levied by the CPSC was 

against Graco Children’s Products for $4 million. The penalty combined fines for seven different products that violated the CPSA. 

The CPSC entered into a settlement with Graco, which failed to report more than 12 million products that imposed dangers to children over an 11 year period. 

A comparison of current CPSC penalty authority highlights differences in enforcement regimes for consumer protection and consumer safety. The Federal Trade Commission has uncapped civil 

penalty authority (15 U.S.C. 45(m)). In 2002, Schering-Plough 

agreed to pay a $500 million fine as a result of a Food and Drug 

Administration investigation into the company’s drug manufacturing practices. Some States may have stronger penalties than the 

CPSC in protecting consumers from dangerous products. For example, in 2003, the State of New York fined Dow Chemical $2 million 

for misleading consumers about the safety of its pesticides. 

Preemption of State Product Safety Laws: In 2006, the 

CPSC included language in the preamble of its mattress flammability rule that would foreclose common law tort claims applied to 

mattress fire safety. The preemption language was not included in 

the draft rule that was released to the public for the notice and 

comment period, giving constituents no opportunity to comment on 

this significant change. In addition, the Commission did not fulfill 

the requirements of Executive Order 13132 (August 4, 1999) that 

mandated consultation with local and State governments before enacting a rule that would substantially impact them, such as extinguishing common law actions in tort as part of a rule regulating 

product safety. The Executive Order states ‘‘National action limiting the policymaking discretion of the States shall be taken only 

where there is constitutional and statutory authority for the action 

and the national activity . . . [and] agencies shall consult with appropriate State and local officials to determine whether Federal objectives can be attained by other means.’’

Many members of the Committee believe that the CPSC went beyond Congressional intent in placing this limitation of State common law actions in the preamble of the rule. The preemption section of the FFA, 15 U.S.C. 1203, uses the narrow term ‘‘standard 

or other regulation’’ in subsections (a), (b) and (c) to encompass the 

action and subject matter to be preempted (15 U.S.C. 1203, emphasis added). 

(a) STANDARDS OR REGULATIONS DESIGNED TO PROTECT

AGAINST SAME RISK AS STATE STANDARDS OR REGULATIONS; 

IDENTICAL STATE STANDARDS.—Except as provided in subsections (b) and (c) of this section, whenever a flammability standard or other regulation for a fabric, related 

material, or product is in effect under this chapter, no 

State or political subdivision of a State may establish or 


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continue in effect a flammability standard or other 

regulation for such fabric, related material, or product if 

the standard or other regulation is designed to protect 

against the same risk of occurrence of fire with respect to 

which the standard or other regulation under this chapter 

is in effect unless the State or political subdivision standard or other regulation is identical to the Federal 

standard or other regulation. 

(b) STATE STANDARDS OR REGULATIONS WHICH AFFORD A

HIGHER DEGREE OF PROTECTION.—The Federal Government 

and the government of any State or political subdivision of 

a State may establish and continue in effect a flammability standard or other regulation applicable to a fabric, related material, or product for its own use which 

standard or other regulation is designed to protect 

against a risk of occurrence of fire with respect to which 

a flammability standard or other regulation is in effect under this chapter and which is not identical to such 

standard or other regulation if the Federal, State, or 

political subdivision standard or other regulation provides a higher degree of protection from such risk of occurrence of fire than the standard or other regulation in 

effect under this chapter. 

(c) EXEMPTION FOR STATE STANDARDS OR REGULATIONS; 

REQUIREMENTS; DETERMINATION OF BURDEN ON INTERSTATE

COMMERCE; NOTICE AND HEARING.—(1) Upon application of 

a State or political subdivision of a State, the Commission 

may, by regulation promulgated in accordance with paragraph (2), exempt from subsection (a) of this section, under 

such conditions as may be prescribed in such regulation, 

any flammability standard or other regulation of such 

State or political subdivision applicable to a fabric, related 

material, or product subject to a standard or other regulation in effect under this chapter, if—

(A) compliance with the State or political subdivision requirement would not cause the fabric, related material, or 

product to be in violation of the standard or other regulation in effect under this chapter, and 

(B) the State or political subdivision standard or other 

regulation (i) provides a significantly higher degree of protection from the risk of occurrence of fire with respect to 

which the Federal standard or other regulation is in effect, and (ii) does not unduly burden interstate commerce. 

In determining the burden, if any, of a State or political 

subdivision flammability standard or other regulation 

on interstate commerce the Commission shall consider and 

make appropriate (as determined by the Commission in its 

discretion) findings on the technological and economic feasibility of complying with such flammability standard or 

other regulation, the cost of complying with such flammability standard or other regulation, the geographic 

distribution of the fabric, related material, or product to 

which the flammability standard or other regulation 

would apply, the probability of other States or political 

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section for a similar flammability standard or other 

regulation, and the need for a national, uniform flammability standard or other regulation under this chapter 

for such fabric, related material, or product. 

(2) A regulation under paragraph (1) granting an exemption for a flammability standard or other regulation 

of a State or political subdivision of a State may be promulgated by the Commission only after it has provided, in 

accordance with section 553(b) of title 5, notice with respect to the promulgation of the regulation and has provided opportunity for the oral presentation of views respecting its promulgation. 

The preamble, if read in context with all the subsections, would 

require different interpretations of ‘‘standard or other regulation’’ between (a) and (c). While (a) sets forth the foundation of the agency’s ability to preempt a State flammability standard or regulation, 

(c) allows States to apply to the Commission to exempt flammability standards or regulations from being preempted. Therefore, if 

one accepts the CPSC’s interpretation, then a State court in the 

midst of a ruling between independent parties for economic and 

noneconomic damages regarding a mattress flammability matter 

would have to apply to the CPSC for an exception to allow the 

court to use its own common law. 

The preamble language extinguishing common law cases in this 

area of consumer product safety runs counter to the role of State 

courts and the most basic notions of Federalism and judicial economy. If the Congress wished to extinguish common law private 

rights of action for consumer products covered by a specific Federal 

product safety standard, it would have explicitly stated such a notion as it has in several other areas of law. 

Recall Effectiveness: In September 2007, approximately 1.3 

million toys were recalled for violating lead paint standards; 1 million cribs were recalled for design flaws; and 425,000 infant play 

yards were recalled for posing strangulation and suffocation hazards. In August 2007, almost 9 million toys were recalled for containing magnets that may come loose and create an ingestion hazard and thousands of pieces of children’s jewelry were recalled for 

high lead content. While recalls for children’s products have dominated press reports in recent months, candles, all-terrain vehicles, 

bunk beds, space heaters, clothes, knives, scuba masks, radios, 

lamps, and electronic equipment were also recalled. Some commentators have pointed to the number of recalls as a sign of success of the product safety system. Many of these recalls, however, 

were prompted by attention in the press as opposed to investigations by the CPSC. In particular, three circumstances in recent 

press reports that called for substantial reform of the CPSC and 

the recall system. 

Simplicity Cribs. On September 21, 2007, the Commission announced a voluntary recall with Simplicity, Inc. of Reading, Pennsylvania, of roughly 1 million baby cribs. The Commission reported 

two infant deaths, seven infant entrapments, and 55 other incidents involving design flaw and hardware failure that permitted 

incorrect installation by consumers of one part of the crib. A droprail side in some crib models detached from the frame and created 

a small space that could entrap infants. The cribs were manufacVerDate Aug 31 2005 06:38 Feb 28, 2008 Jkt 069010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

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1 Maurice Possley, Deaths Spur Huge Crib Recall, Chicago Tribune, September 22, 2007 at 

Zone C-Pg. 1 [hereinafter Possley]. 2 Annys Shin, Stuck in Neutral: Consumer Safety panel Faces Constraints In Its Ability to 

Force Recalls of ATVs, Washington Post, Oct. 27, 2007 at D1. 3 Id. 4 Eric Lipton, Dangerous Sealer Stayed on Shelves After Recall, New York Times, October. 8, 

2007. Available at www.NYT.com. 

tured in China, marketed under the Simplicity and Graco brand 

names, and sold for $100 to $300 from January 1998 through May 

2007 by department stores and mass merchandisers worldwide. 

The voluntary recall directed consumers to contact Simplicity for a 

free repair. One month later, the CPSC announced that repair kits 

were ready to be sent to parents with the recalled cribs. The crib 

recall announced by the Commission on September 21 was the 

fourth Federal recall since May 2005 for Simplicity. In press reports, consumer safety groups voiced apprehension about the dangerous cribs, emphasizing that no margin of error exists when dealing with infant products of this nature. Critics have pointed to the 

Commission’s delayed response time: a California attorney has said 

that he alerted the Commission about the death, caused by a faulty 

crib, of a 9-month old two years before the agency announced the 

crib recall. 1

Kazuma Meerkat 50: In June 2007, the CPSC issued a warning 

about an all-terrain vehicle (ATV) imported from China called the 

Kazuma Meerkat 50. The Commission noted in its press release 

that ‘‘Children are at risk of injury or death to multiple safety defects with this off-road vehicle.’’ The Commission could not undertake a mandatory recall because it did not have a quorum and 

could not undertake any official business. Jason Tsai, President of 

the company that imports the Meerkat refused to voluntarily recall 

the ATV, and he told the Washington Post in an October 2007 article that he would never agree to a recall, because agreeing to a voluntary recall ‘‘means I agree with CPSC’s [accusation] that the 

Meerkat 50 is a severe hazardous product. 2 The article also highlighted that the CPSC is limited in information it can disclose 

about a product because of protections provided under section 6(b) 

of the CPSA. 3 So in a situation such as the Meerkat impasse, the 

importer can force the CPSC into court over a disclosure that 

would help the consuming public help themselves. Despite the 

CPSC warning and the temporary quorum extension granted in the 

9/11 Act, the CPSC has not initiated mandatory recall proceedings. 

Stand ’n Seal: The Stand ’n Seal case is a powerful illustration 

of the Commission’s inability to protect consumers from harmful 

products. There have been at least 88 complaints from consumers 

who have used Stand ’n Seal, including two deaths and 28 cases 

of overexposure resulting in respiratory symptoms for which medical attention were sought. 

Stand ’n Seal, distributed by Roanoke Companies Group Inc. (Roanoke), is a canned aerosol sealant used to waterproof kitchen and 

bathroom floors. The product entered the market in late 2003 for 

sale exclusively at Home Depot stores. In the spring of 2005, one 

of Roanoke’s suppliers switched an ingredient in Stand ’n Seal. 

Shortly after the reformulated cans reached Home Depot shelves, 

calls from customers, emergency rooms, and doctors poured into 

poison control centers and the CPSC’s own hot line. 4


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9 

5 Id. 6 Id. 7 Id. 

After weeks of consumer complaints, in mid-June 2005, Roanoke 

reported a possible health hazard from the Stand ’n Seal product 

to the CPSC. Then, for over two months, the CPSC and Roanoke 

negotiated a recall. During this negotiation period, the public was 

not alerted to the product hazard and the product remained on 

Home Depot’s shelves. Also during this period, Mr. Tripodi, an executive for Roanoke, sent an e-mail message to a business associate 

saying, ‘‘We are doing everything to convince the Home Depot that 

there is no reason to take these batches off the shelf.’’ On August 

31, 2005, the CPSC announced a voluntary recall of the Stand ’n 

Seal product. From mid-June 2005, when Roanoke reported to the 

Commission, to August 31, 2005, when the CPSC issued a voluntary recall, Stand ’n Seal sickened dozens of people, two of them 

fatally. 5

After the recall, Roanoke re-supplied Home Depot stores nationwide with 50,000 new cans of Stand ’n Seal and assured the Commission that it had fixed the problem. Since the CPSC’s recall notice only applied to cans sold at Home Depot stores between April 

2005 and June 2005, consumers were left to believe that the new 

Stand ’n Seal cans were safe for use. However, the new cans still 

contained the unsafe chemical implicated in earlier illnesses. Andrew Lamer, a 24-year-old home contractor, ended up in a hospital 

intensive care unit after using a can of Stand ’n Seal he bought in 

November 2005, four months after the recall. 6

It was not until March 2007, a year and a half after the original 

recall, that Home Depot and Roanoke acknowledged the continuing 

health problem with Stand ’n Seal. A Home Depot statement conceded that the 50,000 cans used to restock the shelves in 2005 

‘‘have been identified as containing the same potentially harmful 

formulation as the recalled batches.’’ Home Depot then removed 

Stand ’n Seal from the market and posted a notice on its corporate 

Web site offering a refund to anyone who, after the recall, had 

bought one of the 50,000 cans. 7

The time it took the Commission to take Stand ’n Seal off Home 

Depot’s shelves has revealed serious deficiencies in the Commission’s ability to carry out its mission to protect consumers from unsafe products. If the CPSC had acted more quickly to issue recalls 

of unsafe products or had alerted the public of the potential dangers, deaths and injuries associated with Stand ’n Seal might have 

been prevented. 

Lead in Children’s Products: Lead is a highly toxic substance 

found in consumer products, contaminated-soil, homes, and work 

environments. Lead poisoning and lead exposure are problematic 

throughout the United States. Indeed, the U.S. Department of 

Housing and Urban Development has estimated that 24 million 

homes still have significant lead-based hazards. Children are especially vulnerable to lead exposure because of their developing nervous systems and brains. In particular, children under the age of six 

absorb greater amounts of lead than adults absorb when both 

groups’ exposure to lead is identical. According to the Centers for 

Disease Control and Prevention (CDC), not only are children at increased risk of exposure to lead because they absorb more lead 


wwoods2 on PRODPC68 with REPORTS
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8 William L. Roper, M.D., M.P.H, Director; Vernon N. Houk, M.D., Henry Falk, M.D., Sue 

Binder, M.D., Preventing Lead Poisoning in Young Children: A Statement by the Centers for Disease Control and Prevention–October 1991. Available online at http://www.cdc.gov/nceh/lead/publications/books/plpyc/chapter2.htm 9 Helen J. Binns, MD, Carla Campbill, MD, Mary Jean Brown, ScD, RN for the Advisory Committee on childhood Lead Poisoning Prevention, Interpreting and Managing blood Lead Levels 

of Less Than 10 μg/dL in children and Reducing Childhood Exposure to Lead: Recommendations 

of the Centers for Disease Control and Prevention Advisory Committee on Childhood Lead Poisoning Prevention, PEDIATRICS Vol. 120, No. 5, November 2007, pp. e1285-e1298 (doi:10.1542/ 

peds.2055-1770). Published online November 1, 2007. 

10 Id. 

than adults but also because they tend to exhibit more hand-tomouth activity than adults. Lead is associated with impaired 

motor, behavioral, cognitive, and physical functioning in children. 

The adverse health effects of lead poisoning in children can take 

many forms: behavior and learning problems like hyperactivity, 

ADHD, ADD, hearing problems, headaches, memory and concentration problems, stunted growth, brain damage and nervous system 

damage. According to a 1991 statement by the CDC: 

Very severe lead exposure in children (blood lead levels 

380 μg/dL) can cause coma, convulsions, and even death. 

Lower levels cause adverse effects on the central nervous 

system, kidney, and hematopoietic system. Blood lead levels as low as 10 μg/dL, which do not cause distinctive 

symptoms, are associated with decreased intelligence and 

impaired neurobehavioral development. 8

In 1991, while the CDC defined 10 micrograms per deciliter (μg/ 

dL) as the blood lead level that should trigger action by public 

health officials, the CDC acknowledged that the 10 μg/dL did not 

represent a threshold for the harmful effects of lead. Since then, no 

safe blood lead level in children has been identified. Based on research conducted since 1991, evidence indicates that blood lead levels of less than 10 μg/dL can affect children’s physical and mental 

development, according to a report written by the CDC’s Advisory 

Committee on Childhood Lead Poisoning Prevention (Advisory 

Committee) and published in the November 2007 issue of the medical journal Pediatrics. The report noted that lead ‘‘has a continuing negative association with IQ as children reach elementary 

school age.’’ 9 The Advisory Committee’s report also enumerated 

nonhousing lead sources of exposure for children, many of which 

fall under the jurisdiction of the CPSC, including pottery and toys. 

The report found that ‘‘because no safe BLL [blood lead level] has 

been defined, small reductions in population-level exposures to lead 

would likely affect substantial numbers of children and could be expected to reduce the number of children with adverse health outcomes associated with lead exposure.’’ 10

Highlighting the toxicity of lead and the detrimental impact of 

lead exposure on children’s cognitive, physical, and behavioral development, the American Academy of Pediatrics reiterated much of 

the CDC’s scientific findings on lead accumulation in children in a 

letter to Acting Chairman Nancy Nord, dated March 7, 2007: 

Lead is well-established as a potent neurotoxin and a 

particular threat to the developing brain of the young 

child, with documented negative effects on behavior and 

permanent loss of IQ points. No threshold for the toxic effects of lead has been identified. When lead accumulates in 


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11

the body, it is tightly bound to bone and then released 

slowly over years or decades. Thus, exposures that may be 

separated by months to years have an additive effect on 

the body’s burden of lead. Acquisition of lead in the body 

even in small amounts (i.e., amounts that result in blood 

lead levels <10 μg/dL) contribute to an accumulation of 

lead and produce the negative effects of lead on children’s 

health and development that last a lifetime . . . Studies on 

lead accumulation at lower levels report a loss of 4 to 7 IQ 

points for lead levels that move from 1 μg/dL to 10 μg/ 

dL. 11

Increasing children’s risk of lead exposure are the millions of 

toys recently recalled for containing hazardous levels of lead. Posted on the Commission’s website are many recalls involving lead in 

children’s jewelry; notable examples include: a July 8, 2004, recall 

of one hundred fifty million pieces of toy jewelry for containing 

dangerous levels of lead by four companies, A & A Global Industries, Brand Imports, LLC, Cardinal Distributing Company, and L. 

M. Becker & Company; and a September 26, 2007, recall by Toby 

N.Y.C. of 23,500 Toby and Me Jewelry Sets that contained high 

levels of lead. In 2006, a four-year old child died in Minnesota after 

swallowing a piece of a Reebok charm bracelet found to be almost 

entirely composed of lead. In 2004 in Oregon, a child ingested a 

necklace of high lead content, after which her blood lead level was 

recorded as 123 μg/dL. 

Not only has lead in children’s metal jewelry been prevalent in 

recent recalls, but products have also been recalled for containing 

dangerous levels of lead paint. Currently, Federal law bans the use 

of lead in paint above 600 parts per million. Despite the U.S. Federal standard, Mattel revealed to the House of Representatives 

Subcommittee on Commerce, Trade and Consumer Protection on 

September 19, 2007, the range of lead levels, in violation of Federal 

standards, in its recalled products: ‘‘The reported noncompliant 

lead levels found in paint on some samples of recalled toys, so far, 

has typically been about one (1) percent or 10,000 parts per million. 

The reported noncompliant lead levels in paint, so far, range from 

just over the applicable standard to about eleven (11) percent or 

110,000 parts per million.’’

Current science has highlighted the greater danger, especially to 

children, from lead exposure. Standards need to be updated to reflect this new information and improved testing abilities. 

SUMMARY OF PROVISIONS

CPSC Resources: To address CPSC’s lack of resources described above, S. 2045 (the ‘‘Reform Act’’ or the ‘‘Act’’) would provide an authorization of $759 million over seven years, which is a 

74 percent increase over current funding levels. The Reform Act 

also would provide $40 million in funding authority to renovate 

and improve the CPSC laboratory facilities, an additional $1 million to support research into the safety of nanotechnology in consumer products, and $15 million in funding over the next seven 

years for the Commission’s Office of the Inspector General. 


wwoods2 on PRODPC68 with REPORTS
12 

Commission Administration and Rulemaking: The Reform 

Act would address current statutory authority and operations of 

the CPSC. The most significant provisions include: 

Quorum. Originally, the CPSC was to be composed of up to five 

Commissioners, not more than three of whom could be members of 

the same political party. In 1992, Congress restricted funds for two 

Commissioners and their staffs for FY 1993 and thereafter. Since 

that time, the CPSC has functioned as a three-member commission, with a temporary quorum rule to allow the CPSC to function 

with two Commissioners for up to 6 months. Without a quorum, 

the Commission cannot conduct any business requiring a vote, including rulemakings or civil penalties, or hold public hearings. 

After the expiration of the temporary quorum in January 2007, the 

CPSC operated without a quorum until the signing of the 9/11 Act 

on August 3, 2007, which included a six month extension of the 

temporary quorum rule, allowing the CPSC to operate fully until 

February 3, 2008. The Act would extend the temporary quorum 

rule for nine months after the date of enactment. Also, the Act 

would repeal the limit on the use of appropriated funds for more 

than three Commissioners and urge the President to nominate 

members to fill all five Commissioner positions. 

Personnel. The Reform Act would require the CPSC to increase 

the number of its FTEs to at least 500 from its current level of approximately 400 by October 1, 2013, and would assign an additional 50 FTEs to ports of entry or overseas inspection duty by October 1, 2010. In addition, to help assure only the most qualified 

individuals obtain civil service positions within the CPSC and to 

limit political influence in the professional permanent staff of the 

Commission, the bill would prohibit the appointment of an active 

political employee to a civil service position within the Commission, 

unless the appointment is authorized by a unanimous vote of the 

Commission or more than one year has elapsed since his or her termination from the CPSC political appointment. The bill also would 

prohibit the reduction of staff in the office of a Commissioner, unless the reduction is authorized by a unanimous vote of the Commission. 

Rulemaking. Currently the CPSC is required to undertake a 

three-step rulemaking process (Announced Notice of Proposed Rulemaking (ANPR), Notice of Proposed Rulemaking (NPR), and the 

Issuance of the Final Rule). By mandating a two-step rulemaking 

(NPR and Issuance of Final Rule), while allowing the CPSC to use 

its three-step process when the Commission deems appropriate, the 

Reform Act would streamline the process. 

Preemption. In 2006, the CPSC included language in the preamble of its mattress flammability rule that would foreclose common law tort claims applied to mattress fire safety. The preemption 

language included in the rule was not authorized by Congress and 

was not included in the draft rule that was released to the public 

for the notice and comment period, giving constituents no opportunity to comment on this significant change. S. 2045 would clarify 

that no consumer product safety standard promulgated by the 

Commission after the date of enactment of the Reform Act, or any 

other action taken by the Commission after that date, would preempt any State or local law to an extent greater than currently 

permitted under the preemption sections of the CPSA, the FHSA, 


wwoods2 on PRODPC68 with REPORTS
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the FFA, or the PPA. The section would further clarify that the 

Standard for the Flammability of Mattress Sets promulgated by 

the CPSC would not limit a State’s or a political division of a 

State’s rights to common law actions in tort and to establish standards consistent with section 16(b) and (c) of the FFA, or the other 

preemption sections within the CPSA, the FHSA, and the PPA. 

Recall Effectiveness: S. 2045 contains five major amendments 

to the current recall system under the CPSA. 

Corrective Action Plans. Currently, companies can elect the remedy they wish to use in the recall of a defective product ‘‘ a repair, 

replacement, or refund’’ even though Commission staff may view 

the recall method as inadequate or lacking in effectiveness. S. 2045 

would provide the Commission the authority to approve the corrective action plan it determines to be in the public interest, instead 

of allowing the manufacturer to select the corrective action plan it 

believes appropriate. Further empowering the Commission, if the 

agency finds that an approved corrective action plan is not effective, or that the manufacturer, retailer, or distributor is not executing an approved action plan effectively, S. 2045 would enable 

the Commission to order the action plan to be amended, if the 

Commission finds an approved corrective action plan not effective 

or that the manufacturer, retailer, or distributor is not effectively 

executing a corrective action plan. If the Commission determines, 

after notice and the opportunity for comment, that a manufacturer, 

retailer, or distributor has failed to comply substantially with its 

obligations under its action plan, the Commission would have the 

authority to revoke approval of the action plan and require the 

manufacturer, retailer, or distributor to cease distribution of the 

product. 

Tracking Labels for Children’s Products. Currently, no mandatory Federal regime exists for identifying/tracking marks to be 

placed on children’s products. Because of the necessity to identify 

and remove these products from the stream of commerce as soon 

as possible after the notice of a voluntary or mandatory recall, S. 

2045 would require manufacturers of children’s products to place 

distinguishing marks on the product and its packaging to the extent practicable, enabling the purchaser to ascertain the source, 

date, and cohort (including the batch, run number, or other identifying characteristic) of the product by reference to those marks. S. 

2045 would also authorize the Commission to extend the tracking 

requirement to other products through a rulemaking proceeding. 

Identification of Manufacturers by Importers and Retailers. The 

CPSA contains no provision that explicitly requires manufacturers, 

retailers, or importers to maintain and provide records to the Commission of product distribution or sale to related entities. This lack 

of communication and transparency delays product recall notification to relevant actors. To address this, S. 2045 would require that 

every importer, retailer, or distributor of any product or substance 

under the Commission’s jurisdiction to identify the manufacturer of 

that product by name, address, or such other identifying information as the Commission may request. In addition, each manufacturer would be required to identify the retailer, or distributor to 

which it supplied a given consumer product and each subcontractor 

involved in the production or component supply of a product by 


wwoods2 on PRODPC68 with REPORTS
14 

name, address, or such other identifying information upon the request of the Commission. 

Bonding for Recalls or Destruction of Products. In certain situations a manufacturer, importer or retailer may not have the resources to execute an effective recall to remove a dangerous product from the stream of commerce. To address this potentiality, the 

Reform Act would give the Commission the authority, by rule, require manufacturers or distributors of a consumer product to post 

a bond (or other security acceptable to the Commission) in an 

amount sufficient to cover the costs of an effective recall of the 

product or substance, and in the case of an imported product or 

substance, to cover the costs of holding the product or substance at 

the port and destruction of the product or substance should such 

action be required. Prohibition of Sale of Recalled Products. Currently, the CPSA prohibits individuals from manufacturing, selling, 

distributing, or importing either a consumer product in noncompliance with an applicable safety standard under the CPSA or a declared banned hazardous substance under the FHSA. S. 2045 

would add additional protections pertaining to the sale of a voluntarily recalled product and expand prohibitions on the sale of recalled consumer products under any other Act enforced by the 

Commission. All persons would be prohibited from selling, manufacturing, distributing or importing into the United States any consumer product that is subject to a voluntary corrective action taken 

by the manufacturer of which the CPSC has notified the public. As 

a result of this addition, it would be unlawful for individuals to sell 

a product that the individual knew or should have known was voluntarily or mandatorily recalled after a public announcement made 

by the Commission of the recall. 

Industry Reporting and Public Disclosure: The CPSC and 

several outside constituencies have made a number of suggestions 

to improve the reporting system and to provide more information 

to consumers about unsafe or potentially unsafe products. After reviewing the submissions, the Committee formulated a comprehensive approach to reporting reform. The most significant of these 

provisions include: 

Company Reporting of Defective Products and Statutory Violations. Under section 15(b) of the CPSA, companies are required to 

immediately inform the CPSC of information which reasonably 

supports the conclusion that a consumer product: (1) fails to comply 

with a product safety rule; (2) contains a defect that could create 

a substantial product hazard; or (3) creates an unreasonable risk 

of serious injury or death. This obligation, however, does not extend to substances and products covered by statutes other than the 

CPSA that the Commission enforces, such as the FHSA. Consistent 

with the requests of both CPSC Commissioners, S. 2045 would extend the section 15(b) reporting requirements to all statutes that 

the CPSC enforces. 

Whistleblower Protections. S. 2045 would establish whistleblower 

protections for private and governmental employees who: (1) provided or are about to provide to an employer, the Federal government, or a State attorney general information relating to any violation or alleged violation of any order, regulation, or consumer product safety standard under any law enforceable by the Commission; 

(2) testified or are about to testify about such matters; (3) assisted 


wwoods2 on PRODPC68 with REPORTS
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12Possley at Zone C-Pg. 1. 

or participated or is about to assist or participate in the investigation of such matters; or (4) objected to, or refused to participate in, 

an act reasonably believed to be in violation of law or a substantial 

danger to public health or safety. The bill would set out procedures 

under which an employee may file a complaint with the Department of Labor (DOL) against an employer alleging unlawful employment action and provide the employer the opportunity to respond and defend itself. If the DOL determines that a complainant 

was aggrieved as a result of being a whistleblower, the DOL would 

be authorized to order the employer to provide compensation (including back pay); restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory 

and consequential damages, reasonable litigation costs, and punitive damages up to $250,000. 

S. 2045 would encourage employees to report product safety violations to the CPSC or State attorneys general by granting an employee 15 to 25 percent of any civil penalty collected with respect 

to a reported violation. If the CPSC or a State attorney general 

proceeds with an action based on information provided by a nongovernmental employee, the employee would be eligible to receive 

between 15 and 25 percent, as determined by the Commission, of 

a civil penalty collected depending upon the extent to which the information provided by the employee substantially contributed to 

the enforcement action. If the Commission’s action is based primarily on disclosures of specific information not directly provided 

by the employee, the Commission would be authorized to award up 

to 10 percent of a civil penalty collected as it considers appropriate 

based on the role of the employee. An employee would not be entitled to a reward if he or she caused the violation without the 

knowledge and direction of his employer. Additionally, an employee 

who brings a frivolous lawsuit would be subject to a $1,000 penalty. 

Public Disclosure of Information. The Chicago Tribune recently 

reported that the September 2007 recall of 1 million cribs only occurred after the newspaper began raising questions. This was despite two deaths and 55 complaints received by the CPSC regarding the cribs, beginning in April 2005. A CPSC investigator was 

quoted as saying ‘‘[w]e get so many cases. Once I do a report, I 

send it in and that’s it. I go to the next case. We could spend more 

time, but we are under the gun. We have to move on.’’ 12

The CPSC, unlike other safety agencies, is restrained from disseminating to the public product and manufacturer specific information under the CPSA. Under section 6(b) of the CPSA, the Commission cannot disclose complaint information with respect to a 

product, unless it is an imminent hazard or in violation of the 

CPSA. Other manufacturer specific information is barred from release unless and until the agency has sent a copy of it to the 

named manufacturer, allowed the manufacturer 30 days to comment on the information, reviewed the manufacturer’s comments 

regarding the accuracy of the information and the fairness of releasing it, and determined that disclosure of the information would 

effectuate the purposes of the CPSA. If a manufacturer believes 

that the CPSC has not complied with the required procedure, it 


wwoods2 on PRODPC68 with REPORTS
16 

may seek to enjoin the disclosure of information through court action. 

Manufacturers believe that section 6(b) restrictions are important because information that may be released by the CPSC may 

be inaccurate and that it should be incumbent upon the CPSC to 

ensure that only accurate information be released. Misinformation 

could hurt the reputation of manufacturers and products. In addition, manufacturers argue that the general release of information 

will lead to unsupported lawsuits and discourage the voluntary reporting of information. 

The dictates of section 6(b), however, are resource intensive for 

the 

already overburdened agency, especially when a company chooses 

to fight the release of information. As a result, releases by the 

CPSC and responses to Freedom of Information Act requests have 

been delayed and product safety information has not reached the 

public. In contrast, the National Highway Traffic Safety 

Administration (NHTSA) has no similar constraints and 

routinely posts car safety information, including consumer 

complaints, on its website by make and model. The information 

is not reviewed for accuracy by NHTSA and can be used by 

consumers in evaluating the safety of infant car seats and cars 

they might purchase. 

S. 2045 would eliminate the current section 6(b) of the CPSA. In 

its place, the Commission, to the extent practicable, would be required to provide the manufacturer or private labeler of a consumer product up to 15 days to review relevant information for 

confidentiality prior to disclosure. At the end of this period, in addition to marking proprietary information confidential, the manufacturer would have the opportunity to file comments with the CPSC 

as to the veracity of the information to be released. The Commission would be required to disclose the comments of a manufacturer 

as an addendum at the company’s request. 

Inter-Governmental Sharing of Product Safety Information. 

Goods made overseas are sold not only in the United States but 

also in Europe, Africa, and other continents. To the extent that the 

European Union bans an unsafe product and the United States 

does not, shipments to Europe may well be diverted to American 

shores. Once in the United States, the products may move from 

State to State. 

In recognition of this global market, the Committee seeks to empower the CPSC to share information with any other Federal, 

State, local, or foreign governments, so long as those entities have 

established the ability to protect such information from premature 

public disclosure and agree to protect such information. The European Union has voiced an interest in establishing an information 

sharing relationship with the CPSC but has not been able to do so 

under the CPSC’s current statutory authority. 

Based on language in the U.S. SAFE WEB Act of 2006 (P.L. 109–

455), which authorized and established procedures under which the 

Federal Trade Commission may share information with foreign law 

enforcement agencies, S. 2045 would authorize the CPSC to share 

information with Federal, State, local, and foreign agencies. Prior 

to the disclosure of such information, however, the receiving entity 

must certify through prior agreement or memorandum of underVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00018 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
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standing that the material will only be used for official law enforcement or consumer protection purposes and the agency has set forth 

a bona fide legal basis for its authority to maintain the material 

in confidence. S. 2045 also would require the CPSC to maintain the 

confidentiality of information it receives from foreign governments. 

CPSC Import Enforcement Improvements: S. 2045 would 

provide additional authority to aid in the prosecution of importers 

that violate the acts enforced by the Commission. S. 2045 would 

improve the Commission’s import enforcement regime by the following statutory changes: 

Third Party Certification of Children’s Products. Consumers are 

wary that products are not made to the same safety standards outside of the United States and are surprised to find out that many 

of the large American toy and children’s product companies actually have large manufacturing facilities abroad. S. 2045 would address this growing lack of confidence in the safety of children’s 

products by creating a third party certification regime. Every manufacturer of a children’s product subject to CPSC jurisdiction would 

be required to use third party laboratories to test their products to 

certify that their product conforms to CPSC safety standards, if applicable. S. 2045 would require that the CPSC establish protocols 

and standards for credentialing independent third party laboratories or delegate that authority to an independent standard setting organization to carry out those duties. The CPSC or its designee would verify that products tested by such parties comply with 

safety standards. The Commission may certify a company-owned 

laboratory so long as it meets or exceeds the standards of a third 

party laboratory and it is protected from undue influence from the 

company’s other business units. All children’s products, and any 

other product the Commission deems necessary, would be subject 

to oversight by an independent third party laboratory and would be 

required to carry a label to inform consumers that the product 

meets U.S. safety standards. S. 2045 also would prohibit the importation of children’s products that are not accompanied by certification from an independent third party laboratory. 

Repeated Importation Offenses. S. 2045 would create an ‘‘aiding 

and abetting’’ violation for customs brokers that repeatedly assist 

an importer with violative products in evading detection. The Commission would have the authority to share this information with 

CPB with a recommendation that the offender’s custom broker’s license be revoked. Those so referred would have their licenses revoked by Customs and Border Protection. 

Export of Recalled Products. S. 2045 would authorize the Commission to prohibit the exporting of products that the Commission 

determines are not in conformity with applicable product safety 

standards, subject to an order for a banned hazardous substance, 

or subject to a voluntary corrective action that would have been 

subject to a mandatory corrective action by the CPSC. The Commission could permit the export of a product that would be subject 

to this section if that product meets the applicable safety standards 

of the importing country. 

Civil and Criminal Penalties: The Reform Act would modify 

the current authority in the following ways: 

Civil Penalties. S. 2045 would increase the civil penalty cap for 

each violation of a prohibited act under the CPSA, the FHSA, or 


wwoods2 on PRODPC68 with REPORTS
18 

the FFA from $8,000 to $250,000. The maximum civil penalty cap 

for a related series of violations under each act would increase from 

$1,825,000 to $100,000,000. S. 2045 would provide strong civil penalty authority for the Commission, creating an incentive for companies to comply with the CPSC enforced statutes. 

The Committee believes that this increase in penalty authority 

should be accompanied by a clear delineation of the factors the 

Commission will use in determining the size of the civil fine it may 

seek in a given situation. S. 2045 would direct the Commission, 

within a year of enactment, to initiate a rulemaking to establish 

criteria for the imposition of civil penalties. In the rulemaking, the 

Commission would evaluate the impact of repeat violations, the 

precedential value of prior adjudicated penalties, the nature of the 

product defect, the severity of the risk of injury, the occurrence or 

absence of injury, the number of defective products distributed, the 

appropriateness of such penalty in relation to the size of the business the person charged, and other circumstances. 

Criminal Penalties. Currently, the CPSA provides criminal penalties of not more than one year for any person who knowingly and 

willfully violates the CPSA after having received notice of noncompliance from the Commission. Individual directors, officers, or 

agents of a corporation who knowingly and willfully authorize, 

order or perform an action in violation of the CPSA and who have 

knowledge of notice of noncompliance received from the Commission also may face criminal penalties of not more than one year. 

The ‘‘notice of noncompliance’’ requirement poses a substantial 

hurdle that makes the CPSC’s current criminal penalty authority 

virtually unusable. The notice provision means that a bad actor 

may intentionally violate the CPSA without fear of criminal prosecution. Only after the CPSC finds the company and provides notice of noncompliance would the company be at risk of criminal 

sanction and then only if it continued violating the CPSA. 

In addition, the ‘‘knowing and willful’’ requirement means that 

the Commission must demonstrate in any criminal prosecution that 

a company both had knowledge of the facts that constitute the violation of the CPSA (knowing) and acted with the knowledge that 

its conduct was unlawful (willful). 

The FHSA also contains criminal penalty provisions. Under the 

FHSA, any person who violates any provision of the FHSA, regardless of his or her mens rea (strict liability), faces a maximum of 90 

days in prison. If the CPSC proves that the individual violated the 

FHSA ‘‘with intent to defraud or mislead,’’ or for a second offense, 

he faces not more than one year in jail. While the language of the 

FHSA is modeled on the criminal provisions of the Federal Food, 

Drug, and Cosmetic Act (FDCA), the penalties in the FDCA are 

stricter. Under the FDCA, an individual faces up to one year imprisonment for strict liability violations and up to three years imprisonment for violations with the intent to defraud or mislead. 

S. 2045 would strike ‘‘notice of noncompliance’’ requirement in 

the CPSA, which would allow the Commission to seek criminal 

penalties against the most egregious violators when they are first 

identified. In addition, the bill would harmonize the criminal provisions of the CPSA, the FHSA and the FFA. S. 2045 would make 

a knowing violation of either statute punishable by imprisonment 

for not more than one year. A knowing and willful violation of the 


wwoods2 on PRODPC68 with REPORTS
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CPSA, the FHSA or the FFA would be punishable by imprisonment 

for not more than five years. In addition, S. 2045 would give the 

Commission authority to seek asset forfeiture as a criminal penalty. 

Attorney General Enforcement. As has been recognized by consumer groups and industry, the CPSC is underfunded and lacks resources to aggressively pursue many aspects of its mission. This includes the CPSC’s investigative and enforcement capabilities. Consistent with other bills passed out of the Commerce Committee 

such as the CANSPAM Act of 2003 and the Identity Theft Prevention Act of 2007, S. 2045 would authorize a State to bring a civil 

action on behalf of its residents to enforce the provisions of the 

Acts enforced by the CPSC. By empowering State attorneys general 

to act, the CPSC will be buttressed by the resources of State attorney general offices. 

To encourage uniformity, States would be required to serve written notice to the Commission of any civil action at least 60 days 

prior to initiating such civil action, if feasible. Upon receiving the 

notice, the Commission would be authorized to intervene in the 

civil action, be heard on all matters in the case, and file petitions 

for appeal of a decision. If the Commission has instituted a civil action or an administrative action, no State attorney general would 

be authorized to bring an action during the pendency of the Commission action. If the attorney general of the State prevails in any 

civil action, it is authorized to seek remedies delineated under the 

CPSA and other Acts enforced by the Commission as well. 

Lead and Consumer Products: S. 2045 contains new authority 

that would ban lead in children’s products other than trace 

amounts. Within 180 days after the date of enactment, any children’s product containing lead would be treated as a banned hazardous substance under the FHSA, and the prohibition would apply 

without regard to whether the lead contained in such children’s 

product is accessible to children. 

The Committee recognizes that eliminating lead completely is 

nearly impossible and so permits trace amounts of lead to remain 

in products. S. 2045 defines trace amounts of lead as follows: a children’s product will be considered to contain lead if, in the case of 

a children’s product that is jewelry, any part of the product contains lead or lead compounds and the lead content of such part is 

greater than 0.02 percent by weight of the total weight of such 

part. 

The agency would consider a children’s product to contain lead 

if, in non-jewelry children’s products, any part of the product contains lead or lead compounds and the lead content of such part is 

greater than 0.04 percent by weight of the total weight of such 

part. 

If the Commission determines that it is not feasible for certain 

electronic devices, including batteries, to comply with the prohibition, the Commission would be authorized to issue standards to reduce the exposure of, and accessibility to, lead in such electronic 

devices, and to establish a schedule by which such electronic devices shall be in full compliance with the regulations. 

S. 2045 also would grant the Commission greater rulemaking authority to aggressively reduce lead in children’s products. Upon enactment, the Commission would be required to commence a ruleVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
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making as to whether lower thresholds should be prescribed for 

children’s products. If the Commission decides that lower thresholds are appropriate, it would promulgate regulations establishing 

lower thresholds. 

Finally, the bill would direct the Commission to reduce the permissible lead level permitted in consumer use paint from 0.06 percent to 0.009 percent. 

Ongoing Product Rule Amendments and Guidance: S. 2045 

would address certain specific product safety standards. These include: 

Cost-Benefit Analysis Under the PPPA. As part of its Program 

Assessment Rating Tool process, the Office of Management and 

Budget is advocating that the CPSC use a cost/benefit analysis in 

the CPSC’s PPPA rulemakings. This runs counter to the legislative 

intent of Congress which specifically did not include a cost/benefit 

analysis in the PPPA, as it did for many of the other statutes administered by the CPSC. A cost/benefit analysis under the PPPA 

would force the Commission to weigh the risk of poisoning children 

against the cost of preventing it. S. 2045 would clarify the PPPA 

by preventing all PPPA standards from requiring a comparison of 

the costs versus benefits. 

Toy Safety Standard. The Reform Act would address the lack of 

a Federal toy safety standard. As of 60 days after the date of enactment, the ASTM-International standard, Consumer Safety Specifications for Toy Safety (F963–07), will be considered a mandatory 

consumer product safety rule issued under the CPSA. Updates to 

the standard by ASTM-International will be incorporated into the 

Federal mandatory toy safety standard unless the CPSC determines that the revision does not improve toy safety. If the CPSC 

makes that determination, the prior version of the F963–07 standard will continue as the mandatory consumer product safety rule 

without regard to the proposed revision. 

All-Terrain Vehicle Safety Standard. S. 2045 would require the 

CPSC to publish in the Federal Register as a mandatory consumer 

product safety standard the American National Standard for Four 

Wheel All-Terrain Vehicles Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of 

America. The standard would take effect 150 days after it is published. If the All-Terrain Vehicle (ATV) safety standard is revised, 

the Commission would be required to conduct a rulemaking to 

amend the product safety standard for ATVs to include any such 

provision that the Commission determines is reasonably related to 

the safe performance of all-terrain vehicles. The Commission also 

would have the authority to include any additional provisions that 

the Commission determines is reasonably necessary to reduce an 

unreasonable risk of injury associated with all-terrain vehicles. 

After the standard takes effect, it would be unlawful for any 

manufacturer or distributor to import into or distribute in commerce any new assembled or unassembled all-terrain vehicle unless 

the vehicle complies with each applicable provision of the standard 

or is subject to or complying with certain other ATV action plans 

filed with the Commission. Failure to comply with the ATV standard would be deemed a failure to comply with a consumer product 

safety rule and would be subject to all of the penalties and remedies available under the CPSA. 


wwoods2 on PRODPC68 with REPORTS
21 

The section also creates a ban on 3-wheeled all-terrain vehicles. 

It clarifies that until a mandatory consumer product safety rule applicable to 3-wheeled all-terrain vehicles is in effect, it would be unlawful to import or distribute into commerce new 3-wheeled ATVs 

in the United States. 

Finally, the section requires that the Commission issue a final 

rule in its proceeding entitled Standards for all-terrain vehicles 

and ban of three-wheeled all-terrain vehicles. In the final rule, the 

Commission would provide for a multiple factor method of categorization that, at a minimum, would incorporate weight, the 

maximum speed of the vehicle, velocity, age and height of child riders into its analysis. 

LEGISLATIVE HISTORY

On September 12, 2007, Senator Mark Pryor introduced S. 2045, 

which was referred to the Committee on Commerce, Science and 

Transportation. Chairman Inouye and Senators Klobuchar, Nelson 

(FL), Durbin, Schumer, Brown, Casey, and Menendez cosponsored 

the measure. The Commerce Committee held a legislative hearing 

on S. 2045 on October 4, 2007. At this hearing, the Committee explored the state of the CPSC, examined reforms that are necessary 

to make the agency more effective to protect children and other 

consumers from dangerous and defective products, and sought comments on the proposed bill. CPSC Acting Chairman Nancy Nord, 

Commissioner Thomas Moore, and representatives from the consumer, manufacturer, and retailer associations testified at the 

hearing. 

On October 30, 2007, the Committee met in open executive session to consider an amendment in the nature of a substitute offered 

by Senator Pryor and Chairman Inouye that made several substantive changes to the bill as introduced. In addition to that substitute, Senator Pryor and Chairman Inouye offered a package of 

technical amendments to clarify and correct portions of the substitute. Senator Kerry offered an amendment for the CPSC to 

study the feasibility of establishing a ‘‘units-of-mass-per-areastandard’’ for measuring lead content in consumer products. Senator Dorgan offered an amendment to assess disparities in the 

risks and incidence of preventable injuries and deaths among children of minority populations. Senator Boxer offered two amendments. The first would amend the FHSA to require the inclusion 

of warning labels on Internet and catalog advertising of certain 

toys and games. The second amendment would require manufacturers of durable infant and toddler products to provide consumer 

product registration cards to facilitate recalls of those products. 

Senator Nelson offered three amendments. The first amendment 

would mandate issuance of the portable generator safety rule to reduce deaths and injuries from carbon monoxide poisoning. The second amendment would mandate the CPSC issue a final rule on cigarette lighter safety. The third amendment would establish the 

ASTM-International standard for toy safety as a mandatory consumer product safety rule. Senator Pryor offered an amendment to 

ensure that the consumer product safety standard for garage door 

openers retain an optical or edge sensor requirement. Senator 

McCaskill offered three amendments. The first amendment would 

establish a consumer product safety rule that would require childVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

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resistant closures on all portable gasoline containers. The second 

amendment would authorize increased funding for the CPSC Inspector General. The third amendment would strengthen the whistleblower protections in the substitute amendment. Vice Chairman 

Stevens offered an amendment to establish mandatory safety 

standards for ATVs. The Vice Chairman offered a second degree 

amendment that was modified by Senator Kerry that made substantive and technical corrections to the underlying amendment. 

Senator Snowe offered an amendment to authorize hiring at least 

fifty additional CPSC inspection personnel for duty stations at U.S. 

ports or overseas production facilities. Each of these amendments 

to the Pryor-Inouye substitute, except for Senator McCaskill’s 

amendment strengthening whistleblower protections, was adopted 

en bloc by voice vote. Senator McCaskill’s whistleblower amendment was then adopted by voice vote. The Committee adopted the 

Pryor-Inouye substitute amendment to the underlying measure, as 

amended, and ordered the bill reported by voice vote. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 2045—CPSC Reform Act of 2007 

Summary: S. 2045 would authorize the appropriation of funds to 

the Consumer Product Safety Commission (CPSC), for fiscal years 

2009 through 2015, for the purpose of implementing an array of 

consumer protection laws, including the Consumer Product Safety 

Act. Certain amounts authorized by the bill would be used to fund 

CPSC’s operating expenses, while other funds would be designated 

specifically for the Office of Inspector General, capital improvements to the agency’s testing facility, and research into the use of 

nanotechnology in consumer products. 

CBO estimates that implementing S. 2045 would increase spending subject to appropriation by $447 million over the 2009–2012 period, assuming appropriation of the specified amounts. In addition, 

CBO estimates the bill would increase federal revenues by $17 million over the 2008–2012 period, and $48 million over the 2008–

2017 period by increasing civil penalties levied by CPSC. CBO estimates the bill would not affect direct spending. 

S. 2045 contains an intergovernmental mandate as defined in the 

Unfunded Mandates Reform Act (UMRA) because it would require 

state and local governments to comply with whistleblower protections authorized in the bill. CBO estimates that the costs to governments of complying with the mandate would be small and 

would not exceed the threshold established in UMRA ($66 million 

in 2007, adjusted annually for inflation). 

S. 2045 would impose private-sector mandates, as defined in 

UMRA, on manufacturers, retailers, distributors, and importers of 

consumer products subject to CPSC enforcement. Because of the 

large volume of consumer products that would be affected by the 

mandates, CBO expects that the total cost of complying with them 

would exceed the annual threshold established in UMRA for priVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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vate-sector mandates ($131 million in 2007, adjusted annually for 

inflation). 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 2045 is shown in the following table. The costs 

of this legislation fall within budget function 550 (health). 

By fiscal year, in millions of dollars— 

2008 2009 2010 2011 2012 2008– 

2012 

2008– 

2017 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Authorization Level ...................................................... 0 123 131 99 109 462 n.a. 

Estimated Outlays ....................................................... 0 107 129 103 108 447 n.a. 

CHANGES IN REVENUES 

Estimated Revenues .................................................... 2 3 4 4 4 17 48 

Note: n.a. = not applicable. 

Basis of Estimate: 

Spending subject to appropriation 

Assuming that the specified amounts would be provided for each 

year, and that spending would follow historical patterns, CBO estimates that implementing S. 2045 would increase discretionary 

spending by $447 million over the 2009–2012 period. 

S. 2045 would amend and reauthorize several consumer protection laws, including the Consumer Product Safety Act. It would authorize appropriations for CPSC starting with funding levels for fiscal year 2009. The bill would authorize separate amounts for 

CPSC’s general operating expenses, the Office of the Inspector General, capital improvements to the agency’s research, development, 

and testing facility, and for research into the use of nanotechnology 

in consumer products. 

The bill would require CPSC to modify and expand regulations 

regarding levels of lead paint in children’s toys, for safety standards for all-terrain vehicles, and standards for portable gasoline 

containers. The bill also would require CPSC to make changes to 

rules regarding public notification of safety standards and recalls, 

its tracking of potentially hazardous products, and its enforcement 

responsibilities. In addition, the bill would direct the commission to 

employ at least 500 full-time workers by October 2013. Currently, 

CPSC employs just over 400 full-time workers. 

Revenues 

S. 2045 would increase the maximum civil penalty for violations 

of consumer product safety standards and applicable rules under 

the Consumer Product Safety Act. CBO estimates that by raising 

the maximum penalty, the bill would increase revenues by $17 million over the 2008–2012 period and $48 million over the 2008–2017 

period. 

Those safety standards, which are enforced by CPSC, currently 

stipulate that any person who knowingly manufactures or sells 

products that fail to comply with applicable safety standards faces 

civil penalties up to $1.825 million for each violation in 2007. The 

bill would increase the maximum penalty to $100 million for each 

violation. 

Since 2001, civil penalties assessed by CPSC have averaged $4.7 

million annually. The average penalty collected during that time 


wwoods2 on PRODPC68 with REPORTS
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was $525,000, or less than 30 percent of the maximum amounts. 

About 25 percent of the penalties exceeded $1 million. 

Based on an analysis of historical assessments, CBO expects that 

a small number of cases would be directly affected by the higher 

maximum penalty. Specifically, only a few fines per year were assessed at more than 50 percent of the maximum amount. However, 

the fines collected over the past several years may have been constrained by the current-law limit. CBO expects that increasing the 

cap would change the dynamics of litigating and settling large 

cases and estimates that the average penalty for larger cases would 

eventually double, while the average penalty for smaller cases 

would be about 20 percent higher. 

Estimated impact on state, local, and tribal governments: S. 2045 

would extend whistleblower protection to employees of state and 

local governments who provide information about violations of safety standards enforceable by the CPSC. State and local governments 

would be prohibited from discharging or discriminating against 

those employees and would be subject to an order by the Secretary 

of Labor that could require reinstating the employee and providing 

damages. The requirement to comply would be an intergovernmental mandate as defined in UMRA. Because compliance with the 

protections likely would involve only adjustments to administrative 

procedures, CBO estimates that the mandate costs would be small 

and would not exceed the threshold established in UMRA ($66 million in 2007, adjusted annually for inflation). 

In general, state and local governments would benefit from a provision in the bill that would authorize the commission to provide 

them product information. States also would benefit from other 

provisions that would give them broader flexibility to implement 

their own safety standards as well as authority to enforce federal 

safety standards. Any related costs state and local governments 

incur to enforce safety standards or to comply with confidentiality 

agreements tied to information from the commission would be incurred voluntarily. 

Estimated impact on the private sector: S. 2045 contains several 

private-sector mandates as defined in UMRA. The bill would impose requirements to address the incidence and effects of unsafe 

products, ban the use of lead in certain products, and establish new 

product safety standards. Based on information from the CPSC and 

industry sources, CBO expects that the total cost of complying with 

the mandates would exceed the annual threshold established in 

UMRA for private-sector mandates ($131 million in 2007, adjusted 

annually for inflation). 

ADDRESSING THE INCIDENCE AND EFFECTS OF UNSAFE PRODUCTS

The bill would impose requirements aiming to reduce consumers’

exposure to unsafe products, including but not limited to: 

• Requiring that all children’s products manufactured in and imported into the United States be tested by third-party laboratories 

and certified to meet applicable standards; 

• Requiring manufacturers of children’s products to display 

tracking labels with the source, date, and cohort of production on 

each product and its packaging; 

• Requiring manufacturers of durable infant and toddler products to include consumer registration forms with each product, 


wwoods2 on PRODPC68 with REPORTS
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maintain a record of registered consumers to inform them of recalls, and permanently place tracking information on each product; 

and • Making it illegal to manufacture, distribute, import, or sell 

banned, non-compliant, or recalled products. 

Both CPSC and industry sources expect that these mandates 

could impose substantial costs on the private sector. The costs 

would depend on the specific requirements imposed by CPSC. Manufacturers of children’s products would be required to have their 

products tested and certified by third-party laboratories and include tracking labels on each product and its packaging within one 

year of the date on which the CPSC Reform Act is enacted. Toy manufacturers, which account for about $37 billion in toy 

sales (including video games) each year, could be most affected by 

these mandates. Though many manufacturers currently test products, requirements that differ from current testing practices would 

lead to significant costs to the industry due to the volume of toys 

sold each year and the costs associated with testing products. Also, 

the certification requirement would likely impose new costs on all 

manufacturers of children’s products since currently manufacturers 

either self-certify or do not certify products at all. 

Additionally, the requirement to display tracking labels with the 

source, date, and cohort of production would be a new requirement 

and would consequently impose new costs on all manufacturers, 

though the cost would vary by product. For example, according to 

industry sources, manufacturers would have to pay around $5,000 

per toy (or other product) for products made in molds to have the 

molds remanufactured to include the tracking label. For clothes 

and stuffed toys, the cost to retool would be considerably less. 

The Juvenile Products Manufacturers Association (JPMA), which 

represents makers of products ranging from cribs to car seats for 

children, expects that its members could experience as much as a 

10 percent increase in costs as a result of the testing and certification requirements, including the registration requirements for 

manufacturers of durable infant and toddler products. For an industry with about $7 billion in sales (excluding diapers), the incremental cost to comply with those mandates could be large relative 

to UMRA’s threshold for private-sector mandates. 

The costs associated with the provision that would make it illegal 

to manufacture, distribute, import, or sell banned, non-compliant, 

or recalled products would be relatively small. Most manufacturers 

and retailers stop producing or selling recalled products as soon as 

the recall is known. Since most recalls are voluntary, however, it 

is currently legal to sell such goods. Businesses in secondary markets—such as ‘‘mom-n-pop’’ shops, discount stores, and Internet 

Web sites—that sell such recalled goods would incur costs. 

BANNING LEAD IN CONSUMER PRODUCTS

S. 2045 would ban children’s products that have a lead content 

that exceeds 200 parts per million (ppm) in children’s jewelry and 

400 ppm in all other children’s products. It also would lower the 

permissible lead content in paint used by consumers from 600 ppm 

to 90 ppm. The bill would allow CPSC to temporarily modify the 

permissible lead levels for electronic products, for which the 400 

ppm lead requirement may not be feasible. 


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A considerable number of manufacturers, especially those that 

make children’s jewelry and electronic devices, are concerned about 

the feasibility of the lead requirement. According to the Fashion 

Jewelry Trade Association, metal jewelry cannot be made with a 

lead content as low as 200 ppm. Though children’s jewelry (intended for children 7 and under) only comprises around 5 percent 

of the sales of the fashion jewelry industry, manufacturers of jewelry products could still experience significant costs, as even plastic 

jewelry uses metal clasps. Manufacturers of complex and electronic 

toys might also experience significant costs as a result of the lead 

requirement, though the costs would depend on future CPSC decisions regarding interim requirements on lead content in electronic 

children’s products. Ultimately, manufacturers of many types of 

children’s products might have to modify operations to comply with 

this mandate. 

ESTABLISHING NEW PRODUCT SAFETY STANDARDS

Finally, the bill would impose private-sector mandates by establishing several consumer product safety rules and standards based 

on voluntary industry standards set by the American Society for 

Testing and Materials (ASTM-International), the American National Standards Institute (ANSI) and the Specialty Vehicle Institute of America (SVIA), including standards for: 

• Child-resistant closures on portable gasoline containers (ASTM 

F2517–05), 

• Toy safety (ASTM-International Standard F963–07), and 

• All-terrain vehicle safety (ANSI/SVIA–1–2007). 

The bill also would require all automatic garage door openers 

that directly drive the door in the closing direction to include an 

external secondary entrapment protection device that does not require contact with a person or object for the garage door to reverse 

its movement. CPSC and industry sources expect the cost of compliance with these mandates to be relatively small as most manufacturers already comply voluntarily. 

Estimate prepared by: Federal Costs: Geoffrey Gerhardt; Revenues: Pamela Greene; Impact on State, Local, and Tribal Governments: Lisa Ramirez-Branum; Impact on the Private Sector: 

MarDestinee C. Perez. 

Estimate approved by: Keith J. Fontenot, Deputy Assistant Director for Health and Human Resources, Budget Analysis Division. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

The regulatory changes to the authority of the CPSC would apply 

to all of the manufacturers, importers and retailers of consumer 

products under the jurisdiction of the agency. Currently, there are 

more than 15,000 types of consumer products under the jurisdiction 

of the CPSC. 


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ECONOMIC IMPACT

It is anticipated that manufacturers would have to make significant design changes, use different materials and improve safety 

protocols to ensure compliance with new mandatory consumer 

product rules and recall requirements issued from the CPSC Reform Act. Retailers will have to change protocols in regards to recalled product management to be in compliance with S. 2045. 

PRIVACY

S. 2045 would have no anticipated impact on the privacy of individuals. 

PAPERWORK

The legislation would increase paperwork requirements for the 

impacted manufacturers, retailers and importers that have to work 

with the CPSC to prove compliance with the amended Acts under 

the authority of the Commission. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short Title; Table of Contents. 

The act would be cited as the CPSC Reform Act of 2007. 

Section 2. Amendment of Consumer Product Safety Act. 

Unless specified to the contrary, section references in the bill are 

to the CPSA. 

Section 3. Reauthorization. 

S. 2045 would authorize funding of the Commission at the following levels: 

(1) $80,000,000 for FY 2009; 

(2) $88,500,000 for FY 2010; 

(3) $96,800,000 for FY 2011; 

(4) $106,480,000 for FY 2012; 

(5) $117,128,000 for FY 2013; 

(6) $128,841,000 for FY 2014; and 

(7) $141,725,000 for FY 2015. 

In addition to the general funding delineated in the schedule 

above, the Reform Act would authorize funds to improve the Office 

of the Inspector General for the CPSC at the following levels: 

(1) $1,600,000 for FY 2009; 

(2) $1,770,000 for FY 2010; 

(3) $1,936,000 for FY 2011; 

(4) $2,129,600 for FY 2012; 

(5) $2,342,560 for FY 2013; 

(6) $2,576,820 for FY 2014; and 

(7) $2,834,500 for FY 2015. 

The bill also creates separate authorizations for improving the 

CPSC testing laboratories and improving research resources for the 

nanotechnology safety in consumer products. S. 2045 would authorize an additional $40,000,000 for use in FY 2009 and 2010 for renovating and improving the CPSC laboratories. The $40,000,000 is 

to be expended over the two-year period. The Reform Act would 


wwoods2 on PRODPC68 with REPORTS
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also authorize $1,000,000 for use in FY 2009 and 2010 for research 

into the safety impact of nanotechnology in consumer products. 

Section 4. Personnel. 

Subject to the availability of appropriations, S. 2045 would require the CPSC to increase the number of its fulltime personnel to 

at least 500 from its current level of 420 by October 1, 2013. The 

personnel level is a floor, and as resources and duties dictate, the 

CPSC may hire more than 500 in the prescribed timeframe as 

needed to fulfill its mission and its current and new authority. In 

addition to the minimum requirement for personnel, an additional 

50 employees must be hired for duty stations at U.S. ports of entry, 

or for deployment to inspect overseas production facilities by October 1, 2010. Under no circumstances should the 50 employees reduce the number of personnel assigned to duties at CPSC headquarters or to CPSC regional offices. 

Professional Career Path. S. 2045 would require the CPSC to develop and implement a professional career development program to 

encourage the retention and promote the development of career 

personnel. 

Change of Employment Status by Political Appointees. The bill 

prohibits the appointment of a political employee to a civil service 

position within the Commission, unless the appointment is authorized by unanimous vote of the Commission or more than 1 year has 

elapsed since his or her termination from the CPSC political position. 

Personnel in the Immediate Office of Commissioners. S. 2045 

would prohibit the reduction of staff in the office of a Commissioner, unless the reduction is authorized by a unanimous vote of 

the Commission. 

Section 5. Full Commission Requirement; Interim Quorum. 

The Committee continues to be concerned about the current cycle 

of the Commission losing its quorum as a matter of course over the 

past few years. The instability of this occurrence is a waste of resources in that the CPSC is foreclosed from fulfilling its duties 

whenever a Commissioner or a Chairman decides to leave the Commission. It is the opinion of the Committee that returning the 

CPSC to its full complement of five Commissioners brings stability 

and a diversity of experience that would aid in the execution of the 

CPSC mandates. The Reform Act would repeal the limit on the use 

of appropriated funds for more than three Commissioners and 

would urge the President to nominate members to fill all five Commissioner positions. 

Temporary Quorum. In recognition of the current Commission 

make-up, the section also would allow 2 Commissioners of the 

CPSC, if they are not affiliated with the same political party, to 

constitute a quorum for the transaction of business for the ninemonth period beginning on the date of enactment. 

Section 6. Submission of Copy of Certain Documents to Congress. 

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agement and Budget. The section further amends P.L. 104–66, 

which eliminated this requirement from the CPSA in 1995. 

Section 7. Public Disclosure of Information. 

The Reform Act would modify section 6(a) of the CPSA to provide 

manufacturers and private labelers 15 days to review information 

for confidentiality prior to disclosure. If the CPSC disagrees with 

the company’s confidentiality designation, the company can appeal 

the decision to the CPSC General Counsel, who shall act within 30 

days. The General Counsel’s decision may be appealed to the full 

Commission, which shall act within 15 days. The modification 

takes the appeals process out of the Federal courts as is under current law. The new appeals procedure is similar to the process at 

the National Highway Traffic Safety Administration and greatly 

streamlines the procedure for issuing a decision. 

S. 2045 would modify section 6(b) of the CPSA, which requires 

the CPSC to submit to manufacturers and private labelers information that is to be disclosed to the public before it is released. The 

Commission then must take reasonable steps to assure that the information is accurate and reasonably related to effectuating the 

purposes of the Act. Currently, section 6(b) provides manufacturers 

and private labelers with the right to challenge a CPSC decision 

to release information in Federal court. 

Under the bill, prior to its public disclosure of any information 

obtained under this Act, and to the extent practicable, the Commission would be required to notify and provide a summary of the information to each manufacturer or private labeler of any consumer 

product intended to be released, and provide the manufacturer or 

private labeler 15 days to submit comments to the Commission as 

to the accuracy of such information, and to mark documents confidential as appropriate. In disclosing any information under this 

subsection, the Commission would be required to disclose any comments or other information at the request of the manufacturer or 

private labeler as an addendum. If a manufacturer or private labeler disagreed with the Commission’s decision to disclose information 

to the public, it would be able to appeal that determination to the 

General Counsel of the Commission. A second and final appeal may 

be made to the full Commission. The document in question may not 

be made public during the pendency of either appeal. 

The requirement to disclose manufacturer or private labeler 

addendums would not apply to Commission actions on imminent 

hazards, substantial product hazards, or if the Commission has 

reasonable cause to believe a company has violated one of the prohibited acts of the CPSA. The requirement also does not apply to 

information concerning a rulemaking proceeding, an adjudicatory 

proceeding, or other administrative or judicial proceeding. The 

Commission also may not disclose the names or addresses of consumers in its release of information to the public, unless the consumer consents in writing. 

Section 8. Rulemaking. 

S. 2045 would revise the CPSC’s rulemaking procedures under 

the CPSA, FHSA, and the FFA to make permissive the current requirement that the CPSC issue an advanced notice of proposed 

rulemaking before issuing a notice of proposed rulemaking. The 


wwoods2 on PRODPC68 with REPORTS
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section clarifies that rulemaking proceedings under the FHSA are 

governed by the procedures set forth in the FHSA and not the Federal Food, Drug, and Cosmetic Act. The section also deletes references to the Secretary of Health, Education, and Welfare and replaces with references to the CPSC consistent with the transfer of 

functions to the CPSC in 1972 under section 30 of the CPSA (P.L. 

92–573). 

Section 9. Prohibition on Stockpiling Under Other Commission-Enforced Statutes. 

The Reform Act would authorize the Commission to prohibit, by 

rule, a manufacturer from stockpiling a product that is subject to 

a rule under the CPSA or any other law enforced by the CPSC. 

Section 10. Third-Party Certification of Children’s Products. 

S. 2045 would establish a process that would ensure that manufacturers use third party laboratories to test all children’s products 

and certify the products’ compliance with applicable consumer 

product safety standards. The Reform Act would require every 

manufacturer of a children’s product (and the private labeler of 

such product if it bears a private label), which is subject to a consumer product safety standard under the CPSA, or a rule under 

this or any other Act enforced by the Commission declaring a consumer product a banned hazardous substance to: have the product 

tested by a qualified third-party laboratory; certify that such product conforms to such consumer product safety standard or is not a 

banned hazardous substance; and specify the applicable consumer 

product safety standard or rule. If an advertisement, label, or package contains a reference to a consumer product safety standard, a 

statement with respect to whether the product meets all requirements of that standard also would be required. 

Within one year after the date of enactment of this Act, the Commission would be required to, by rule: (1) establish protocols and 

standards for acceptance of certification or continuing guarantees 

of compliance by manufacturers; (2) establish protocols and standards for verifying that such products tested by third-party laboratories comply with the applicable standards under this Act or other 

Acts enforced by the Commission; (3) prescribe standards for accreditation of third party laboratories, either by the Commission or 

by one or more independent standard-setting organizations to 

which the Commission delegates authority, to engage in certifying 

compliance; (4) establish requirements, or delegate authority to one 

or more independent standard-setting organizations for third-party 

laboratory testing, as the Commission determines is necessary to 

test random samples of products certified under this section on an 

ongoing basis to ensure they meet the requirements for certification; (5) establish requirements for periodic audits of third-party 

laboratories by an independent standard-setting organization as a 

condition for accreditation; and (6) establish a program by which 

manufacturers may label products as compliant with the certification requirements. 

Interim Procedure. Within 30 days after the date of enactment of 

S. 2045, the Commission would be required to consider existing 

laboratory testing certification procedures established by independent standard-setting organizations and designate an existing 


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procedure for manufacturers of children’s products to follow until 

the Commission issues its final rule. 

Definitions: 

CHILDREN’S PRODUCT.—A product (other than a medication, 

drug, or food) designed or intended for use by, or care of, a 

child 7 years of age or younger. In determining whether a 

product is intended for use by a child 7 years of age or younger, the following factors shall be considered: (a) a statement by 

a manufacturer about the intended use of such toy or article, 

including a label on such good, if such statement is reasonable; 

(b) the context and manner of the advertising, promotion, and 

marketing associated with the good; (c) whether the good is 

commonly recognized by consumers as being intended for use 

by a child 7 years of age or younger; and (d) the Age Determination Guideline issued by the CPSC in September 2002 

and any subsequent version of such Guideline. 

THIRD PARTY LABORATORY.—A testing entity that is designated by the Commission or by an independent standard-setting organization to which the Commission delegates the authority to make such a designation, as a testing laboratory that 

is competent to test products for compliance with applicable 

safety standards under the CPSA and other Acts enforced by 

the Commission. Upon request, the Commission would have 

the authority to certify a laboratory that is owned, managed, 

controlled, or directed by the manufacturer or private labeler 

as a third party laboratory, if the Commission: (1) finds that 

certification of the laboratory would provide equal or greater 

consumer safety protection than the manufacturer’s use of an 

independent third party laboratory; (2) establishes procedures 

to ensure that the laboratory is protected from undue influence, including pressure to modify or hide test results, by the 

manufacturer or private labeler; and (3) the laboratory establishes procedures for confidential reporting of allegations of 

undue influence to the Commission. The Commission or an 

independent standard-setting organization to which the Commission has delegated such authority, may decertify a third 

party laboratory if it finds, after notice of investigation, that a 

manufacturer or private labeler has exerted undue influence 

on the laboratory. 

LABEL AND CERTIFICATION.—Not later than one year after 

the date of enactment of S. 2045, the Commission would be required to prescribe a product certification and labeling rule for 

children’s products as defined in this section. 

Prohibition on Imports of Children’s Products Without ThirdParty Testing Certification. S. 2045 also would prohibit the importation of any children’s product that is not accompanied by certification from a third party laboratory as required by this section. 

Section 11. Tracking Labels for Products for Children. 

S. 2045 would expand existing labeling requirements to provide 

important safety information to consumers, facilitate recalls, and 

limit the scope of recalls to veritable unsafe products. 

Internet and Catalogue Advertising Labeling. S. 2045 would 

amend the FHSA to require manufacturers, retailers, distributors, 


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private labelers, and licensors for any toy, game, balloon, small 

ball, or marble that requires a warning label in stores under current law to provide a similar cautionary statement to be displayed 

in a catalogue or online advertisement. 

Tracking Labels. S. 2045 would require manufacturers of children’s products to place distinguishing marks on the product and 

its packaging, to the extent practicable, that would enable the purchaser to ascertain the source, date, and cohort (including the 

batch, run number, or other identifying characteristic) of production of the product by reference to those marks. To the extent that 

small toys and other small products are manufactured and shipped 

without individual packaging, the Committee recognizes that it 

may not be practical for a label to be printed on each item. The 

packaging of the bulk shipment of those items, however, would be 

required to be labeled so that retailers and vendors would be able 

to easily identify products that are recalled. The CPSC would also 

be authorized to extend this requirement to other products through 

a rulemaking proceeding. 

Section 12. Substantial Product Hazard Reporting Requirement. 

S. 2045 would require that every manufacturer, including an importer, of a consumer product or other product or substance under 

the jurisdiction of the Commission, and every distributor and retailer of such product, who obtains information which reasonably 

supports the conclusion that such product fails to comply with any 

safety-related rule or standard promulgated by the Commission, to 

immediately inform the Commission of such failure. 

Section 13. Corrective Action Plans. 

The Reform Act would provide the Commission with the authority to approve the corrective action plan elected by the person recalling the products. If the Commission finds that an approved corrective action plan is not effective, or that the person is not executing an approved action plan effectively, the Commission may 

order the action plan to be amended. If the Commission determines, after notice and the opportunity for comment, that a person 

failed to comply substantially with its obligations under an action 

plan, the Commission would have the authority to revoke approval 

of the action plan and the person would be prohibited from distributing the product. 

Section 14. Identification of Manufacturer by Importers, Retailers, 

and Distributors. 

S. 2045 would give the Commission the authority to require 

every importer, retailer, or distributor of a consumer product or 

other product under the Commission’s jurisdiction to identify the 

manufacturer of that product by name, address, or such other identifying information as the Commission may request. Every manufacturer also would be required to identify each retailer, or distributor, to which it supplied a given consumer product by name, 

address, or such other identifying information as well as the identifying information as to each subcontractor involved in the manufacturing of a product upon the request of the Commission. 


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Section 15. Repeated Importation Offenses. 

S. 2045 would authorize the Commission to designate as a repeat 

offender, after notice and an opportunity for a hearing, any customs broker found by the Commission to have aided and abetted 

the importation of a consumer product on multiple occasions in violation of section 17 of the CPSA. Minor violations of the CPSA 

would not be counted for purposes of determining whether a customs broker was a repeat offender. The Committee intends that the 

Commission have the ability to penalize customs brokers who actively aid importers in circumventing customs processes, entry inspections, or other safeguards for the purpose of violating consumer 

product safety laws and regulations. The Commission also would be 

authorized to refer any such repeat offender to U.S. Customs and 

Border Protection with a recommendation that the custom broker’s 

import license be revoked in accordance with that agency’s procedures. The U.S. Customs and Border Protection agency would be 

required to revoke the customs broker license of any customs 

broker in violation of this section. 

Section 16. Prohibited Acts. 

Sale of Recalled Products. S. 2045 would make it unlawful for 

any person to sell, offer for sale, manufacture for sale, distribute 

in commerce, or import into the United States any consumer product that is not in conformity with an applicable consumer product 

safety standard, is subject to a voluntary corrective action taken by 

the manufacturer of which action the CPSC has notified the public 

of the extent to which the seller knew or should have known of the 

corrective action, or has been designated a banned hazardous substance. 

Export of Recalled Products. The Reform Act also would authorize the Commission to prohibit a person from exporting from the 

United States for the purpose of sale any product or substance regulated by the Commission that the Commission determines, after 

notice to the manufacturer, is not in conformity with an applicable 

product safety standard and does not violate applicable safety 

standards established by the importing country; has been designated a banned hazardous substance; or is subject to voluntary 

corrective action taken by the manufacturer and would have been 

subject to a mandatory corrective action by the CPSC, except that 

the Commission may permit the export of such product if it meets 

applicable safety standards established by the importing country. 

S. 2045 would make conforming changes to the FHSA and FFA to 

ensure that the Commission’s authority to prohibit the export of 

certain recalled products extends to products and substances regulated under those acts. 

False Certification of Compliance with Testing Laboratory Standard. S. 2045 would make it unlawful for any person to sell, offer 

for sale, distribute in commerce, or import into the United States 

any consumer product bearing a false certification mark of compliance with a safety standard established by a nationally recognized 

testing laboratory, if such person knew or should have known that 

the certification mark was false. 

Misrepresentation of Information in Investigation. The Reform 

Act would make it unlawful to misrepresent to any officer or employee of the Commission the scope of consumer products subject 


wwoods2 on PRODPC68 with REPORTS
34 

to a corrective action or to make a material misrepresentation to 

such an officer or employee in the course of an investigation under 

the CPSA or another Act enforced by the Commission. 

Certificates of Compliance with Mandatory Standards. S. 2045 

would make it unlawful to fail to furnish a certificate required by 

any statute enforced by the Commission, or to issue a false certificate if a person in the exercise of due care has reason to know that 

the certificate is false or misleading in any material respect; or to 

fail to comply with any other labeling rule promulgated under 

CPSA section 14(c). 

Undue Influence on Third Party Laboratories. S. 2045 would 

make it unlawful to exercise undue influence on third party laboratories with respect to the testing, or reporting of the results of testing, of any product for compliance with a standard under the CPSA 

or any other Act enforced by the Commission. 

Section 17. Penalties. 

CPSA Civil Penalties. The civil penalty cap for each violation of 

a prohibited act under the CPSA would increase from $8,000 to 

$250,000. The maximum civil penalty cap for any related series of 

violations would increase from $1,825,000 to $100,000,000. 

FHSA Civil Penalties. The civil penalty cap for each violation of 

a prohibited act under the FHSA would increase from $8,000 to 

$250,000. The maximum civil penalty cap for any related series of 

violations would increase from $1,825,000 to $100,000,000. 

FFA. The civil penalty cap for each violation of a prohibited act 

under the FFA would increase from $8,000 to $250,000. The maximum civil penalty cap for any related series of violations would increase from $1,825,000 to $100,000,000. 

This section also would change the start date of inflation adjustments for the penalties in the CPSA, the FHSA, and the FFA. The 

maximum penalty amounts authorized in this section would be adjusted for inflation not later than December 1, 2011, and December 

1 of each fifth calendar year thereafter. 

Criminal Penalties. S. 2045 would make a knowing violation of 

the CPSA, FFA, or the FHSA punishable by imprisonment for not 

more than 1 year and a knowing and willful violation of the CPSA, 

FFA, or FHSA punishable by imprisonment for not more than 5 

years. Criminal fines would be set in accordance with section 3571 

of title 18, United States Code. This section would strike the requirement that the CPSC provide a person with notice of noncompliance and wait until the person violates the law again before 

seeking a criminal penalty. 

Civil Penalty Criteria. Within one year after the date of enactment of S. 2045, the Commission would be required to initiate a 

rulemaking to establish criteria for the imposition of civil penalties 

for the CPSA and any other Act enforced by the Commission. Such 

rulemaking should take into consideration whether the person has 

repeatedly violated product safety laws, the precedential value of 

prior adjudicated matters, the nature of the product defect, the severity of the risk of injury, the occurrence or absence of injury, the 

number of defective products distributed, the appropriateness of 

such penalty in relation to the size of the business charged, and 

other circumstances when determining the civil penalty imposed. 


wwoods2 on PRODPC68 with REPORTS
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Criminal Penalties to Include Asset Forfeiture. In addition to 

other penalties provided, the section would authorize the Commission to seek the forfeiture of assets associated with a violation as 

a criminal penalty under any Act enforced by the Commission. 

Section 18. Preemption. 

Effect of Rules and Policy Statements on Preemption. The section 

provides that the provisions of sections 25 and 26 of the CPSA, section 18 of the FHSA, section 16 of the FFA, and section 7 of the 

PPA, establishing the extent to which those acts preempt, limit, or 

otherwise affect any other Federal, State, or local law, any rule, 

procedure, or regulation, or any cause of action under any State or 

local law, may not be expanded in scope, or limited, modified or extended in application, by any rule or regulation, referenced in any 

preamble, statement of policy, executive branch statements, or 

other matter associated with the publication of any such rule or 

regulation. 

Clarification of Preemption. The section further provides that the 

provisions of sections 25 and 26 of the CPSA, section 18 of the 

FHSA, section 16 of the FFA, and section 7 of the PPA would be 

preemptive of any State or local law, or any cause of action under 

State or local law, only to the extent provided in those Acts unless 

compliance with duties imposed by State law would make compliance with the Federal rule or regulations promulgated under those 

Acts impossible. 

Section 19. Sharing of Information with Federal, State, Local, and 

Foreign Law Enforcement Agencies. 

S. 2045 would authorize the Commission to make information obtained by the Commission available to any Federal, State, local, or 

foreign law enforcement agency upon the prior certification that 

such material will be maintained in confidence and will be used 

only for official law enforcement or consumer protection purposes, 

provided: (a) the agency has set forth a bona fide legal basis for its 

authority to maintain the material in confidence; (b) the materials 

are to be used for purposes of investigating or enforcing violations 

of product safety laws, aiding a CPSC investigation or enforcement 

proceeding, or, with the approval of the Attorney General, aiding 

in investigating an offense covered by a criminal mutual legal assistance treaty. The CPSC would not be authorized to share information with a foreign government agency that the Secretary of 

State has determined has repeatedly provided support for acts of 

international terrorism. The section also would require the CPSC 

not to disclose confidential information provided by foreign governments, except pursuant to a court order or Congressional request. 

The Commission also would have the authority to terminate a 

memorandum of understanding or other agreement with another 

agency if it determines that the other agency has not conformed to 

the Commission’s confidentiality requirements. 

In this section, the term ‘‘foreign government agency’’ would be 

defined as any agency or judicial authority of a foreign government, 

including a foreign state, a political subdivision of a foreign state, 

a multinational organization comprised of foreign states, or any 

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tioned entities that is vested with law enforcement or investigative 

authority in civil, criminal, or administrative matters. 

Section 20. Bonding. 

The Reform Act provides the Commission the authority in a rulemaking proceeding to require that a person that has committed 

multiple significant violations of any rule or act enforced by the 

Commission, or the manufacturer or distributor of a category or 

class of consumer products, or the manufacturer or distributor of 

any product or substance regulated under any other Act enforced 

by the Commission to post a bond (or other security acceptable to 

the Commission) in an amount sufficient to cover the costs of an 

effective recall of the product or substance, or, in the case of an imported product or substance, to cover the costs of holding the product or substance at the port and destroying the product or substance - should such action be required by the Commission. 

Section 21. Enforcement by State Attorneys General. 

S. 2045 authorizes a State to bring a civil action on behalf of its 

residents in an appropriate State or district court to enforce the 

provisions of the CPSA or any other Act enforced by the Commission to obtain penalties and relief provided under the applicable 

act. It is the intent of the Committee that a State attorney general 

that seeks penalties under this section would be entitled to retain 

any penalty awarded. If multiple State attorneys general or the 

Commission participate in an action, conferral of an award would 

be at the discretion of the court based on the level of participation 

of the party, the harm experienced by the State, and any other equitable factor. The State would be required to serve written notice 

to the Commission of any civil action at least 60 days prior to initiating such civil action, if feasible. Upon receiving the notice the 

Commission would be authorized to intervene in the civil action, be 

heard on all matters in the case, and file petitions for appeal of a 

decision. 

In a civil action, the venue would be required to be a judicial district in which the manufacturer, distributor, or retailer was authorized to do business. If the Commission has instituted a civil action 

or an administrative action for a violation of the CPSA or any other 

Act enforced by the Commission, no State attorney general would 

be authorized to bring an action during the pendency of the Commission action against any defendant or agency named in the complaint. If the attorney general of the State prevails in any civil action, he or she would be authorized to recover reasonable costs and 

attorneys’ fees from the covered entity. 

Section 22. Whistleblower Protections. 

Whistleblower Protection. S. 2045 would make it unlawful for a 

manufacturer, private labeler, distributor, or retailer, or any Federal, State, or local government employing agency to discharge an 

employee or otherwise discriminate against an employee because 

the employee, whether at the employee’s initiative or in the ordinary course of the employee’s duties: (1) provided, caused to be provided, or is about to provide to the employer, the Federal Government, or the attorney general of a State information relating to any 

violation or alleged violation of any order, regulation, or consumer 


wwoods2 on PRODPC68 with REPORTS
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product safety standard under any other law enforceable by the 

Commission; (2) testified or is about to testify in such a proceeding; 

(3) assisted or participated or is about to assist or participate in 

such a proceeding; or (4) objected to, or refused to participate in, 

any activity the individual believed to be in violation of an applicable law or to be a substantial and specific danger to public health 

or safety. 

Employee Award. The section further provides that if the Commission or State attorney general proceeds with an action against 

a manufacturer, private labeler, distributor, or retailer for a violation of any act enforced by the Commission, on the basis of information provided by such an employee, the employee would receive 

at least 15 percent but not more than 25 percent (as determined 

by the Commission in consultation with the attorney general that 

brought the action) of any civil penalty assessed and collected by 

the Commission or State attorney general for the violation, depending upon the extent to which the information provided by the employee substantially contributed to the enforcement action. If the 

Commission’s action is based primarily on disclosures of specific information not provided by the employee, the Commission may 

award such sums as it considers appropriate based on the significance of the information or role of the employee, but in no case 

more than 10 percent (as determined by the Commission in consultation with the attorney general that brought the action) of the 

civil penalty assessed and collected. 

Employee Recourse and Complaint Procedures. A person who believes that he or she has been discharged or otherwise discriminated against may, not later than one year after the date on which 

such violation occurs, file a complaint with the Secretary of Labor. 

Upon receipt of such a complaint, the Secretary would notify, in 

writing, the person named in the complaint of the allegations, the 

substance of evidence supporting the complaint, and the opportunities to respond that will be afforded to such person. Not later than 

60 days after the date of receipt of a complaint and after affording 

the person named in the complaint an opportunity to submit to the 

Secretary a written response to the complaint and an opportunity 

to meet with a representative of the Secretary to present statements from witnesses, the Secretary would be required to conduct 

an investigation and determine whether there is reasonable cause 

to believe that the complaint has merit. The Secretary would notify, in writing, the complainant and the person alleged to have 

committed the violation of his findings. If the Secretary concludes 

that he has a reasonable cause to believe that a violation has occurred, the Secretary would be required to accompany the Secretary’s findings with a preliminary order providing the relief. Not 

later than 30 days after the date of notification of findings under 

this paragraph, either the person alleged to have committed the 

violation or the complainant may file objections to the findings or 

preliminary order, or both, and request a hearing on the record. 

The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Such hearings 

would be required to be conducted expeditiously. If a hearing is not 

requested in such 30-day period, the preliminary order would be 

deemed a final order that is not subject to judicial review. 


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If the complainant does not make a prima facie showing, the Secretary would be required to dismiss a complaint filed under this 

subsection and would not be authorized to conduct an investigation 

into employee discrimination. Similarly, no investigation or relief 

would be authorized if the employer demonstrates by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior. The Secretary would be authorized to determine a violation occurring if the 

complainant demonstrates that certain actions were a contributing 

factor in the unfavorable personnel action alleged in the complaint. 

Relief would not be ordered unless the employer demonstrates by 

clear and convincing evidence that the employer would have taken 

the same unfavorable personnel action in the absence of that behavior. 

Not later than 120 days after the date of conclusion of a hearing, 

the Secretary would be required to issue a final order providing the 

relief or denying the complaint. At any time before issuance of a 

final order, a proceeding may be terminated on the basis of a settlement agreement entered into by the Secretary, the complainant, 

and the person alleged to have committed the violation. 

If, in response to a complaint, the Secretary determines that a 

violation of a certain subsection has occurred, the Secretary would 

be required to: order the person who committed such violation to 

take affirmative action to abate the violation; reinstate the complainant to his or her former position together with the compensation (including back pay); restore the terms, conditions, and privileges associated with his or her employment; and provide compensatory damages to the complainant. 

If such an order is issued under this paragraph, the Secretary, 

at the request of the complainant, would be required to assess 

against the person against whom the order is issued a sum equal 

to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred. 

If the Secretary finds that a complaint is frivolous or has been 

brought in bad faith, the Secretary would be authorized to award 

to the prevailing employer a reasonable attorney’s fee not exceeding $1,000 to be paid by the employee. 

If the Commission has not issued a final decision within 180 

days after the filing of the complaint, or within 10 days after receiving a written determination, the complainant may bring an action at law or equity for de novo review in the appropriate district 

court of the United States. At the request of either party, the case 

would be tried by the court with a jury. The court would have jurisdiction to grant all appropriate relief to a whistleblower available 

by law or equity including punitive damages up to $250,000. 

Any person adversely affected or aggrieved by a final order would 

be able to obtain review of the order in the U.S. Court of Appeals. 

The petition for review would be required to be filed not later than 

60 days after the date of the issuance of the final order of the Secretary. The commencement of proceeding under this subparagraph 

would not, unless ordered by the court, operate as a stay of the 

order. 

An order of the Secretary would not be subject to judicial review 

in any criminal or other civil proceeding. Whenever any person has 

failed to comply with an issued order, the Secretary would be auVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00040 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

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thorized to file a civil action in the U.S. district court for the district in which the violation was found to occur, or in the U.S. district court for the District of Columbia, to enforce such order. In actions brought under this paragraph, the district courts shall have 

jurisdiction to grant all appropriate relief including, but not limited 

to, injunctive relief and compensatory damages. 

A person on whose behalf an order was issued would be authorized to commence a civil action against the person to whom such 

order was issued to require compliance with such order. The appropriate U.S. district court shall have jurisdiction to enforce such 

order. The court, in issuing any final order under this paragraph, 

would be authorized to award costs of litigation (including reasonable attorney and expert witness fees) to any party whenever the 

court determines such award is appropriate. Any nondiscretionary 

duty imposed by this section would be enforceable in a mandamus 

proceeding. 

Whistleblower protections would not apply to an employee who, 

acting without direction from such manufacturer, private labeler, 

distributor, or retailer (or such person’s agent), deliberately causes 

a violation of a consumer product safety law or regulation. 

Section 23. Ban on Children’s Products Containing Lead. 

S. 2045 would require that beginning 180 days after the date of 

enactment: (1) any children’s product containing lead would be 

treated as a banned hazardous substance under the FHSA; and (2) 

the prohibition would apply without regard to whether the lead 

contained in such children’s product is accessible to children. 

Trace Amounts of Lead. A children’s product would be considered 

to contain lead if: (1) in the case of a children’s product that is jewelry, any part of the product contains lead or lead compounds and 

the lead content of such part is greater than 0.02 percent by weight 

of the total weight of such part; or (2) in the case of a children’s 

product that is not jewelry, any part of the product contains lead 

or lead compounds and the lead content of such part is greater 

than 0.04 percent by weight of the total weight of such part. The 

Commission may establish lesser permissible levels. If the Commission determines that it is not feasible for certain electronic devices, 

including batteries, to comply with the prohibition, the Commission 

is authorized to issue standards to reduce the exposure of and accessibility of lead in such electronic devices, and to establish a 

schedule by which such electronic devices shall be in full compliance with the regulations. 

Regulations. The section further requires that, on the day after 

the date of enactment, the Commission commence a rulemaking as 

to whether lower thresholds should be prescribed for children’s 

products. It is the intent of the Committee that the Commission examine, as part of this rulemaking, the potential effects of trace levels of lead on children and to mandate the lowest thresholds practicable to protect the health of children. If the Commission makes 

a determination that lower threshold levels are warranted, the 

Commission shall promulgate regulations establishing such lower 

thresholds in lieu of the previous thresholds. Pending the establishment of lower thresholds, it is the intent of the Committee that the 

statutory thresholds apply. 


wwoods2 on PRODPC68 with REPORTS
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Lead Paint Standards. S. 2045 also would direct the Commission, within 30 days of enactment, to reduce the permissible lead 

level permitted in consumer use paint from 0.06 percent to 0.009 

percent. 

Section 24. Alternative Measures of Lead Content. 

S. 2045 would require the Commission, in cooperation with the 

National Academy for Sciences and the National Institute of Standards and Technology, to study the feasibility of establishing a 

measurement standard based on a units-of-mass-per-area standard 

that is statistically comparable to the parts-per-million measurement standard currently used in laboratory analysis. 

Section 25. Study of Preventable Injuries and Deaths of Minority 

Children Related to Certain Consumer Products. 

S. 2045 would require the Commission, within 90 days after the 

date of enactment, to initiate a study to assess disparities in the 

risks and incidence of preventable injuries and deaths among children of minority populations, including Black, Hispanic, American 

Indian, Alaskan Native, and Asian/Pacific Islander children in the 

United States. Not later than one year after the date of enactment 

of this Act, the Commission would be required to report its findings 

to Congress. There would be $500,000 authorized to the Commission for carrying out this section for FY2008. 

The study would examine the racial disparities of the rates of 

preventable injuries and deaths related to suffocation, poisoning, 

and drowning including those associated with the use of cribs, mattresses and bedding materials, swimming pools and spas, and toys 

and other products intended for use by children. 

Section 26. Cost-Benefit Analysis Under the Poison Prevention Packaging Act of 1970. 

This section would clarify that nothing in the PPA requires the 

Commission to prepare a comparison of the costs that would be incurred in complying with such standard with the benefits of such 

standard. 

Section 27. Inspector General Reports. 

S. 2045 would require the Inspector General of the Commission 

to conduct reviews and audits of implementation of the Reform Act 

and report on those findings in an annual report to Congress. The 

Inspector also would be required to conduct a review and report on 

complaints from employees of the Commission about violations of 

the CPSA and other Acts enforced by the Commission and leaks 

and unlawful disclosures of information by employees of the Commission to persons not authorized to receive such information. 

Section 28. Public Interest Website Links. 

S. 2045 would require that the Commission, not later than 30 

days after the date of enactment, establish and maintain a direct 

link on the homepage of its Internet website to the Internet 

website of the Office of Inspector General of the Commission and 

a mechanism on the homepage of the Office of Inspector General’s 

Internet website by which individuals may anonymously report 

cases of waste, fraud, or abuse with respect to the Commission. 


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Section 29. Child-Resistant Portable Gasoline Containers. 

The Reform Act would establish, as a consumer product safety 

rule issued by the Commission, that each portable gasoline container for sale in the United States conform to the child resistance 

requirements as specified in the ASTM F2517-05 standard and its 

successors unless the Commission determines otherwise. The rule 

established in this section would apply to each portable gasoline 

container manufactured on or after the date that is 6 months after 

the date of enactment of the Reform Act. 

Not later than 2 years after the date of enactment of this Act, 

the Commission would be required to submit to Congress a report 

on the degree of industry compliance, any enforcement actions 

brought by the Commission, and incidents involving children interacting with portable gasoline containers. 

Section 30. Toy Safety Standard. 

Beginning 60 days after the date of enactment of the Act, S. 2045 

would establish the ASTM 963-07 standard for toy safety as a consumer product safety rule issued by the Commission. If ASTM 

International proposes to revise the toy safety standard, it would 

be required to notify the Commission of the proposed revision and 

the proposed revision would be incorporated in the consumer product safety rule, unless the Commission determines that the revised 

standard would not improve the safety of the consumer product 

covered. If the Commission so notifies ASTM-International with respect to a proposed revision, the existing standard would continue 

to be considered a consumer product safety rule. 

Section 31. All-Terrain Vehicle Safety Standard. 

Within 90 days after the date of enactment, the Commission 

would be required to publish in the Federal Register as a consumer 

product safety standard the Specialty Vehicle Institute of America, 

ANSI/SVIA–1–2007. The standard would take effect 150 days after 

it is published. If ANSI/SVIA–1–2007 is revised, the Commission 

would be required to conduct a rulemaking, within 180 days, to 

amend the product safety standard for ATVs to include any such 

provision that the Commission determines is reasonably related to 

the safe performance of ATVs. The Commission also would have 

the authority to include any additional provisions that the Commission determines is reasonably necessary to reduce an unreasonable 

risk of injury associated with ATVs. 

After the standard takes effect, it would be unlawful for any 

manufacturer or distributor to import into or distribute in commerce any newly assembled or unassembled ATV unless the vehicle 

complies with each applicable provision of the standard and is subject to or complying with an applicable ATV action plan filed with 

the Commission. Failure to comply with any ATV standard would 

be deemed a failure to comply with a consumer product safety rule 

and would be subject to all of the penalties and remedies available 

under the CPSA. 

The section also would ban the import and distribution of 3- 

wheeled ATVs until a mandatory consumer product safety rule 

with respect to such vehicles is in effect. 

Finally, the section requires that the Commission issue a final 

rule in its proceeding entitled Standards for All-Terrain Vehicles 


wwoods2 on PRODPC68 with REPORTS
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and Ban of Three-Wheeled All-Terrain Vehicles. In the final rule, 

the Commission would have the authority to incorporate weight, 

the maximum speed of the vehicle, velocity, age and height of children into its analysis. 

The GAO would be required to conduct a study of the utility, recreational, and other benefits of ATVs, and the costs associated with 

ATV-related accidents and injuries. 

Section 32. Garage Door Opener Standard. 

The Reform Act would require that all automatic garage door 

openers that directly drive the door in the closing direction that are 

manufactured more than 6 months after the date of enactment include an external secondary entrapment protection device that does 

not require contact with the person or object for the door to reverse. 

Section 33. Reducing Deaths and Injuries from Carbon Monoxide 

Poisoning. 

S. 2045 would require the Commission to issue a final rule in its 

proceeding entitled Portable Generators for which the Commission 

issued an advance notice of proposed rulemaking on December 12, 

2006, no later than 18 months after the date of enactment of this 

Act. No later than 120 days after the date of enactment of this Act, 

the Commission would be required to submit a report that reviews 

the effectiveness of its labeling requirements for its charcoal briquettes during the windstorm that struck the Pacific Northwest on 

December 14, 2006, identifies any specific challenges faced by nonEnglish speaking populations with use of the current standards, 

and contains recommendations for improving the labels on charcoal 

briquettes. 

Section 34. Completion of the Cigarette Lighter Rulemaking. 

S. 2045 would require the Commission to issue a final rule mandating general safety standards for cigarette lighters in its proceeding entitled Safety Standard for Cigarette Lighters for which 

the Commission issued an advance notice of proposed rulemaking 

on April 11, 2005, no later than 24 months after the date of enactment of this Act. 

Section 35. Consumer Product Registration Forms. 

No later than one year after the date of enactment, S. 2045 

would require the Commission to promulgate consumer product 

safety rules that require manufacturers of durable infant or toddlers’ products to provide consumers with postage-paid registration 

forms. Manufacturers would be required to maintain a record of 

the names, addresses, e-mail addresses, and other contact information of consumers who register their ownership of such products in 

order to improve the effectiveness of campaigns to recall such products and to place permanently the manufacturer name, contact information, model name and number, and the date of manufacture, 

on each durable infant or toddler product. 

The registration forms would be required to provide space sufficiently large to permit easy, legible recording of the following information: the consumer’s name, the consumer’s telephone number, 

the consumer’s postal address, the consumer’s e-mail address, the 


wwoods2 on PRODPC68 with REPORTS
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manufacturer’s name, the model name and number for the product, 

the date of manufacture of the product, a message that explains 

the purpose of the registration and is designed to encourage consumers to complete the registration, a statement that information 

provided by the consumer would not be used for any other purpose 

other than to facilitate a recall of or a safety alert regarding that 

product, and a message that explains the option to register via the 

Internet. Such form would be required to be attached to the surface 

of the product so that, as a practical matter, the consumer will notice and handle the form after purchasing the product. The Commission would have the authority to prescribe the exact text and 

format of such registration forms. 

Manufacturers would be required to maintain the records for a 

period of not less than 6 years after the date of manufacture of the 

product concerned. It would be unlawful for a manufacturer to disseminate to any other party the information collected by the manufacturer for any purpose other than notification to the consumer 

concerned in the event of a product recall or safety alert. Nothing 

in this section requires a manufacturer to collect, retain, or use any 

information unless it is provided by the consumer. 

Not later than four years after the date of enactment, the Commission would be required to conduct a study on the effectiveness 

of the consumer product registration forms in facilitating product 

recalls and submit to Congress a report on its findings. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman): 

CONSUMER PRODUCT SAFETY ACT 

PRODUCT SAFETY INFORMATION AND RESEARCH

[15 U.S.C. 2054] 

SEC. 5. (a) The Commission shall—

(1) maintain an Injury Information Clearinghouse to collect, 

investigate, analyze, and disseminate injury data, and information, relating to the causes and prevention of death, injury, and 

illness associated with consumer products; 

(2) conduct such continuing studies and investigations of 

deaths, injuries, diseases, other health impairments, and economic losses resulting from accidents involving consumer products as it deems necessary; 

(3) following publication of øan advance notice of proposed 

rulemaking or¿ a notice of proposed rulemaking for a product 

safety rule under any rulemaking authority administered by 

the Commission, assist public and private organizations or 

groups of manufacturers, administratively and technically, in 

the development of safety standards addressing the risk of injury identified in such notice; and 

(4) to the extent practicable and appropriate (taking into account the resources and priorities of the Commission), assist 


wwoods2 on PRODPC68 with REPORTS
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public and private organizations or groups of manufacturers, 

administratively and technically, in the development or product safety standards and test methods. 

(b) The Commission may— (1) conduct research, studies, and investigations on the safety of consumer products and on improving the safety of such 

products; 

(2) test consumer products and develop product safety test 

methods and testing devices; and 

(3) offer training in product safety investigation and test 

methods. 

(c) In carrying out its functions under this section, the Commission may make grants or enter into contracts for the conduct of 

such functions with any person (including a governmental entity). 

(d) Whenever the Federal contribution for any information, research, or development activity authorized by this Act is more than 

minimal, the Commission shall include in any contract, grant, or 

other arrangement for such activity, provisions effective to insure 

that the rights to all information, uses, processes, patents, and 

other developments resulting from that activity will be made available to the public without charge on a nonexclusive basis. Nothing 

in this subsection shall be construed to deprive any person of any 

right which he may have had, prior to entering into any arrangement referred to in this subsection, to any patent, patent application, or invention. 

PUBLIC DISCLOSURE OF INFORMATION

[15 U.S.C. 2055] 

SEC. 6. (a)(1) Nothing contained in this Act shall be construed to 

require the release of any information described by subsection (b) 

of section 552 of title 5, United States Code, or which is otherwise 

protected by law from disclosure to the public. 

(2) All information reported to or otherwise obtained by the Commission or its representative under this Act which information contains or relates to a trade secret or other matter referred to in section 1905 of title 18, United States Code, or subject to section 

552(b)(4) of title 5, United States Code, shall be considered confidential and shall not be disclosed. 

(3) The Commission shall, prior to the disclosure of any information which will permit the public to ascertain readily the identity 

of a manufacturer or private labeler of a consumer product, offer 

such manufacturer or private labeler an opportunity to mark such 

information as confidential and therefore barred from disclosure 

under paragraph (2). A manufacturer or private labeler shall submit any such mark within 15 calendar days after the date on which 

it receives the Commission’s offer. 

(4) All information that a manufacturer or private labeler has 

marked to be confidential and barred from disclosure under paragraph (2), either at the time of submission or pursuant to paragraph (3), shall not be disclosed, except in accordance with the procedures established in paragraphs (5) and (6). 

(5) If the Commission determines that a document marked as 

confidential by a manufacturer or private labeler to be barred from 

disclosure under paragraph (2) may be disclosed because it is not 

confidential information as provided in paragraph (2), the CommisVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00046 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
45 

sion shall notify such person in writing that the Commission intends to disclose such document at a date not less than 10 days 

after the date of receipt of notification. 

ø(6) Any person receiving such notification may, if he believes 

such disclosure is barred by paragraph (2), before the date set for 

release of the document, bring an action in the district court of the 

United States in the district in which the complainant resides, or 

has his principal place of business, or in which the documents are 

located, or in the United States District Court for the District of 

Columbia to restrain disclosure of the document. Any person receiving such notification may file with the appropriate district 

court or court of appeals of the United States, as appropriate, an 

application for a stay of disclosure. The documents shall not be disclosed until the court has ruled on the application for a stay.¿ 

(6) If a manufacturer or private labeler receives a notification 

from the Commission under paragraph (5) of the Commission’s intent to disclose a document marked as confidential by that manufacturer or private labeler, it may appeal the determination of the 

Commission under paragraph (5) with respect to that document. 

The appeal shall be made in writing to the general counsel of the 

Commission before the date set for release of the document and set 

forth the reason the manufacturer or private labeler believes disclosure of the document is barred by paragraph (2). The general counsel shall act on the appeal within 30 days after receiving it. If the 

general counsel determines that disclosure of the document is not 

barred by paragraph (2), the manufacturer or private labeler may 

appeal the determination of the general counsel to the full Commission, which shall decide within 15 days after receiving it whether 

the determination of the general counsel is supported by the law 

and the evidence. The document may not be disclosed during the 

pendency of an appeal under this paragraph. 

(7) Nothing in this Act shall authorize the withholding of information by the Commission or any officer or employee under its control from the duly authorized committees or subcommittees of the 

Congress, and the provisions of paragraphs (2) through (6) shall 

not apply to such disclosures, except that the Commission shall immediately notify the manufacturer or private labeler of any such 

request for information designated as confidential by the manufacturer or private labeler. 

(8) The provisions of paragraphs (2) through (6) shall not prohibit 

the disclosure of information to other officers, employees, or representatives of the Commission (including contractors) concerned 

with carrying out this Act or when relevant in any administrative 

proceeding under this Act or in judicial proceedings to which the 

Commission is a party. Any disclosure of relevant information—

(A) in Commission administrative proceedings or in judicial 

proceedings to which the Commission is a party, or 

(B) to representatives of the Commission (including contractors), 

shall be governed by the rules of the Commission (including in 

camera review rules for confidential material) for such proceedings 

or for disclosures to such representatives or by court rules or orders, except that the rules of the Commission shall not be amended 

in a manner inconsistent with the purposes of this section. 


wwoods2 on PRODPC68 with REPORTS
46 

ø(b)(1) Except as provided by paragraph (4) of this subsection, 

not less than 30 days prior to its public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith (unless the Commission finds that the public 

health and safety requires a lesser period of notice and publishes 

such a finding in the Federal Register), the Commission shall, to 

the extent practicable, notify and provide a summary of the information to, each manufacturer or private labeler of any consumer 

product to which such information pertains, if the manner in which 

such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of 

such manufacturer or private labeler, and shall provide such manufacturer or private labeler with a reasonable opportunity to submit 

comments to the Commission in regard to such information. The 

Commission shall take reasonable steps to assure, prior to its public disclosure thereof, that information from which the identity of 

such manufacturer or private labeler may be readily ascertained is 

accurate, and that such disclosure is fair in the circumstances and 

reasonably related to effectuating the purposes of this Act. In disclosing any information under this subsection, the Commission 

may, and upon the request of the manufacturer or private labeler 

shall, include with the disclosure any comments or other information or a summary thereof submitted by such manufacturer or private labeler to the extent permitted by and subject to the requirements of this section. 

ø(2) If the Commission determines that a document claimed to 

be inaccurate by a manufacturer or private labeler under paragraph (1) should be disclosed because the Commission believes it 

has complied with paragraph (1), the Commission shall notify the 

manufacturer or private labeler that the Commission intends to 

disclose such document at a date not less than 10 days after the 

date of the receipt of notification. The Commission may provide a 

lesser period of notice of intent to disclose if the Commission finds 

that the public health and safety requires a lesser period of notice 

and publishes such finding in the Federal Register. 

ø(3) Prior to the date set for release of the document, the manufacturer or private labeler receiving the notice described in paragraph (2) may bring an action in the district court of the United 

States in the district in which the complainant resides, or has his 

principal place of business, or in which the documents are located 

or in the United States District Court for the District of Columbia 

to enjoin disclosure of the document. The district court may enjoin 

such disclosure if the Commission has failed to take the reasonable 

steps prescribed in paragraph (1). 

ø(4) Paragraphs (1) through (3) of this subsection shall not apply 

to the public disclosure of (A) information about any consumer 

product with respect to which product the Commission has filed an 

action under section 12 (relating to imminently hazardous products), or which the Commission has reasonable cause to believe is 

in violation of section 19 (relating to prohibited acts); or (B) information in the course of or concerning a rulemaking proceeding 

(which shall commence upon the publication of an advance notice 

of proposed rulemaking or a notice of proposed rulemaking), an adjudicatory proceeding (which shall commence upon the issuance of 


wwoods2 on PRODPC68 with REPORTS
47 

a complaint) or other administrative or judicial proceeding under 

this Act. 

ø(5) In addition to the requirements of paragraph (1), the Commission shall not disclose to the public information submitted pursuant to section 15(b) respecting a consumer product unless— ø(A) the Commission has issued a complaint under section 

15 (c) or (d) alleging that such product presents a substantial 

product hazard; 

ø(B) in lieu of proceeding against such product under section 

15 (c) or (d), the Commission has accepted in writing a remedial settlement agreement dealing with such product; or 

ø(C) the person who submitted the information under section 

15(b) agrees to its public disclosure. 

The provisions of this paragraph shall not apply to the public disclosure of information with respect to a consumer product which is 

the subject of an action brought under section 12, or which the 

Commission has reasonable cause to believe is in violation of section 19(a), or information in the course of or concerning a judicial 

proceeding. 

ø(6) Where the Commission initiates the public disclosure of information that reflects on the safety of a consumer product or class 

of consumer products, whether or not such information would enable the public to ascertain readily the identity of a manufacturer 

or private labeler, the Commission shall establish procedures designed to ensure that such information is accurate and not misleading. 

ø(7) If the Commission finds that, in the administration of this 

Act, it has made public disclosure of inaccurate or misleading information which reflects adversely upon the safety of any consumer 

product or class of consumer products, or the practices of any manufacturer, private labeler, distributor, or retailer of consumer products, it shall, in a manner equivalent to that in which such disclosure was made, take reasonable steps to publish a retraction of 

such inaccurate or misleading information. 

ø(8) If, after the commencement of a rulemaking or the initiation 

of an adjudicatory proceeding, the Commission decides to terminate 

the proceeding before taking final action, the Commission shall, in 

a manner equivalent to that in which such commencement or initiation was publicized, take reasonable steps to make known the decision to terminate.¿ 

(b)(1) Except as provided by paragraph (3) of this subsection, 

prior to its public disclosure of any information obtained under this 

Act, or to be disclosed to the public in connection therewith (unless 

the Commission finds that the public health and safety requires otherwise), the Commission shall, to the extent practicable, notify and 

provide a summary of the information to each manufacturer or private labeler of any consumer product to which such information pertains, if the manner in which such consumer product is to be designated or described in such information will permit the public to 

ascertain readily the identity of such manufacturer or private labeler, and shall provide such manufacturer or private labeler not less 

than 15 days to submit comments to the Commission as to the accuracy of such information. 

(2) In disclosing any information under this subsection, the Commission may, and upon the request of the manufacturer or private 


wwoods2 on PRODPC68 with REPORTS
48 

labeler shall, include with the disclosure any comments or other information or a summary thereof submitted under paragraph (1) by 

such manufacturer or private labeler as an addendum. 

(3) Paragraphs (1) and (2) of this subsection do not apply to the 

public disclosure of— (A) information about any consumer product— (i) with respect to which the Commission has filed an action under section 12; 

(ii) with respect to which the Commission has issued a 

complaint under section 15(c) or (d) alleging that such 

product presents a substantial product hazard; or 

(iii) which the Commission has reasonable cause to believe is in violation of any regulation promulgated by the 

Commission or any Act enforced by the Commission, or 

where the Commission determines that the public health or 

safety requires immediate disclosure or a substantial product hazard exists; 

(B) information in the course of, or concerning, a rulemaking 

proceeding (which shall commence upon the publication of an 

advance notice of proposed rulemaking or a notice of proposed 

rulemaking), an adjudicatory proceeding (which shall commence upon the issuance of a complaint), or other administrative or judicial proceeding under this Act. 

(4) If, after the commencement of a rulemaking or the initiation 

of an adjudicatory proceeding, the Commission decides to terminate 

the proceeding before taking final action, the Commission shall, in 

a manner equivalent to that in which such commencement or initiation was publicized, take reasonable steps to make known the decision to terminate. 

(5) The Commission may not disclose the names or addresses of 

consumers pursuant to its authority under this section unless the 

consumer consents in writing to the disclosure. 

(c) The Commission shall communicate to each manufacturer of 

a consumer product, insofar as may be practicable, information as 

to any significant risk of injury associated with such product. 

(d)(1) For purposes of this section, the term ‘‘Act’’ means the Consumer Product Safety Act, the Flammable Fabrics Act, the Poison 

Prevention Packaging Act, and the Federal Hazardous Substances 

Act. 

(2) The provisions of this section shall apply whenever information is to be disclosed by the Commission, any member of the Commission, or any employee, agent, or representative of the Commission in an official capacity. 

(e)(1) Notwithstanding the provisions of section 552 of title 5, 

United States Code, subsection (a)(7) of this section, or of any other 

law, except as provided in paragraphs (2), (3), and (4), no member 

of the Commission, no officer or employee of the Commission, and 

no officer or employee of the Department of Justice may—

(A) publicly disclose information furnished under subsection 

(c)(1) or (c)(2)(A) of section 37; 

(B) use such information for any purpose other than to carry 

out the Commission’s responsibilities; or 

(C) permit anyone (other than the members, officers, and 

employees of the Commission or officers or employees of the 

Department of Justice who require such information for an acVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00050 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
49 

tion filed on behalf of the Commission) to examine such information. 

(2) Any report furnished under subsection (c)(1) or (c)(2)(A) of 

section 37 shall be immune from legal process and shall not be subject to subpoena or other discovery in any civil action in a State 

or Federal court or in any administrative proceeding, except in an 

action against such manufacturer under section 20, 21, or 22 for 

failure to furnish information required by section 37. 

(3) The Commission may, upon written request, furnish to any 

manufacturer or to the authorized agent of such manufacturer authenticated copies of reports furnished by or on behalf of such manufacturer in accordance with section 37, upon payment of the actual or estimated cost of searching the records and furnishing such 

copies. 

(4) Upon written request of the Chairman or Ranking Minority 

Member of the Committee on Commerce, Science, and Transportation of the Senate or the Committee on Energy and Commerce 

of the House of Representatives or any subcommittee of such committee, the Commission shall provide to the Chairman or Ranking 

Minority Member any information furnished to the Commission 

under section 37 for purposes that are related to the jurisdiction 

of such committee or subcommittee. 

(5) Any officer or employee of the Commission or other officer or 

employee of the Federal Government who receives information provided under section 37, who willfully violates the requirements of 

this subsection shall be subject to dismissal or other appropriate 

disciplinary action consistent with procedures and requirements established by the Office of Personnel Management. 

PROCEDURE FOR CONSUMER PRODUCT SAFETY RULES

[15 U.S.C. 2058] 

SEC. 9. (a) A proceeding for the development of a consumer product safety rule øshall be commenced¿ may be commenced by the 

publication in the Federal Register of an advance notice of proposed rulemaking which shall—

(1) identify the product and the nature of the risk of injury 

associated with the product; 

(2) include a summary of each of the regulatory alternatives 

under consideration by the Commission (including voluntary 

consumer product safety standards); 

(3) include information with respect to any existing standard 

known to the Commission which may be relevant to the proceedings, together with a summary of the reasons why the 

Commission believes preliminarily that such standard does not 

eliminate or adequately reduce the risk of injury identified in 

paragraph (1); 

(4) invite interested persons to submit to the Commission, 

within such period as the Commission shall specify in the notice (which period shall not be less than 30 days or more than 

60 days after the date of publication of the notice), comments 

with respect to the risk of injury identified by the Commission, 

the regulatory alternatives being considered, and other possible alternatives for addressing the risk; 

(5) invite any person (other than the Commission) to submit 

to the Commission, within such period as the Commission shall 


wwoods2 on PRODPC68 with REPORTS
50 

specify in the notice (which period shall not be less than 30 

days after the date of publication of the notice), an existing 

standard or a portion of a standard as a proposed consumer 

product safety standard; and 

(6) invite any person (other than the Commission) to submit 

to the Commission, within such period as the Commission shall 

specify in the notice (which period shall not be less than 30 

days after the date of publication of the notice), a statement of 

intention to modify or develop a voluntary consumer product 

safety standard to address the risk of injury identified in paragraph (1) together with a description of a plan to modify or develop the standard. 

The Commission shall transmit such notice within 10 calendar 

days to the Committee on Commerce, Science, and Transportation 

of the Senate and the Committee on Energy and Commerce of the 

House of Representatives. 

(b)(1) If the Commission determines that any standard submitted 

to it in response to an invitation in a notice published under subsection (a)(5) if promulgated (in whole, in part, or in combination 

with any other standard submitted to the Commission or any part 

of such a standard) as a consumer product safety standard, would 

eliminate or adequately reduce the risk of the injury identified øin 

the notice¿ in a notice under subsection (a)(1), the Commission may 

publish such standard, in whole, in part, or in such combination 

and with nonmaterial modifications, as a proposed consumer product safety rule. 

(2) If the Commission determines that— (A) compliance with any standard submitted to it in response 

to an invitation in a notice published under subsection (a)(6) 

is likely to result in the elimination or adequate reduction of 

the risk of injury identified in the notice, and 

(B) it is likely that there will be substantial compliance with 

such standard, 

the Commission shall terminate any proceeding to promulgate a 

consumer product safety rule respecting such risk of injury and 

shall publish in the Federal Register a notice which includes the 

determination of the Commission and which notifies the public that 

the Commission will rely on the voluntary standard to eliminate or 

reduce the risk of injury, except that the Commission shall terminate any such proceeding and rely on a voluntary standard only if 

such voluntary standard is in existence. For purposes of this section, a voluntary standard shall be considered to be in existence 

when it is finally approved by the organization or other person 

which developed such standard, irrespective of the effective date of 

the standard. Before relying upon any voluntary consumer product 

safety standard, the Commission shall afford interested persons 

(including manufacturers, consumers, and consumer organizations) 

a reasonable opportunity to submit written comments regarding 

such standard. The Commission shall consider such comments in 

making any determination regarding reliance on the involved voluntary standard under this subsection. 

(c) No consumer product safety rule may be proposed by the 

Commission øunless, not less than 60 days after publication of the 

notice required in subsection (a), the¿ unless the Commission publishes in the Federal Register the text of the proposed rule, includVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00052 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
51 

ing any alternatives, which the Commission proposes to promulgate, together with a preliminary regulatory analysis containing— (1) a preliminary description of the potential benefits and potential costs of the proposed rule, including any benefits or 

costs that cannot be quantified in monetary terms, and an 

identification of those likely to receive the benefits and bear 

the costs; 

(2) a discussion of the reasons any standard or portion of a 

standard submitted to the Commission under subsection (a)(5) 

was not published by the Commission as the proposed rule or 

part of the proposed rule; 

(3) a discussion of the reasons for the Commission’s preliminary determination that efforts proposed under subsection 

(a)(6) and assisted by the Commission as required by section 

5(a)(3) would not, within a reasonable period of time, be likely 

to result in the development of a voluntary consumer product 

safety standard that would eliminate or adequately reduce the 

risk of injury addressed by the proposed rule; and 

(4) a description of any reasonable alternatives to the proposed rule, together with a summary description of their potential costs and benefits, and a brief explanation of why such alternatives should not be published as a proposed rule. 

The Commission shall transmit such notice within 10 calendar 

days to the Committee on Commerce, Science, and Transportation 

of the Senate and the Committee on Energy and Commerce of the 

House of Representatives. Any proposed consumer product safety 

rule shall be issued within twelve months after the date of publication of øan advance notice of proposed rulemaking under subsection 

(a) relating to the product involved,¿ the notice unless the Commission determines that such proposed rule is not reasonably necessary to eliminate or reduce the risk of injury associated with the 

product or is not in the public interest. The Commission may extend the twelve-month period for good cause. If the Commission extends such period, it shall immediately transmit notice of such extension to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce 

of the House of Representatives. Such notice shall include an explanation of the reasons for such extension, together with an estimate 

of the date by which the Commission anticipates such rulemaking 

will be completed. The Commission shall publish notice of such extension and the information submitted to the Congress in the Federal Register. 

(d)(1) Within 60 days after the publication under subsection (c) 

of a proposed consumer product safety rule respecting a risk of injury associated with a consumer product, the Commission shall—

(A) promulgate a consumer product safety rule respecting 

the risk of injury associated with such product, if it makes the 

findings required under subsection (f), or 

(B) withdraw the applicable notice of proposed rulemaking if 

it determines that such rule is not (i) reasonably necessary to 

eliminate or reduce an unreasonable risk of injury associated 

with the product, or (ii) in the public interest; 

except that the Commission may extend such 60-day period for 

good cause shown (if it publishes its reasons therefor in the Federal 

Register). 


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52 

(2) Consumer product safety rules shall be promulgated in accordance with section 553 of title 5, United States Code, except 

that the Commission shall give interested persons an opportunity 

for the oral presentation of data, views, or arguments, in addition 

to an opportunity to make written submissions. A transcript shall 

be kept of any oral presentation. 

(e) A consumer product safety rule shall express in the rule itself 

the risk of injury which the standard is designed to eliminate or 

reduce. In promulgating such a rule the Commission shall consider 

relevant available product data including the results of research, 

development, testing, and investigation activities conducted generally and pursuant to this Act. In the promulgation of such a rule 

the Commission shall also consider and take into account the special needs of elderly and handicapped persons to determine the extent to which such persons may be adversely affected by such rule. 

(f)(1) Prior to promulgating a consumer product safety rule, the 

Commission shall consider, and shall make appropriate findings for 

inclusion in such rule with respect to— (A) the degree and nature of the risk of injury the rule is designed to eliminate or reduce; 

(B) the approximate number of consumer products, or types 

or classes thereof, subject to such rule; 

(C) the need of the public for the consumer products subject 

to such rule, and the probable effect of such rule upon the utility, cost, or availability of such products to meet such need; 

and 

(D) any means of achieving the objective of the order while 

minimizing adverse effects on competition or disruption or dislocation of manufacturing and other commercial practices consistent with the public health and safety. 

(2) The Commission shall not promulgate a consumer product 

safety rule unless it has prepared, on the basis of the findings of 

the Commission under paragraph (1) and on other information before the Commission, a final regulatory analysis of the rule containing the following information: 

(A) A description of the potential benefits and potential costs 

of the rule, including costs and benefits that cannot be quantified in monetary terms, and the identification of those likely 

to receive the benefits and bear the costs. 

(B) A description of any alternatives to the final rule which 

were considered by the Commission, together with a summary 

description of their potential benefits and costs and a brief explanation of the reasons why these alternatives were not chosen. 

(C) A summary of any significant issues raised by the comments submitted during the public comment period in response 

to the preliminary regulatory analysis, and a summary of the 

assessment by the Commission of such issues. 

The Commission shall publish its final regulatory analysis with the 

rule. 

(3) The Commission shall not promulgate a consumer product 

safety rule unless it finds (and includes such finding in the rule)—

(A) that the rule (including its effective date) is reasonably 

necessary to eliminate or reduce an unreasonable risk of injury 

associated with such product; 


wwoods2 on PRODPC68 with REPORTS
53 

(B) that the promulgation of the rule is in the public interest; 

(C) in the case of a rule declaring the product a banned hazardous product, that no feasible consumer product safety 

standard under this Act would adequately protect the public 

from the unreasonable risk of injury associated with such product; 

(D) in the case of a rule which relates to a risk of injury with 

respect to which persons who would be subject to such rule 

have adopted and implemented a voluntary consumer product 

safety standard, that—

(i) compliance with such voluntary consumer product 

safety standard is not likely to result in the elimination or 

adequate reduction of such risk of injury; or 

(ii) it is unlikely that there will be substantial compliance with such voluntary consumer product safety standard; 

(E) that the benefits expected from the rule bear a reasonable relationship to its costs; and 

(F) that the rule imposes the least burdensome requirement 

which prevents or adequately reduces the risk of injury for 

which the rule is being promulgated. 

(4)(A) Any preliminary or final regulatory analysis prepared 

under subsection (c) or (f)(2) shall not be subject to independent judicial review, except that when an action for judicial review of a 

rule is instituted, the contents of any such regulatory analysis shall 

constitute part of the whole rulemaking record of agency action in 

connection with such review. 

(B) The provisions of subparagraph (A) shall not be construed to 

alter the substantive or procedural standards otherwise applicable 

to judicial review of any action by the Commission. 

(g)(1) Each consumer product safety rule shall specify the date 

such rule is to take effect not exceeding 180 days from the date 

promulgated, unless the Commission finds, for good cause shown, 

that a later effective date is in the public interest and publishes its 

reasons for such finding. The effective date of a consumer product 

safety standard under this Act shall be set at a date at least 30 

days after the date of promulgation unless the Commission for good 

cause shown determines that an earlier effective date is in the public interest. In no case may the effective date be set at a date which 

is earlier than the date of promulgation. A consumer product safety 

standard shall be applicable only to consumer products manufactured after the effective date. 

(2) The Commission may by rule prohibit a manufacturer of a 

consumer product from stockpiling any product to which a consumer product safety rule applies, or to which a rule under any 

other law enforced by the Commission applies, so as to prevent such 

manufacturer from circumventing the purpose of such øconsumer 

product safety¿ rule. For purposes of this paragraph, the term 

‘‘stockpiling’’ means manufacturing or importing a product between 

the date of promulgation of such øconsumer product safety¿ rule 

and its effective date at a rate which is significantly greater (as determined under the rule under this paragraph) than the rate at 

which such product was produced or imported during a base period 


wwoods2 on PRODPC68 with REPORTS
54 

(prescribed in the rule under this paragraph) ending before the 

date of promulgation of the øconsumer product safety¿ rule. 

(h) The Commission may by rule amend or revoke any consumer 

product safety rule. Such amendment or revocation shall specify 

the date on which it is to take effect which shall not exceed 180 

days from the date the amendment or revocation is published unless the Commission finds for good cause shown that a later effective date is in the public interest and publishes its reasons for such 

finding. Where an amendment involves a material change in a consumer product safety rule, sections 7 and 8, and subsections (a) 

through (g) of this section shall apply. In order to revoke a consumer product safety rule, the Commission shall publish a proposal 

to revoke such rule in the Federal Register, and allow oral and 

written presentations in accordance with subsection (d)(2) of this 

section. It may revoke such rule only if it determines that the rule 

is not reasonably necessary to eliminate or reduce an unreasonable 

risk of injury associated with the product. Section 11 shall apply 

to any amendment of a consumer product safety rule which involves a material change and to any revocation of a consumer product safety rule, in the same manner and to the same extent as such 

section applies to the Commission’s action in promulgating such a 

rule. 

(i) The Commission shall grant, in whole or in part, or deny any 

petition under section 553(e) of title 5, United States Code, requesting the Commission to initiate a rulemaking, within a reasonable 

time after the date on which such petition is filed. The Commission 

shall state the reasons for granting or denying such petition. The 

Commission may not deny any such petition on the basis of a voluntary standard unless the voluntary standard is in existence at 

the time of the denial of the petition, the Commission has determined that the voluntary standard is likely to result in the elimination or adequate reduction of the risk of injury identified in the 

petition, and it is likely that there will be substantial compliance 

with the standard. 

PRODUCT CERTIFICATION AND LABELING

[15 U.S.C. 2063] 

SEC. 14. (a)(1) øEvery manufacturer¿ Except as provided in paragraph (2), every manufacturer of a product which is subject to a 

consumer product safety standard under this Act and which is distributed in commerce (and the private labeler of such product if it 

bears a private label) shall issue a certificate which shall certify 

that such product conforms to all applicable consumer product safety standards, and shall specify any standard which is applicable. 

(2) Every manufacturer of a children’s product (and the private 

labeler of such product if it bears a private label) which is subject 

to a consumer product safety standard under this Act, or a rule 

under this or any other Act enforced by the Commission declaring 

a consumer product a banned hazardous product, shall—

(A) have the product tested by a third party laboratory qualified to perform such tests or testing programs; and 

(B) issue a certification which shall—

(i) certify that such product conforms to such consumer 

product safety standard or is not a banned hazardous 

product under such rule; and 


wwoods2 on PRODPC68 with REPORTS
55 

(ii) specify the applicable consumer product safety standard or rule. 

(3) øSuch certificate shall¿ A certificate required under this subsection shall accompany the product or shall otherwise be furnished 

to any distributor or retailer to whom the product is delivered. 

(4) Any certificate under this subsection shall be based on a test 

of each product or upon a reasonable testing program; shall state 

the name of the manufacturer or private labeler issuing the certificate; and shall include the date and place of manufacture. 

ø(2)¿ (5) In the case of a consumer product for which there is 

more than one manufacturer or more than one private labeler, the 

Commission may by rule designate one or more of such manufacturers or one or more of such private labelers (as the case may be) 

as the persons who shall issue the certificate ørequired by paragraph (1) of this subsection,¿ required by paragraph (1) or (2) (as 

the case may be), and may exempt all other manufacturers of such 

product or all other private labelers of the product (as the case may 

be) from the ørequirement under paragraph (1)¿ requirement under 

paragraph (1) or (2) (as the case may be) to issue a certificate with 

respect to such product. 

(6) The manufacturer of a children’s product or other consumer 

product (as may be required by the Commission in its discretion 

after a rulemaking proceeding) shall place distinguishing marks on 

the product and its packaging, to the extent practicable, that will 

enable the ultimate purchaser to ascertain the source, date, and cohort (including the batch, run number, or other identifying characteristic) of production of the product by reference to those marks. 

(b)(1) The Commission may by rule prescribe reasonable testing 

programs for consumer products which are subject to consumer 

product safety standards under this Act and for which a certificate 

is required under subsection (a). 

(2) øAny test or¿ Except as provided in subsection (a)(2), any test 

or testing program on the basis of which a certificate is issued 

under subsection (a) may, at the option of the person required to 

certify the product, be conducted by an independent third party 

qualified to perform such tests or testing programs. 

ø(c) The¿ (c)(1) The Commission may by rule require the use and 

prescribe the form and content of labels which contain the following information (or that portion of it specified in the ørule)—¿ 

rule): 

ø(1)¿ (A) The date and place of manufacture of any consumer 

product. 

ø(2)¿ (B) A suitable identification of the manufacturer of the 

consumer product, unless the product bears a private label in 

which case it shall identify the private labeler and shall also 

contain a code mark which will permit the seller of such product to identify the manufacturer thereof to the purchaser upon 

his request. 

ø(3)¿ (C) In the case of a consumer product subject to a consumer product safety rule, a certification that the product 

meets all applicable consumer product safety standards and a 

specification of the standards which are applicable. 

(2) Such labels, where practicable, may be required by the Commission to be permanently marked on or affixed to any such consumer product. The Commission may, in appropriate cases, permit 


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56 

information required under paragraphs (1) and (2) of this subsection to be coded. 

(4) If an advertisement, label, or package contains a reference to 

a consumer product safety standard, a statement with respect to 

whether the product meets all requirements of that standard. 

(d) APPLICATION TO OTHER CONSUMER PRODUCTS; CERTIFIER

STANDARDS; AUDIT.— (1) IN GENERAL.—The Commission— (A) within 1 year after the date of enactment of the CPSC 

Reform Act of 2007 shall by rule— (i) establish protocols and standards— (I) for acceptance of certification or continuing 

guarantees of compliance by manufacturers under 

this section; and 

(II) for verifying that products tested by third 

party laboratories comply with applicable standards under this Act and other Acts enforced by the 

Commission; 

(ii) prescribe standards for accreditation of third 

party laboratories, either by the Commission or by 1 or 

more independent standard-setting organizations to 

which the Commission delegates authority, to engage 

in certifying compliance under subsection (a)(2) for 

children’s products or products to which the Commission extends the certification requirements of that subsection; 

(iii) establish requirements, or delegate authority to 

1 or more independent standard-setting organizations, 

for third party laboratory testing, as the Commission 

determines to be necessary to ensure compliance with 

any applicable rule or order, of random samples of 

products certified under this section to determine 

whether they meet the requirements for certification; 

(iv) establish requirements for periodic audits of 

third party laboratories by an independent standardsetting organization as a condition for accreditation of 

such laboratories under this section; and 

(v) establish a program by which manufacturers may 

label products as compliant with the certification requirements of subsection (a)(2); and 

(B) may by rule extend the certification requirements of 

subsection (a)(2) to other consumer products or to classes or 

categories of consumer products; 

(2) INTERIM PROCEDURE.—Within 30 days after the date of 

enactment of the CPSC Reform Act of 2007, the Commission 

shall—

(A) consider existing laboratory testing certification procedures established by independent standard-setting organizations; and 

(B) designate an existing procedure for manufacturers of 

children’s products to follow until the Commission issues a 

final rule under paragraph (1)(A). 

(e) DEFINITIONS.—In this section: 

(1) CHILDREN’S PRODUCT.—The term ‘‘children’s product’’

means a product (other than a medication, drug, or food) deVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00058 Fmt 6659 Sfmt 6603 E:\HR\OC\SR265.XXX SR265

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57 

signed or intended for use by, or care of, a child 7 years of age 

or younger that is introduced into the interstate stream of commerce. In determining whether a product is intended for use by 

a child 7 years of age or younger, the following factors shall be 

considered: 

(A) A statement by a manufacturer about the intended 

use of such product, including a label on such product, if 

such statement is reasonable. 

(B) The context and manner of the advertising, promotion, and marketing associated with the product. 

(C) Whether the product is commonly recognized by consumers as being intended for use by a child 7 years of age 

or younger. 

(D) The Age Determination Guideline issued by the Consumer Product Safety Commission in September 2002 and 

any subsequent version of such Guideline. 

(2) THIRD PARTY LABORATORY.—

(A) IN GENERAL.—The term ‘‘third party laboratory’’

means a testing entity that—

(i) is designated by the Commission, or by an independent standard-setting organization to which the 

Commission delegates the authority to make such a 

designation, as a testing laboratory that is competent 

to test products for compliance with applicable safety 

standards under this Act and other Acts enforced by 

the Commission; and 

(ii) except as provided in subparagraph (B), is a nongovernmental entity that is not owned, managed, controlled, or directed by the manufacturer or private labeler. 

(B) EXCEPTION FOR PROPRIETARY LABORATORIES.—Upon 

request, the Commission may certify a laboratory that is 

owned, managed, controlled, or directed by the manufacturer or private labeler as a third party laboratory if the 

Commission—

(i) finds that certification of the laboratory would 

provide equal or greater consumer safety protection 

than the manufacturer’s use of an independent third 

party laboratory; 

(ii) establishes procedures to ensure that the laboratory is protected from undue influence, including pressure to modify or hide test results, by the manufacturer 

or private labeler; and 

(iii) establishes procedures for confidential reporting 

of allegations of undue influence to the Commission. 

(C) DECERTIFICATION.—The Commission, or an independent standard-setting organization to which the Commission has delegated such authority, may decertify a third 

party laboratory if it finds, after notice and investigation, 

that a manufacturer or private labeler has exerted undue 

influence on the laboratory. 


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58 

NOTIFICATION AND REPAIR, REPLACEMENT, OR REFUND

[15 U.S.C. 2064] 

SEC. 15. (a) For purposes of this section, the term ‘‘substantial 

product hazard’’ means—

(1) a failure to comply with an applicable consumer product 

safety rule which creates a substantial risk of injury to the 

public, or 

(2) a product defect which (because of the pattern of defect, 

the number of defective products distributed in commerce, the 

severity of the risk, or otherwise) creates a substantial risk of 

injury to the public. 

(b) Every manufacturer of a øconsumer product distributed in 

commerce,¿ consumer product (or other product or substance over 

which the Commission has jurisdiction under this or any other Act) 

distributed in commerce, and every distributor and retailer of such 

product, who obtains information which reasonably supports the 

conclusion that such product—

(1) fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard 

upon which the Commission has relied under section 9; 

(2) fails to comply with any rule or standard promulgated by 

the Commission under this or any other Act; 

ø(2)¿ (3) contains a defect which could create a substantial 

product hazard described in subsection (a)(2); or 

ø(3)¿ (4) creates an unreasonable risk of serious injury or 

death, 

shall immediately inform the Commission of such failure to comply, 

of such defect, or of such risk, unless such manufacturer, distributor, or retailer has actual knowledge that the Commission has 

been adequately informed of such defect, failure to comply, or such 

risk. 

(c) If the Commission determines (after affording interested persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (f) of this section) that a product distributed in commerce presents a substantial 

product hazard and that notification is required in order to adequately protect the public from such substantial product hazard, 

the Commission may order the manufacturer or any distributor or 

retailer of the product to take any one or more of the following actions: 

(1) To give public notice of the defect or failure to comply. 

(2) To mail notice to each person who is a manufacturer, distributor, or retailer of such product. 

(3) To mail notice to every person to whom the person required to give notice knows such product was delivered or sold. 

Any such order shall specify the form and content of any notice required to be given under such order. 

(d)(1) If the Commission determines (after affording interested 

parties, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (f)) that a 

product distributed in commerce presents a substantial product 

hazard and that action under this subsection is in the public interest, it may order the manufacturer or any distributor or retailer of 

such product to take øwhichever of the following actions the person 


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59 

to whom the order is directed elects:¿ any one or more of the following actions it determines to be in the public interest: 

ø(1)¿ (A) To bring such product into conformity with the requirements of the applicable consumer product safety rule or 

to repair the defect in such product. 

ø(2)¿ (B) To replace such product with a like or equivalent 

product which complies with the applicable consumer product 

safety rule or which does not contain the defect. 

ø(3)¿ (C) To refund the purchase price of such product (less 

a reasonable allowance for use, if such product has been in the 

possession of a consumer for one year or ømore (A)¿ more (i) 

at the time of public notice under subsection (c), øor (B)¿ or (ii) 

at the time the consumer receives actual notice of the defect 

or noncompliance, whichever first occurs). 

(2) An order under this subsection may also require the person 

to whom it applies to submit a plan, øsatisfactory to the Commission,¿ for approval by the Commission, for taking action under 

whichever of the preceding paragraphs of this subsection under 

which such person has elected to act. The Commission shall specify 

in the order the persons to whom refunds must be made if the person to whom the order is directed elects to take the action ødescribed in paragraph (3).¿ described in paragraph (1)(C). If an 

order under this subsection is directed to more than one person, 

the Commission shall specify which person has the election under 

this subsection. An order under this subsection may prohibit the 

person to whom it applies from manufacturing for sale, offering for 

sale, distributing in commerce, or importing into the customs territory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any 

combination of such actions, the product with respect to which the 

order was issued. 

(3)(A) If the Commission approves an action plan, it shall indicate its approval in writing. 

(B) If the Commission finds that an approved action plan is not 

effective, or that the manufacturer, retailer, or distributor is not executing an approved action plan effectively, the Commission may by 

order amend, or require amendment of, the action plan. 

(C) If the Commission determines, after notice and opportunity for 

comment, that a manufacturer, retailer, or distributor has failed to 

comply substantially with its obligations under its action plan, the 

Commission may revoke its approval of the action plan. The manufacturer, retailer, or distributor to which the action plan applies 

may not distribute the product to which the action plan relates in 

commerce after receipt of notice of a revocation of the action plan. 

(e)(1) No charge shall be made to any person (other than a manufacturer, distributor, or retailer) who avails himself of any remedy 

provided under an order issued under subsection (d), and the person subject to the order shall reimburse each person (other than a 

manufacturer, distributor, or retailer) who is entitled to such a 

remedy for any reasonable and foreseeable expenses incurred by 

such person in availing himself of such remedy. 

(2) An order issued under subsection (c) or (d) with respect to a 

product may require any person who is a manufacturer, distributor, or retailer of the product to reimburse any other person 

who is a manufacturer, distributor, or retailer of such product for 


wwoods2 on PRODPC68 with REPORTS
60 

such other person’s expenses in connection with carrying out the 

order, if the Commission determines such reimbursement to be in 

the public interest. 

(f) An order under subsection (c) or (d) may be issued only after 

an opportunity for a hearing in accordance with section 554 of title 

5, United States Code, except that, if the Commission determines 

that any person who wishes to participate in such hearing is a part 

of a class of participants who share an identity of interest, the 

Commission may limit such person’s participation in such hearing 

to participation through a single representative designated by such 

class (or by the Commission if such class fails to designate such a 

representative). Any settlement offer which is submitted to the presiding officer at a hearing under this subsection shall be transmitted by the officer to the Commission for its consideration unless 

the settlement offer is clearly frivolous or duplicative of offers previously made. 

(g)(1) If the Commission has initiated a proceeding under this 

section for the issuance of an order under subsection (d) with respect to a product which the Commission has reason to believe presents a substantial product hazard, the Commission (without regard to section 27(b)(7)), or the Attorney General may, in accordance with 12(d)(1), apply to a district court of the United States for 

the issuance of a preliminary injunction to restrain the distribution 

in commerce of such product pending the completion of such proceeding. If such a preliminary injunction has been issued, the Commission (or the Attorney General if the preliminary injunction was 

issued upon an application of the Attorney General) may apply to 

the issuing court for extensions of such preliminary injunction. 

(2) Any preliminary injunction, and any extension of a preliminary injunction, issued under this subsection with respect to a 

product shall be in effect for such period as the issuing court prescribes not to exceed a period which extends beyond the thirtieth 

day from the date of the issuance of the preliminary injunction (or, 

in the case of a preliminary injunction which has been extended, 

the date of its extension) or the date of the completion or termination of the proceeding under this section respecting such product, 

whichever date occurs first. 

(3) The amount in controversy requirement of section 1331 of 

title 28, United States Code, does not apply with respect to the jurisdiction of a district court of the United States to issue or extend 

a preliminary injunction under this subsection. 

(h) Nothing in this section shall be construed to require the Commission, in determining that a product distributed in commerce 

presents a substantial product hazard and that notification or 

other action under this section should be taken, to prepare a comparison of the costs that would be incurred in providing notification 

or taking other action under this section with the benefits from 

such notification or action. 

INSPECTION AND RECORDKEEPING

[15 U.S.C. 2065] 

SEC. 16. (a) For purposes of implementing this Act, or rules or 

orders prescribed under this Act, officers or employees duly designated by the Commission, upon presenting appropriate credenVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00062 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
61 

tials and a written notice from the Commission to the owner, operator, or agent in charge, are authorized—

(1) to enter, at reasonable times, (A) any factory, warehouse, 

or establishment in which consumer products are manufactured or held, in connection with distribution in commerce, or 

(B) any conveyance being used to transport consumer products 

in connection with distribution in commerce; and 

(2) to inspect, at reasonable times and in a reasonable manner such conveyance or those areas of such factory, warehouse, 

or establishment where such products are manufactured, held, 

or transported and which may relate to the safety of such products. Each such inspection shall be commenced and completed 

with reasonable promptness. 

(b) Every person who is a manufacturer, private labeler, or distributor of a consumer product shall establish and maintain such 

records, make such reports, and provide such information as the 

Commission may, by rule, reasonably require for the purposes of 

implementing this Act, or to determine compliance with rules or orders prescribed under this Act. Upon request of an officer or employee duly designated by the Commission, every such manufacturer, private labeler, or distributor shall permit the inspection of 

appropriate books, records, and papers relevant to determining 

whether such manufacturer, private labeler, or distributor has 

acted or is acting in compliance with this Act and rules under this 

Act. 

(c) Upon request by an officer or employee duly designated by the 

Commission—

(1) every importer, retailer, or distributor of a consumer product (or other product or substance over which the Commission 

has jurisdiction under this or any other Act) shall identify the 

manufacturer of that product by name, address, or such other 

identifying information as the officer or employee may request; 

and 

(2) every manufacturer shall identify by name, address, or 

such other identifying information as the officer or employee 

may request—

(A) each retailer or distributor to which it supplied a 

given consumer product (or other product or substance over 

which the Commission has jurisdiction under this or any 

other Act); 

(B) each subcontractor involved in the production or fabrication or such product or substance; and 

(C) each subcontractor from which it obtained a component thereof. 

IMPORTED PRODUCTS

[15 U.S.C. 2066] 

SEC. 17. (a) Any consumer product offered for importation into 

the customs territory of the United States (as defined in general 

note 2 of the Harmonized Tariff Schedule of the United States) 

shall be refused admission into such customs territory if such product—

(1) fails to comply with an applicable consumer product safety rule; 


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62 

(2) is not accompanied by a certificate required by section 14, 

or is not labeled in accordance with regulations under section 

14(c); 

(3) is or has been determined to be an imminently hazardous 

consumer product in a proceeding brought under section 12; 

(4) has a product defect which constitutes a substantial product hazard (within the meaning of section 15(a)(2)); øor¿ 

(5) is a product which was manufactured by a person who 

the Commission has informed the Secretary of the Treasury is 

in violation of subsection ø(g).¿ (g); or 

(6) is a children’s product, as that term is defined in section 

14(e), or a product for which the Commission, under section 

14(d)(1), has required certification under section 14(a)(2)), that 

is not accompanied by a certificate from a third party as required by section 14(a)(2). 

(b) The Secretary of the Treasury shall obtain without charge 

and deliver to the Commission, upon the latter’s request, a reasonable number of samples of consumer products being offered for import. Except for those owners or consignees who are or have been 

afforded an opportunity for a hearing in a proceeding under section 

12 with respect to an imminently hazardous product, the owner or 

consignee of the product shall be afforded an opportunity by the 

Commission for a hearing in accordance with section 554 of title 5 

of the United States Code with respect to the importation of such 

products into the customs territory of the United States. If it appears from examination of such samples or otherwise that a product must be refused admission under the terms of subsection (a), 

such product shall be refused admission, unless subsection (c) of 

this section applies and is complied with. 

(c) If it appears to the Commission that any consumer product 

which may be refused admission pursuant to subsection (a) of this 

section can be so modified that it need not (under the terms of 

paragraphs (1) through (4) of subsection (a)) be refused admission, 

the Commission may defer final determination as to the admission 

of such product and, in accordance with such regulations as the 

Commission and the Secretary of the Treasury shall jointly agree 

to, permit such product to be delivered from customs custody under 

bond for the purpose of permitting the owner or consignee an opportunity to so modify such product. 

(d) All actions taken by an owner or consignee to modify such 

product under subsection (c) shall be subject to the supervision of 

an officer or employee of the Commission and of the Department 

of the Treasury. If it appears to the Commission that the product 

cannot be so modified or that the owner or consignee is not proceeding satisfactorily to modify such product, it shall be refused admission into the customs territory of the United States, and the 

Commission may direct the Secretary to demand redelivery of the 

product into customs custody, and to seize the product in accordance with section 22(b) if it is not so redelivered. 

(e) Products refused admission into the customs territory of the 

United States under this section must be exported, except that 

upon application, the Secretary of the Treasury may permit the destruction of the product in lieu of exportation. If the owner or consignee does not export the product within a reasonable time, the 

Department of the Treasury may destroy the product. 


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63 

(f) All expenses (including travel, per diem or subsistence, and 

salaries of officers or employees of the United States) in connection 

with the destruction provided for in this section (the amount of 

such expenses to be determined in accordance with regulations of 

the Secretary of the Treasury) and all expenses in connection with 

the storage, cartage, or labor with respect to any consumer product 

refused admission under this section, shall be paid by the owner 

or consignee and, in default of such payment, shall constitute a lien 

against any future importations made by such owner or consignee. 

(g) The Commission may, by rule, condition the importation of a 

consumer product on the manufacturer’s compliance with the inspection and recordkeeping requirements of this Act and the Commission’s rules with respect to such requirements. 

(h)(1) The Commission shall establish and maintain a permanent 

product surveillance program, in cooperation with other appropriate Federal agencies, for the purpose of carrying out the Commission’s responsibilities under this Act and the other Acts administered by the Commission and preventing the entry of unsafe consumer products into the commerce of the United States. 

(2) The Commission may provide to the agencies with which it 

is cooperating under paragraph (1) such information, data, violator 

lists, test results, and other support, guidance, and documents as 

may be necessary or helpful for such agencies to cooperate with the 

Commission to carry out the product surveillance program under 

paragraph (1). 

(3) The Commission shall periodically report to the Congress the 

results of the surveillance program under paragraph (1). 

(i)(1) The Commission may—

(A) designate as a repeat offender, after notice and an opportunity for a hearing, any customs broker found by the Commission to have aided and abetted the importation of a consumer 

product in violation of subsection (a) on multiple occasions (disregarding de minimus violations thereof); and 

(B) refer any such customs broker to United States Customs 

and Border Protection with a recommendation that its customs 

broker license be revoked in accordance with that agency’s procedures. 

(2) The United States Customs and Border Protection shall revoke 

the customs broker license of any customs broker referred to it under 

paragraph (1)(B). 

EXPORTS

[15 U.S.C. 2067] 

SEC. 18. (a) This Act shall not apply to any consumer product if 

(1) it can be shown that such product is manufactured, sold, or held 

for sale for export from the United States (or that such product was 

imported for export), unless (A) such consumer product is in fact 

distributed in commerce for use in the United States, or (B) the 

Commission determines that exportation of such product presents 

an unreasonable risk of injury to consumers within the United 

States, and (2) such consumer product when distributed in commerce, or any container in which it is enclosed when so distributed, 

bears a stamp or label stating that such consumer product is intended for export; except that this Act shall apply to any consumer 

product manufactured for sale, offered for sale, or sold for shipment 


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64 

to any installation of the United States located outside the United 

States. 

(b) Not less than thirty days before any person exports to a foreign country any product— (1) which is not in conformity with an applicable consumer 

product safety standard in effect under this Act, or 

(2) which is declared to be a banned hazardous substance by 

a rule promulgated under section 9, 

such person shall file a statement with the Commission notifying 

the Commission of such exportation, and the Commission, upon receipt of such statement, shall promptly notify the government of 

such country of such exportation and the basis for such safety 

standard or rule. Any statement filed with the Commission under 

the preceding sentence shall specify the anticipated date of shipment of such product, the country and port of destination of such 

product, and the quantity of such product that will be exported, 

and shall contain such other information as the Commission may 

by regulation require. Upon petition filed with the Commission by 

any person required to file a statement under this subsection respecting an exportation, the Commission may, for good cause 

shown, exempt such person from the requirement of this subsection 

that such a statement be filed no less than thirty days before the 

date of the exportation, except that in no case shall the Commission permit such a statement to be filed later than the tenth day 

before such date. 

(c) Notwithstanding any other provision of law, the Commission 

may prohibit a person from exporting from the United States for 

purpose of sale any consumer product, or other product or substance 

that is regulated under this Act or any other Act enforced by the 

Commission, that the Commission determines, after notice to the 

manufacturer— (1) is not in conformity with an applicable consumer product 

safety standard under this Act or with a similar rule under any 

such other Act and does not violate applicable safety standards 

established by the importing country; 

(2) is subject to an order issued under section 12 or 15 of this 

Act or designated as a banned hazardous substance under the 

Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.); or 

(3) is subject to voluntary corrective action taken by the manufacturer, in consultation with the Commission, of which action 

the Commission has notified the public and that would have 

been subject to mandatory corrective action under this Act or 

any other Act enforced by the Commission if voluntary corrective action had not been taken by the manufacturer, except that 

the Commission may permit such a product to be exported if it 

meets applicable safety standards established by the importing 

country. 

PROHIBITED ACTS

[15 U.S.C. 2068] 

SEC. 19. (a) It shall be unlawful for any person to—

ø(1) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product 

which is not in conformity with an applicable consumer product safety standard under this Act;¿ 


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65 

(1) sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States any consumer product, 

or other product or substance that is regulated under this Act 

or any other Act enforced by the Commission, that is—

(A) not in conformity with an applicable consumer product safety standard under this Act, or any similar rule 

under any such other Act; 

(B) subject to voluntary corrective action taken by the 

manufacturer, in consultation with the Commission, of 

which action the Commission has notified the public, but 

only if the seller, distributor, or manufacturer knew or 

should have known of such voluntary corrective action; or 

(C) subject to an order issued under section 12 or 15 of 

this Act, designated a banned hazardous substance under 

the Federal Hazardous Substances Act (15 U.S.C. 1261 et 

seq.); 

(2) manufacture for sale, offer for sale, distribute in commerce, or import into the United States any consumer product 

which has been declared a banned hazardous product by a rule 

under this Act; 

(3) fail or refuse to permit access to or copying of records, or 

fail or refuse to establish or maintain records, or fail or refuse 

to make reports or provide information, or fail or refuse to permit entry or inspection, as required under this Act or rule 

thereunder; 

(4) fail to furnish information required by section 15(b); 

(5) fail to comply with an order issued under section 15 (c) 

or (d) (relating to notification, and to repair, replacement, and 

refund, and to prohibited acts); 

ø(6) fail to furnish a certificate required by section 14 or 

issue a false certificate if such person in the exercise of due 

care has reason to know that such certificate is false or misleading in any material respect; or to fail to comply with any 

rule under section 14(c) (relating to labeling);¿ 

(6) fail to furnish a certificate required by this Act or any 

other Act enforced by the Commission, or to issue a false certificate if such person in the exercise of due care has reason to 

know that the certificate is false or misleading in any material 

respect; or to fail to comply with any rule under section 14(c); 

(7) fail to comply with any rule under section 9(g)(2) (relating 

to stockpiling); øor¿ 

(8) fail to comply with any rule under section 27(e) (relating 

to provision of performance and technical data); øand¿ 

(9) fail to comply with any rule or requirement under section 

35 (relating to labeling and testing of cellulose øinsulation).¿ 

insulation; 

(10) fail to file a statement with the Commission pursuant 

to section ø18(b).¿ 18(b); 

(11) fail to furnish information required by section ø37.¿ 37; 

(12) violate an order of the Commission under section 18(c); 

(13) sell, offer for sale, distribute in commerce, or import into 

the United States any consumer product bearing a false certification mark of compliance with a safety standard established 

by a nationally recognized testing laboratory if such person 


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66 

knew or should have known that the certification mark was 

false; 

(14) misrepresent to any officer or employee of the Commission the scope of consumer products subject to an action required under section 12 or 15, or to make a material misrepresentation to such an officer or employee in the course of an investigation under this Act or any other Act enforced by the Commission; or 

(15) exercise, or attempt to exercise, undue influence on a 

third party laboratory (as defined in section 14(e)(2)) with respect to the testing, or reporting of the results of testing, of any 

product for compliance with a standard under this Act or any 

other Act enforced by the Commission. 

(b) Paragraphs (1) and (2) of subsection (a) of this section shall 

not apply to any person (1) who holds a certificate issued in accordance with section 14(a) to the effect that such consumer product 

conforms to all applicable consumer product safety rules, unless 

such person knows that such consumer product does not conform, 

or (2) who relies in good faith on the representation of the manufacturer or a distributor of such product that the product is not 

subject to an applicable product safety rule. 

CIVIL PENALTIES

[15 U.S.C. 2069] 

SEC. 20. (a)(1) Any person who knowingly violates section 19 of 

this Act shall be subject to a civil penalty not to exceed ø$5,000¿ 

$250,000 for each such violation. Subject to paragraph (2), a violation of section 19(a) (1), (2), (4), (5), (6), (7), (8), (9), (10), or (11) 

shall constitute a separate offense with respect to each consumer 

product involved, except that the maximum civil penalty shall not 

exceed ø$1,250,000¿ $100,000,000 for any related series of violations. A violation of section 19(a)(3) shall constitute a separate violation with respect to each failure or refusal to allow or perform an 

act required thereby; and, if such violation is a continuing one, 

each day of such violations shall constitute a separate offense, except that the maximum civil penalty shall not exceed ø$1,250,000¿ 

$100,000,000 for any related series of violations. 

(2) The second sentence of paragraph (1) of this subsection shall 

not apply to violations of paragraph (1) or (2) of section 19(a)—

(A) if the person who violated such paragraphs is not the 

manufacturer or private labeler or a distributor of the products 

involved, and 

(B) if such person did not have either (i) actual knowledge 

that his distribution or sale of the product violated such paragraphs or (ii) notice from the Commission that such distribution or sale would be a violation of such paragraphs. 

(3)(A) The maximum penalty amounts authorized in paragraph 

(1) shall be adjusted for inflation as provided in this paragraph. 

(B) Not later than øDecember 1, 1994,¿ December 1, 2011, and 

December 1 of each fifth calendar year thereafter, the Commission 

shall prescribe and publish in the Federal Register a schedule of 

maximum authorized penalties that shall apply for violations that 

occur after January 1 of the year immediately following such publication. 


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67 

(C) The schedule of maximum authorized penalties shall be prescribed by increasing each of the amounts referred to in paragraph 

(1) by the cost-of-living adjustment for the preceding five years. 

Any increase determined under the preceding sentence shall be 

rounded to— (i) in the case of penalties greater than $1,000 but less than or equal to $10,000, the nearest multiple of $1,000; (ii) in the case of penalties greater than $10,000 but less than or equal to $100,000, the nearest multiple of $5,000; (iii) in the case of penalties greater than $100,000 but less than or equal to $200,000, the nearest multiple of $10,000; and (iv) in the case of penalties greater than $200,000, the near- est multiple of $25,000. 

(D) For purposes of this subsection: 

(i) The term ‘‘Consumer Price Index’’ means the Consumer 

Price Index for all-urban consumers published by the Department of Labor. 

(ii) The term ‘‘cost-of-living adjustment for the preceding five 

years’’ means the percentage by which— (I) the Consumer Price Index for the month of June of 

the calendar year preceding the adjustment; exceeds 

(II) the Consumer Price Index for the month of June preceding the date on which the maximum authorized penalty 

was last adjusted. 

(b) In determining the amount of any penalty to be sought upon 

commencing an action seeking to assess a penalty for a violation 

of section 19(a), the Commission shall consider the nature of the 

product defect, the severity of the risk of injury, the occurrence of 

absence of injury, the number of defective products distributed, and 

the appropriateness of such penalty in relation to the size of the 

business of the person charged. 

(c) Any civil penalty under this section may be compromised by 

the Commission. In determining the amount of such penalty or 

whether it should be remitted or mitigated and in what amount, 

the Commission shall consider the appropriateness of such penalty 

to the size of the business of the person charged, the nature of the 

product defect, the severity of the risk of injury, the occurrence or 

absence of injury, and the number of defective products distributed. 

The amount of such penalty when finally determined, or the 

amount agreed on compromise, may be deducted from any sums 

owing by the United States to the person charged. 

(d) As used in the first sentence of subsection (a)(1) of this section, the term ‘‘knowingly’’ means (1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain 

the truth of representations. 

CRIMINAL PENALTIES

[15 U.S.C. 2070] 

SEC. 21. ø(a) Any person who knowingly and willfully violates 

section 19 of this Act after having received notice of noncompliance 

from the Commission shall be fined not more than $50,000 or be 

imprisoned not more than one year, or both.¿ (a) Violation of section 19 of this Act is punishable by—


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68 

(1) imprisonment for not more than—

(A) 1 year for a knowing violation of that section; or 

(B) 5 years for a knowing and willful violation of that 

section; and 

(2) a fine determined under section 3571 of title 18, United 

States Code. 

(b) Any individual director, officer, or agent of a corporation who 

knowingly øand willfully¿ authorizes, orders, or performs any of 

the acts or practices constituting in whole or in part a violation of 

section ø19, and who has knowledge of notice of noncompliance received by the corporation from the Commission,¿ 19 shall be subject to penalties under this section without regard to any penalties 

to which that corporation may be subject under subsection (a). 

(c)(1) In addition to the penalties provided by subsection (a), the 

penalty for a criminal violation of this Act or any other Act enforced 

by the Commission may include the forfeiture of assets associated 

with the violation. 

(2) In this subsection, the term ‘criminal violation’ means a violation of this Act of any other Act enforced by the Commission for 

which the violator is sentenced to pay a fine, be imprisoned, or both. 

* * * * * * * 

ENFORCEMENT BY STATE ATTORNEYS GENERAL

SEC. 26A. (a) Except as provided in subsection (f), a State, as 

parens patriae, may bring a civil action on behalf of its residents 

in an appropriate State or district court of the United States to enforce the provisions of this Act or any other Act enforced by the 

Commission to obtain penalties and relief provided under such Acts 

whenever the attorney general of the State has reason to believe that 

the interests of the residents of the State have been or are being 

threatened or adversely affected by a manufacturer, distributor, or 

retailer entity that violates this Act or a regulation under this Act. 

(b) The State shall serve written notice to the Commission of any 

civil action under subsection (a) at least 60 days prior to initiating 

such civil action. The notice shall include a copy of the complaint 

to be filed to initiate such civil action, except that if it is not feasible 

for the State to provide such prior notice, the State shall provide notice immediately upon instituting such civil action. 

(c) Upon receiving the notice required by subsection (b), the Commission may intervene in such civil action and upon intervening—

(1) be heard on all matters arising in such civil action; and 

(2) file petitions for appeal of a decision in such civil action. 

(d) Nothing in this section shall prevent the attorney general of 

a State from exercising the powers conferred on the attorney general 

by the laws of such State to conduct investigations or to administer 

oaths or affirmations or to compel the attendance of witnesses or the 

production of documentary and other evidence. 

(e) In a civil action brought under subsection (a)—

(1) the venue shall be a judicial district in which—

(A) the manufacturer, distributor, or retailer operates; or 

(B) the manufacturer, distributor, or retailer is authorized to do business; 


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69 

(2) process may be served without regard to the territorial 

limits of the district or of the State in which the civil action is 

instituted; and 

(3) a person who participated with a manufacturer, distributor, or retailer in an alleged violation that is being litigated in the civil action may be joined in the civil action without regard to the residence of the person. 

(f) If the Commission has instituted a civil action or an administrative action for violation of this Act or any other Act enforced by 

the Commission, no State attorney general, or other official or agency of a State, may bring an action under this section during the 

pendency of that action against any defendant named in the complaint of the Commission for any violation of this Act alleged in the 

complaint. 

(g) If the attorney general of the State prevails in any civil action 

under subsection (a), it can recover reasonable costs and attorney 

fees from the manufacturer, distributor, or retailer. 

* * * * * * * 

COOPERATION WITH STATES AND WITH OTHER FEDERAL AGENCIES

[15 U.S.C. 2078] 

SEC. 29. (a) The Commission shall establish a program to promote Federal-State cooperation for the purposes of carrying out 

this Act. In implementing such program the Commission may— (1) accept from any State or local authorities engaged in activities relating to health, safety, or consumer protection assistance in such functions as injury data collection, investigation, 

and educational programs, as well as other assistance in the 

administration and enforcement of this Act which such States 

or localities may be able and willing to provide and, if so 

agreed, may pay in advance or otherwise for the reasonable 

cost of such assistance, and 

(2) commission any qualified officer or employee of any State 

or local agency as an officer of the Commission for the purpose 

of conducting examinations, investigations, and inspections. 

(b) In determining whether such proposed State and local programs are appropriate in implementing the purposes of this Act, 

the Commission shall give favorable consideration to programs 

which establish separate State and local agencies to consolidate 

functions relating to product safety and other consumer protection 

activities. 

(c) The Commission may obtain from any Federal department or 

agency such statistics, data, program reports, and other materials 

as it may deem necessary to carry out its functions under this Act. 

Each such department or agency may cooperate with the Commission and, to the extent permitted by law, furnish such materials to 

it. The Commission and the heads of other departments and agencies engaged in administering programs related to product safety 

shall, to the maximum extent practicable, cooperate and consult in 

order to insure fully coordinated efforts. 

(d) The Commission shall, to the maximum extent practicable, 

utilize the resources and facilities of the National Bureau of Standards, on a reimbursable basis, to perform research and analyses related to risks of injury associated with consumer products (includVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00071 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
70 

ing fire and flammability risks), to develop test methods, to conduct 

studies and investigations, and to provide technical advice and assistance in connection with the functions of the Commission. 

(e) The Commission may provide to another Federal agency or a 

State or local agency or authority engaged in activities relating to 

health, safety, or consumer protection, copies of any accident or investigation report made under this Act by any officer, employee, or 

agent of the Commission only if (1) information which under section 6(a)(2) is to be considered confidential is not included in any 

copy of such report which is provided under this subsection; and (2) 

each Federal agency and State and local agency and authority 

which is to receive under this subsection a copy of such report provides assurances satisfactory to the Commission that the identity 

of any injured person and any person who treated an injured person will not, without the consent of the person identified, be included in— (A) any copy of any such report, or 

(B) any information contained in any such report, which the 

agency or authority makes available to any member of the public. No Federal agency or State or local agency or authority 

may disclose to the public any information contained in a report received by the agency or authority under this subsection 

unless with respect to such information the Commission has 

complied with the applicable requirements of section 6(b). 

(f)(1) The Commission may make information obtained by the 

Commission under section 6 available to any Federal, State, local, 

or foreign government agency upon the prior certification of an appropriate official of any such agency, either by a prior agreement or 

memorandum of understanding with the Commission or by other 

written certification, that such material will be maintained in confidence and will be used only for official law enforcement or consumer protection purposes, if— (A) the agency has set forth a bona fide legal basis for its authority to maintain the material in confidence; 

(B) the materials are to be used for purposes of investigating, 

or engaging in enforcement proceedings related to, possible violations of—

(i) laws regulating the manufacture, importation, distribution, or sale of defective or unsafe consumer products, 

or other practices substantially similar to practices prohibited by any law administered by the Commission; 

(ii) a law administered by the Commission, if disclosure 

of the material would further a Commission investigation 

or enforcement proceeding; or 

(iii) with respect to a foreign law enforcement agency, 

with the approval of the Attorney General, other foreign 

criminal laws, if such foreign criminal laws are offenses 

defined in or covered by a criminal mutual legal assistance 

treaty in force between the government of the United States 

and the foreign law enforcement agency’s government; and 

(C) the foreign government agency is not from a foreign state 

that the Secretary of State has determined, in accordance with 

section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 

App. 2405(j)), has repeatedly provided support for acts of international terrorism, unless and until such determination is reVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00072 Fmt 6659 Sfmt 6603 E:\HR\OC\SR265.XXX SR265

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71 

scinded pursuant to section 6(j)(4) of that Act (50 U.S.C. App. 

2405(j)(4)). 

(2) Except as provided in paragraph (3) of this subsection, the 

Commission shall not be required to disclose under section 552 of 

title 5, United States Code, or any other provision of law— (A) any material obtained from a foreign government agency, 

if the foreign government agency has requested confidential 

treatment, or has precluded such disclosure under other use 

limitations, as a condition of providing the material; 

(B) any material reflecting a consumer complaint obtained 

from any other foreign source, if the foreign source supplying 

the material has requested confidential treatment as a condition 

of providing the material; or 

(C) any material reflecting a consumer complaint submitted 

to a Commission reporting mechanism sponsored in part by foreign government agencies. 

(3) Nothing in this subsection shall authorize the Commission to 

withhold information from the Congress or prevent the Commission 

from complying with an order of a court of the United States in an 

action commenced by the United States or the Commission. 

(4) The Commission may terminate a memorandum of understanding or other agreement with another agency if it determines 

that the other agency has not handled information made available 

by the Commission under paragraph (1) or has failed to maintain 

confidentiality with respect to the information. 

(5) In this subsection, the term ‘‘foreign government agency’’

means—

(A) any agency or judicial authority of a foreign government, 

including a foreign state, a political subdivision of a foreign 

state, or a multinational organization constituted by and comprised of foreign states, that is vested with law enforcement or 

investigative authority in civil, criminal, or administrative matters; and 

(B) any multinational organization, to the extent that it is 

acting on behalf of an entity described in subparagraph (A). 

AUTHORIZATION OF APPROPRIATIONS

[15 U.S.C. 2081] 

SEC. 32. ø(a) There are authorized to be appropriated for the purposes of carrying out the provisions of this Act (other than the provisions of section 27(h) which authorize the planning and construction of research, development, and testing facilities) and for the 

purpose of carrying out the functions, powers, and duties transferred to the Commission under section 30, not to exceed—

ø(1) $42,000,000 for fiscal year 1991, and 

ø(2) $45,000,000 for fiscal year 1992. 

For payment of accumulated and accrued leave under section 5551 

of title 5, United States Code, severance pay under section 5595 

under such title, and any other expense related to a reduction in 

force in the Commission, there are authorized to be appropriated 

such sums as may be necessary. 

ø(b)(1) There are authorized to be appropriated such sums as 

may be necessary for the planning and construction of research, development and testing facilities described in section 27(h); except 

that no appropriation shall be made for any such planning or conVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00073 Fmt 6659 Sfmt 6602 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
72 

struction involving an expenditure in excess of $100,000 if such 

planning or construction has not been approved by resolutions 

adopted in substantially the same form by the Committee on Energy and Commerce of the House of Representatives, and by the 

Committee on Commerce, Science, and Transportation of the Senate. For the purpose of securing consideration of such approval the 

Commission shall transmit to Congress a prospectus of the proposed facility including (but not limited to)— ø(A) a brief description of the facility to be planned or constructed; 

ø(B) the location of the facility, and an estimate of the maximum cost of the facility; 

ø(C) a statement of those agencies, private and public, which 

will use such facility, together with the contribution to be 

made by each such agency toward the cost of such facility; and 

ø(D) a statement of justification of the need for such facility. 

ø(2) The estimated maximum cost of any facility approved under 

this subsection as set forth in the prospectus may be increased by 

the amount equal to the percentage increase, if any, as determined 

by the Commission, in construction costs, from the date of the 

transmittal of such prospectus to Congress, but in no event shall 

the increase authorized by this paragraph exceed 10 per centum of 

such estimated maximum cost.¿ 

(a) There are authorized to be appropriated to the Commission for 

the purpose of carrying out the provisions of this Act and any other 

provision of law the Commission is authorized or directed to carry 

out— (1) $80,000,000 for fiscal year 2009; 

(2) $88,500,000 for fiscal year 2010; 

(3) $96,800,000 for fiscal year 2011; 

(4) $106,480,000 for fiscal year 2012; 

(5) $117,128,000 for fiscal year 2013; 

(6) $128,841,000 for fiscal year 2014; and 

(7) $141,725,000 for fiscal year 2015. 

(b) There are authorized to be appropriated to the Commission for 

the Office of Inspector General—

(1) $1,600,000 for fiscal year 2009; 

(2) $1,770,000 for fiscal year 2010; 

(3) $1,936,000 for fiscal year 2011; 

(4) $2,129,600 for fiscal year 2012; 

(5) $2,342,560 for fiscal year 2013; 

(6) $2,576,820 for fiscal year 2014; and 

(7) $2,834,500 for fiscal year 2015. 

(c) There are authorized to be appropriated to the Commission for 

the purpose of renovation, repair, construction, equipping, and making other necessary capital improvements to the Commission’s research, development, and testing facility (including bringing the facility into compliance with applicable environmental, safety, and accessibility standards), $40,000,000 for fiscal years 2009 and 2010. 

(d) There are authorized to be appropriated to the Commission for 

research, in cooperation with the National Institute of Science and 

Technology, the Food and Drug Administration, and other relevant 

Federal agencies into safety issues related to the use of 

nanotechnology in consumer products, $1,000,000 for fiscal years 

2009 and 2010. 


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73 

ø(c)¿ (e) No funds appropriated under subsection (a) may be used 

to pay any claim described in section 4(i) whether pursuant to a 

judgment of a court or under any award, compromise, or settlement 

of such claim made under section 2672 of title 28, United States 

Code, or under any other provision of law. 

* * * * * * * 

BOND AUTHORITY

SEC. 39. (a) The Commission, in a rulemaking proceeding, may 

require the posting of a bond (or other security acceptable to the 

Commission) by—

(1) a person that has committed multiple significant violations of this Act or any rule or Act enforced by the Commission; 

(2) the manufacturer or distributor of a category or class of 

consumer products; or 

(3) the manufacturer or distributor of any consumer product 

or any product or substance regulated under any other Act enforced by the Commission. 

(b) AMOUNT.—The bond or other security required by the Commission under subsection (a) shall be in an amount sufficient—

(1) to cover the costs of an effective recall of the product or 

substance; or 

(2) in the case of an imported product or substance, to cover 

the costs of holding the product or substance at the port and the 

destruction of the product should such action be required by the 

Commission under this Act or any other Act enforced by the 

Commission. 

WHISTLEBLOWER PROTECTION

SEC. 40. (a) No manufacturer, private labeler, distributor, or retailer, nor any Federal, State, or local government agency, may discharge an employee or otherwise discriminate against an employee 

with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initiative 

or in the ordinary course of the employee’s duties (or any person acting pursuant to a request of the employee)—

(1) provided, caused to be provided, or is about to provide or 

cause to be provided to the employer, the Federal Government, 

or the attorney general of a State information relating to any 

violation or alleged violation of any order, regulation, or consumer product safety standard under this Act or any other law 

enforced by the Commission (or by the attorney general of a 

State under section 21); 

(2) testified or is about to testify in such a proceeding; 

(3) assisted or participated or is about to assist or participate 

in such a proceeding; or 

(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such 

person) reasonably believed to be in violation of an applicable 

law or to be a substantial and specific danger to public health 

or safety. 

(b)(1) If the Commission, or the attorney general of a State, proceeds with an action against a manufacturer, private labeler, distributor, or retailer for a violation of this Act or any other Act enVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00075 Fmt 6659 Sfmt 6603 E:\HR\OC\SR265.XXX SR265

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forced by the Commission, on the basis of information provided by 

such an employee, the employee shall receive at least 15 percent but 

not more than 25 percent of any civil penalty assessed and collected 

by the Commission, or attorney general, for the violation, depending 

upon the extent to which the information provided by the employee 

substantially contributed to the enforcement action, as determined 

by the Commission. 

(2) If the Commission’s action is based primarily on disclosures 

of specific information (other than information provided by the employee) relating to allegations or transactions in a criminal, civil, or 

administrative hearing, in a congressional, administrative, or Government Accountability Office report, hearing, audit, or investigation, or from the news media, the Commission may award such 

sums as it considers appropriate to the employee, but in no case 

more than 10 percent of the civil penalty assessed and collected, taking into account the significance of the information and the role of 

the employee. 

(3) In the case of an action brought by the attorney general of a 

State under section 21, the amount of any civil penalty to which 

such an employee may be entitled shall be determined by the Commission, subject to the limitations in paragraph (1) and (2), in consultation with the attorney general that brought the action. 

(c)(1) A person who believes that he or she has been discharged 

or otherwise discriminated against by any person in violation of 

subsection (a) may, not later than 1 year after the date on which 

such violation occurs, file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging such discharge or discrimination and identifying the person responsible for 

such act. Upon receipt of such a complaint, the Secretary shall notify, in writing, the person named in the complaint of the filing of 

the complaint, of the allegations contained in the complaint, of the 

substance of evidence supporting the complaint, and of the opportunities that will be afforded to such person under paragraph (2). 

(2)(A) Not later than 60 days after the date of receipt of a complaint filed under paragraph (1) and after affording the complainant and the person named in the complaint an opportunity to submit to the Secretary a written response to the complaint and an opportunity to meet with a representative of the Secretary to present 

statements from witnesses, the Secretary shall initiate an investigation and determine whether there is reasonable cause to believe that 

the complaint has merit and notify, in writing, the complainant and 

the person alleged to have committed a violation of subsection (a) 

of the Secretary’s findings. If the Secretary concludes that there is 

reasonable cause to believe that a violation of subsection (a) has occurred, the Secretary shall accompany the Secretary’s findings with 

a preliminary order providing the relief prescribed by paragraph 

(3)(B). Not later than 30 days after the date of notification of findings under this paragraph, either the person alleged to have committed the violation or the complainant may file objections to the 

findings or preliminary order, or both, and request a hearing on the 

record. The filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order. Any such 

hearing shall be conducted expeditiously. If a hearing is not requested in such 30-day period, the preliminary order shall be 

deemed a final order that is not subject to judicial review. 


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(B)(i) The Secretary shall dismiss a complaint filed under this 

subsection and shall not conduct an investigation otherwise required under subparagraph (A) unless the complainant makes a 

prima facie showing that any behavior described in paragraphs (1) 

through (4) of subsection (a) was a contributing factor in the unfavorable personnel action alleged in the complaint. 

(ii) Notwithstanding a finding by the Secretary that the complainant has made the showing required under clause (i), no investigation otherwise required under subparagraph (A) shall be conducted 

if the employer demonstrates, by clear and convincing evidence, that 

the employer would have taken the same unfavorable personnel action in the absence of that behavior. 

(iii) The Secretary may determine that a violation of subsection 

(a) has occurred only if the complainant demonstrates that any behavior described in paragraphs (1) through (4) of subsection (a) was 

a contributing factor in the unfavorable personnel action alleged in 

the complaint. 

(iv) Relief may not be ordered under subparagraph (A) if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in 

the absence of that behavior. 

(3)(A) Not later than 120 days after the date of conclusion of any 

hearing under paragraph (2), the Secretary shall issue a final order 

providing the relief prescribed by this paragraph or denying the 

complaint. At any time before issuance of a final order, a proceeding 

under this subsection may be terminated on the basis of a settlement 

agreement entered into by the Secretary, the complainant, and the 

person alleged to have committed the violation. 

(B) If, in response to a complaint filed under paragraph (1), the 

Secretary determines that a violation of subsection (a) has occurred, 

the Secretary shall order the person who committed such violation— (i) to take affirmative action to abate the violation; 

(ii) to reinstate the complainant to his or her former position 

together with compensation (including back pay) and restore 

the terms, conditions, and privileges associated with his or her 

employment; and 

(iii) to provide compensatory damages to the complainant. 

If such an order is issued under this paragraph, the Secretary, at 

the request of the complainant, shall assess against the person 

against whom the order is issued a sum equal to the aggregate 

amount of all costs and expenses (including attorneys’ and expert 

witness fees) reasonably incurred, as determined by the Secretary, 

by the complainant for, or in connection with, the bringing of the 

complaint upon which the order was issued. 

(C) If the Secretary finds that a complaint under paragraph (1) 

is frivolous or has been brought in bad faith, the Secretary may 

award to the prevailing employer a reasonable attorneys’ fee, not exceeding $1,000, to be paid by the complainant. 

(4) If the Secretary has not issued a final decision within 180 

days after the filing of the complaint, or within 90 days after receiving a written determination, the complainant may bring an action 

at law or equity for de novo review in the appropriate district court 

of the United States with jurisdiction, which shall have jurisdiction 

over such an action without regard to the amount in controversy, 

and which action shall, at the request of either party to such action, 


wwoods2 on PRODPC68 with REPORTS
76 

be tried by the court with a jury. The proceedings shall be governed 

by the same legal burdens of proof specified in paragraph (2)(B). 

The court shall have jurisdiction to grant all appropriate relief to 

the employee available by law or equity, including injunctive relief, 

compensatory and consequential damages, reasonable attorneys and 

expert witness fees, court costs, and punitive damages up to 

$250,000. 

(5)(A) Any person adversely affected or aggrieved by a final order 

issued under paragraph (3) may obtain review of the order in the 

United States Court of Appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred 

or the circuit in which the complainant resided on the date of such 

violation. The petition for review must be filed not later than 60 

days after the date of the issuance of the final order of the Secretary. 

Review shall conform to chapter 7 of title 5, United States Code. 

The commencement of proceedings under this subparagraph shall 

not, unless ordered by the court, operate as a stay of the order. 

(B) An order of the Secretary with respect to which review could 

have been obtained under subparagraph (A) shall not be subject to 

judicial review in any criminal or other civil proceeding. 

(6) Whenever any person has failed to comply with an order 

issued under paragraph (3), the Secretary may file a civil action in 

the United States district court for the district in which the violation was found to occur, or in the United States district court for 

the District of Columbia, to enforce such order. In actions brought 

under this paragraph, the district courts shall have jurisdiction to 

grant all appropriate relief including, but not limited to, injunctive 

relief and compensatory damages. 

(7)(A) A person on whose behalf an order was issued under paragraph (3) may commence a civil action against the person to whom 

such order was issued to require compliance with such order. The 

appropriate United States district court shall have jurisdiction, 

without regard to the amount in controversy or the citizenship of the 

parties, to enforce such order. 

(B) The court, in issuing any final order under this paragraph, 

may award costs of litigation (including reasonable attorneys’ and 

expert witness fees) to any party whenever the court determines such 

award is appropriate. 

(d) Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of 

title 28, United States Code. 

(e) Subsection (a) shall not apply with respect to an employee of 

a manufacturer, private labeler, distributor, or retailer who, acting 

without direction from such manufacturer, private labeler, distributor, or retailer (or such person’s agent), deliberately causes a 

violation of any requirement relating to any violation or alleged violation of any order, regulation, or consumer product safety standard 

under this Act or any other law enforced by the Commission. 

ALL-TERRAIN VEHICLE SAFETY STANDARD. 

SEC. 41. (a) IN GENERAL.—

(1) MANDATORY STANDARD.—Notwithstanding any other provision of law, within 90 days after the date of enactment of the 

CPSC Reform Act of 2007 the Commission shall publish in the 

Federal Register as a mandatory consumer product safety 


wwoods2 on PRODPC68 with REPORTS
77 

standard the American National Standard for Four Wheel AllTerrain Vehicles Equipment Configuration, and Performance 

Requirements developed by the Specialty Vehicle Institute of 

America (American National Standard ANSI/SVIA–1–2007). 

The standard shall take effect 150 days after it is published. 

(2) COMPLIANCE WITH STANDARD.—After the standard takes 

effect, it shall be unlawful for any manufacturer or distributor 

to import into or distribute in commerce in the United States 

any new assembled or unassembled all-terrain vehicle unless—

(A) the vehicle complies with each applicable provision of 

the standard; 

(B) the vehicle is subject to an ATV action plan filed with 

the Commission before January 1, 2008, or subsequently 

filed with and approved by the Commission, and bears a 

label certifying such compliance and identifying the manufacturer, importer or private labeler and the ATV action 

plan to which it is subject; and 

(C) the manufacturer or distributor is in compliance with 

all provisions of the applicable ATV action plan. 

(3) VIOLATION.—The failure to comply with any requirement 

of paragraph (2) shall be deemed to be a failure to comply with 

a consumer product safety rule under this Act and subject to all 

of the penalties and remedies available under this Act. 

(4) COMPLIANT MODELS WITH ADDITIONAL FEATURES.—Paragraph (2) shall not be construed to prohibit the distribution in 

interstate commerce of new all-terrain vehicles that comply with 

the requirements of that paragraph but also incorporate characteristics or components that are not covered by those requirements. Any such characteristics or components shall be subject 

to the requirements of section 15 of this Act. 

(b) MODIFICATION OF ALL-TERRAIN VEHICLE SAFETY STANDARD.—

(1) ANSI REVISIONS.—If the American National Standard 

ANSI/SVIA–1–2007 is revised through the applicable consensus standards development process after the date on which 

the product safety standard for all-terrain vehicles is published 

in the Federal Register, the American National Standards Institute shall notify the Commission of the revision. 

(2) COMMISSION ACTION.—Within 120 days after it receives 

notice of such a revision by the American National Standards 

Institute, the Commission shall issue a notice of proposed rulemaking in accordance with section 553 of title 5, United States 

Code, to amend the product safety standard for all-terrain vehicles to include any such revision that the Commission determines is reasonably related to the safe performance of all-terrain vehicles, and notify the Institute of any provision it has determined not to be so related. The Commission shall promulgate 

an amendment to the standard for all-terrain vehicles within 

180 days after the date on which the notice of proposed rulemaking for the amendment is published in the Federal Register. 

(3) UNREASONABLE RISK OF INJURY.—Notwithstanding any 

other provision of this Act, the Commission may, pursuant to 

sections 7 and 9 of this Act, amend the product safety standard 

for all-terrain vehicles to include any additional provision that 

the Commission determines is reasonably necessary to reduce 


wwoods2 on PRODPC68 with REPORTS
78 

an unreasonable risk of injury associated with the performance 

of all-terrain vehicles. 

(4) CERTAIN PROVISIONS NOT APPLICABLE.—Sections 7, 9, 11, 

and 30(d) of this Act shall not apply to promulgation of any 

amendment of the product safety standard under paragraph 

(2). Judicial review of any amendment of the standard under 

paragraph (2) shall be in accordance with chapter 7 of title 5, 

United States Code. 

(c) REQUIREMENTS FOR 3-WHEELED ALL-TERRAIN VEHICLES.—

Until a mandatory consumer product safety rule applicable to 3- 

wheeled all-terrain vehicles promulgated pursuant to this Act is in 

effect, new 3-wheeled all-terrain vehicles may not be imported into 

or distributed in commerce in the United States. Any violation of 

this subsection shall be considered to be a violation of section 

19(a)(1) of this Act and may also be enforced under section 17 of 

this Act. 

(d) FURTHER PROCEEDINGS.—

(1) DEADLINE.—The Commission shall issue a final rule in its 

proceeding entitled ‘‘Standards for All Terrain Vehicles and 

Ban of Three-wheeled All Terrain Vehicles’’. 

(2) CATEGORIES OF YOUTH ATVS.—In the final rule, the Commission may provide for a multiple factor method of categorization that, at a minimum, takes into account—

(A) the weight of the vehicle; 

(B) the maximum speed of the vehicle; 

(C) the velocity at which a vehicle of a given weight is 

travelling at the maximum speed of the vehicle; 

(D) the age of children for whose operation the vehicle is 

designed or who may reasonably be expected to operate the 

vehicle; and 

(E) the average weight of children for whose operation 

the vehicle is designed or who may reasonably be expected 

to operate the vehicle. 

(e) DEFINITIONS.—In this section: 

(1) ALL-TERRAIN VEHICLE OR ATV.—The term ‘‘all-terrain vehicle’’ or ‘‘ATV’’ means—

(A) any motorized, off-highway vehicle designed to travel 

on 3 or 4 wheels, having a seat designed to be straddled 

by the operator and handlebars for steering control; but 

(B) does not include a prototype of a motorized, off-highway, all-terrain vehicle or other motorized, off-highway, allterrain vehicle that is intended exclusively for research and 

development purposes unless the vehicle is offered for sale. 

(2) ATV ACTION PLAN.—The term ‘‘ATV action plan’’ means a 

written plan or letter of undertaking that describes actions the 

manufacturer or distributor agrees to take to promote ATV safety, including rider training, dissemination of safety information, age recommendations, other policies governing marketing 

and sale of the vehicles, the monitoring of such sales, and other 

safety related measures, and that is substantially similar to the 

plans described under the heading The Undertakings of the 

Companies in the Commission Notice published in the Federal 

Register on September 9, 1998 (63 FR 48199–48204). 


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79 

DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND 

URBAN DEVELOPMENT, AND INDEPENDENT AGENCIES 

APPROPRIATIONS ACT, 1993 

* * * * * * * 

CONSUMER PRODUCT SAFETY COMMISSION, SALARIES AND EXPENSES

For necessary expenses of the Consumer Product Safety Commission, including hire of passenger motor vehicles, services as authorized by 5 U.S.C. 3109, but at rates for individuals not to exceed the 

per diem rate equivalent to the rate for GS–18, purchase of nominal awards to recognize non-Federal officials’ contributions to Commission activities, and not to exceed $500 for official reception and 

representation expenses, $48,400,000: øProvided, That funds shall 

not be available for the personnel compensation and benefits of 

more than three Commissioners of the Consumer Product Safety 

Commission for fiscal year 1993 and thereafter:¿ Provided further, 

That of the funds provided under this heading, $6,300,000 shall be 

for the relocation of the headquarters staff of the Commission and 

shall be available until expended. 

FEDERAL REPORTS ELIMINATION AND SUNSET ACT OF 

1995 

* * * * * * * 

SEC. 3003 TERMINATION OF REPORTING REQUIREMENTS 

[31 U.S.C. 1113 note] 

(a) TERMINATION.— (1) IN GENERAL.—Subject to the provisions of paragraph (2) 

of this subsection and subsection (d), each provision of law requiring the submittal to Congress (or any committee of the 

Congress) of any annual, semiannual, or other regular periodic 

report specified on the list described under subsection (c) shall 

cease to be effective, with respect to that requirement, May 15, 

2000. 

(2) EXCEPTION.—The provisions of paragraph (1) shall not 

apply to any report required under— (A) the Inspector General Act of 1978 (5 U.S.C. App.); or 

(B) the Chief Financial Officers Act of 1990 (Public Law 

101–576), including provisions enacted by the amendments 

made by that Act. 

(b) IDENTIFICATION OF WASTEFUL REPORTS.—The President shall 

include in the first annual budget submitted pursuant to section 

1105 of title 31, United States Code, after the date of enactment 

of this Act a list of reports that the President has determined are 

unnecessary or wasteful and the reasons for such determination. 

(c) LIST OF REPORTS.—The list referred to under subsection (a) is 

the list prepared by the Clerk of the House of Representatives for 

the first session of the One Hundred Third Congress under clause 

2 of rule III of the Rules of the House of Representatives (House 

Document No. 103–7). 

(d) SPECIFIC REPORTS EXEMPTED.—Subsection (a)(1) shall not 

apply to any report required under— (1) section 116 of the Foreign Assistance Act of 1961 (22 

U.S.C. 2151n); 


wwoods2 on PRODPC68 with REPORTS
80 

(2) section 306 of that Act (22 U.S.C. 2226); 

(3) section 489 of that Act (22 U.S.C. 2291h); 

(4) section 502B of that Act (22 U.S.C. 2304); 

(5) section 634 of that Act (22 U.S.C. 2394); 

(6) section 406 of the Foreign Relations Authorization Act, 

Fiscal Years 1990 and 1991 (22 U.S.C. 2414a); 

(7) section 25 of the Arms Export Control Act (22 U.S.C. 

2765); 

(8) section 28 of that Act (22 U.S.C. 2768); 

(9) section 36 of that Act (22 U.S.C. 2776); 

(10) section 6 of the Multinational Force and Observers Participation Resolution (22 U.S.C. 3425); 

(11) section 104 of the FREEDOM Support Act (22 U.S.C. 

5814); 

(12) section 508 of that Act (22 U.S.C. 5858); 

(13) section 4 of the War Powers Resolution (50 U.S.C. 1543); 

(14) section 204 of the International Emergency Economic 

Powers Act (50 U.S.C. 1703); 

(15) section 14 of the Export Administration Act of 1979 (50 

U.S.C. App. 2413); 

(16) section 207 of the International Economic Policy Act of 

1972 (Public Law 92–412; 86 Stat. 648); 

(17) section 4 of Public Law 93–121 (87 Stat. 448); 

(18) section 108 of the National Security Act of 1947 (50 

U.S.C. 404a); 

(19) section 704 of the Support for East European Democracy 

(SEED) Act of 1989 (22 U.S.C. 5474); 

(20) section 804 of the Foreign Relations Authorization Act, 

Fiscal Years 1990 and 1991 (Public Law 101–246; 104 Stat. 

72); 

(21) section 140 of the Foreign Relations Authorization Act, 

Fiscal Years 1988 and 1989 (22 U.S.C. 2656f); 

(22) section 2 of the Act of September 21, 1950 (Chapter 976; 

64 Stat. 903); 

(23) section 3301 of the Panama Canal Act of 1979 (22 

U.S.C. 3871); 

(24) section 2202 of the Export Enhancement Act of 1988 (15 

U.S.C. 4711); 

(25) section 1504 of Public Law 103–160 (10 U.S.C. 402 

note); 

(26) section 502 of the International Security and Development Coordination Act of 1985 (22 U.S.C. 2349aa-7); 

(27) section 23 of the Act of August 1, 1956 (Chapter 841; 22 

U.S.C. 2694(2)); 

(28) section 5(c)(5) of the Export Administration Act of 1979 

(50 U.S.C. App. 2404(c)(5)); 

(29) section 14 of the Export Administration Act of 1979 (50 

U.S.C. App. 2413); 

(30) section 50 of Public Law 87–297 (22 U.S.C. 2590); 

(31) section 240A of the Foreign Assistance Act of 1961 (22 

U.S.C. 2200a); øor¿ 

(32) section 27(k) of the Consumer Product Safety Act (15 

U.S.C. 2076(k); or 

ø(32)¿ (33) section 604 of the United States Information and 

Educational Exchange Act of 1948 (22 U.S.C. 1469). 


wwoods2 on PRODPC68 with REPORTS
81 

FLAMMABLE FABRICS ACT 

SHORT TITLE

[15 U.S.C. 1191 note] 

SECTION 1. This Act may be cited as the ‘‘Flammable Fabrics 

Act’’. 

DEFINITIONS

[15 U.S.C. 1191] 

SEC. 2. As used in this Act—

(a) The term ‘‘person’’ means an individual, partnership, corporation, association, or any other form of business enterprise. 

(b) The term ‘‘commerce’’ means commerce among the several 

States or with foreign nations or in any territory of the United 

States or in the District of Columbia or between any such territory 

and another, or between any such territory and any State or foreign nation, or between the District of Columbia or the Commonwealth of Puerto Rico and any State or territory or foreign nation, 

or between the Commonwealth of Puerto Rico and any State or territory or foreign nation or the District of Columbia. 

(c) The term ‘‘territory’’ includes the insular possessions of the 

United States and also any territory of the United States. 

(d) The term ‘‘article of wearing apparel’’ means any costume or 

article of clothing worn or intended to be worn by individuals. 

(e) The term ‘‘interior furnishing’’ means any type of furnishing 

made in whole or in part of fabric or related material and intended 

for use or which may reasonably be expected to be used, in homes, 

offices, or other places of assembly or accommodation. 

(f) The term ‘‘fabric’’ means any material (except fiber, filament, 

or yarn for other than retail sale) woven, knitted, felted, or otherwise produced from or in combination with any natural or synthetic 

fiber, film, or substitute therefor which is intended for use or which 

may reasonably be expected to be used, in any product as defined 

in subsection (h). 

(g) The term ‘‘related material’’ means paper, plastic, rubber, 

synthetic film, or synthetic foam which is intended for use or which 

may reasonably be expected to be used in any product as defined 

in subsection (h). 

(h) The term ‘‘product’’ means any article of wearing apparel or 

interior furnishing. 

ø(i) The term ‘‘Commission’’ means the Federal Trade Commission.¿ 

(i) The term ‘‘Commission’’ means the Consumer Product Safety 

Commission. 

(j) The term ‘‘Federal Trade Commission Act’’ means the Act of 

Congress entitled ‘‘An Act to create a Federal Trade Commission, 

to define its powers and duties, and for other purposes’’ approved 

September 26, 1914, as amended. 

PROHIBITED TRANSACTIONS

[15 U.S.C. 1192] 

SEC. 3. (a) The manufacture for sale, the sale, or the offering for 

sale, in commerce, or the importation into the United States, or the 

introduction, delivery for introduction, transportation or causing to 


wwoods2 on PRODPC68 with REPORTS
82 

be transported, in commerce, or the sale or delivery after a sale or 

shipment in commerce, of any product, fabric, or related material 

which fails to conform to an applicable standard or regulation 

issued or amended under the provisions of section 4 of this Act, 

shall be unlawful and shall be an unfair method of competition and 

an unfair and deceptive act or practice in commerce under the Federal Trade Commission Act. 

(b) The manufacture for sale, the sale, or the offering for sale, of 

any product made of fabric or related material which fails to conform to an applicable standard or regulation issued or amended 

under section 4 of this Act, and which has been shipped or received 

in commerce shall be unlawful and shall be an unfair method of 

competition and an unfair and deceptive act or practice in commerce under the Federal Trade Commission Act. 

REGULATION OF FLAMMABLE FABRICS

[15 U.S.C. 1193] 

SEC. 4. (a) Whenever the øSecretary of Commerce¿ Commission 

finds on the basis of the investigations or research conducted pursuant to section 14 of this Act that a new or amended flammability 

standard or other regulation, including labeling, for a fabric, related material, or product may be needed to protect the public 

against unreasonable risk of the occurrence of fire leading to death 

or personal injury, or significant property damage, øhe¿ it shall institute proceedings for the determination of an appropriate flammability standard (including conditions and manner of testing) or 

other regulation or amendment thereto for such fabric, related material, or product. 

(b) Each standard, regulation, or amendment thereto promulgated pursuant to this section shall be based on findings that such 

standard, regulation, or amendment thereto is needed to adequately protect the public against unreasonable risk of the occurrence of fire leading to death, injury, or significant property damage, is reasonable, technologically practicable, and appropriate, is 

limited to such fabrics, related materials, or products which have 

been determined to present such unreasonable risks, and shall be 

stated in objective terms. Each such standard, regulation, or 

amendment thereto, shall become effective twelve months from the 

date on which such standard, regulation, or amendment is promulgated, unless the øSecretary of Commerce¿ Commission finds for 

good cause shown that an earlier or later effective date is in the 

public interest and publishes the reason for such finding. Each 

such standard or regulation or amendment thereto shall exempt 

fabrics, related materials, or products in inventory or with the 

trade as of the date on which the standard, regulation, or amendment thereto, becomes effective except that, if the øSecretary¿ 

Commission finds that any such fabric, related material, or product 

is so highly flammable as to be dangerous when used by consumers 

for the purpose for which it is intended, øhe¿ it may under such 

conditions as the øSecretary¿ Commission may prescribe, withdraw, or limit the exemption for such fabric, related material, or 

product. 

(c) The øSecretary of Commerce¿ Commission may obtain from 

any person by regulation or subpena issued pursuant thereto such 

information in the form of testimony, books, records, or other 


wwoods2 on PRODPC68 with REPORTS
83 

writings as is pertinent to the findings or determinations which 

øhe¿ it is required or authorized to make pursuant to this Act. All 

information reported to or otherwise obtained by the øSecretary¿ 

Commission or øhis¿ its representative pursuant to this subsection 

which information contains or relates to a trade secret or other 

matter referred to in section 1905 of title 18 of the United States 

Code, shall be considered confidential for the purpose of that section, except that such information may be disclosed to other officers 

or employees concerned with carrying out this Act or when relevant 

in any proceeding under this Act. Nothing in this section shall authorize the withholding of information by the øSecretary¿ Commission or any officer or employee under øhis¿ its control, from the 

duly authorized committees of the Congress. 

(d) Standards, regulations, and amendments to standards and 

regulations under this section shall be made in accordance with 

section 553 of title 5, United States Code, except that interested 

persons shall be given an opportunity for the oral presentation of 

data, views, or arguments in addition to an opportunity to make 

written submissions. A transcript shall be kept of any oral presentation. 

(e)(1) Any person who will be adversely affected by any such 

standard or regulation or amendment thereto when it is effective 

may at any time prior to the sixtieth day after such standard or 

regulation or amendment thereto is issued file a petition with the 

United States court of appeals for the circuit wherein such person 

resides or has his principal place of business, for a judicial review 

thereof. A copy of the petition shall be forthwith transmitted by the 

clerk of the court to the øSecretary¿ Commission or other officer 

designated by øhim¿ it for that purpose. The øSecretary¿ Commission thereupon shall file in the court the record of the proceedings 

on which the øSecretary¿ Commission based the standard or regulation, as provided in section 2112 of title 28 of the United States 

Code. 

(2) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such 

additional evidence is material and that there were reasonable 

grounds for the failure to adduce such evidence in the proceeding 

before the øSecretary¿ Commission, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before 

the øSecretary¿ Commission, and to be adduced upon the hearing, 

in such manner and upon such terms and conditions as to the court 

may seem proper. The øSecretary¿ Commission may modify øhis¿ 

its findings or make new findings, by reason of the additional evidence so taken, and øhe¿ it shall file such modified or new findings, and øhis¿ its recommendations, if any, for the modification or 

setting aside of øhis¿ its original standard or regulation or amendment thereto, with the return of such additional evidence. 

(3) Upon the filing of the petition referred to in paragraph (1) of 

this subsection, the court shall have jurisdiction to review the 

standard or regulation in accordance with chapter 7 of title 5 of the 

United States Code and to grant appropriate relief as provided in 

such chapter. The standard or regulation shall not be affirmed unless the findings required by the first sentence of subsection (b) are 

supported by substantial evidence on the record taken as a whole. 

For purposes of this paragraph, the term ‘‘record’’ means the standVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00085 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
84 

ard or regulation, any notice published with respect to the promulgation of such standard or regulation, the transcript required by 

subsection (d) of any oral presentation, any written submission of 

interested parties, and any other information which the Commission considers relevant to such standard or regulation. 

(4) The judgment of the court affirming or setting aside, in whole 

or in part, any such standard or regulation of the øSecretary¿ Commission shall be final, subject to review by the Supreme Court of 

the United States upon certiorari or certification as provided in section 1254 of title 28 of the United States Code. 

ø(5) Any action instituted under this subsection shall survive, 

notwithstanding any change in the person occupying the office of 

Secretary or any vacancy in such office.¿ 

ø(6)¿ (5) The remedies provided for in this subsection shall be in 

addition to and not in substitution for any other remedies provided 

by law. 

(f) A certified copy of the transcript of the record and proceedings 

under subsection (e) shall be furnished by the øSecretary¿ Commission to any interested party at his request, and payment of the 

costs thereof, and shall be admissible in any criminal, exclusion of 

imports, or other proceeding arising under or in respect of this Act, 

irrespective of whether proceedings with respect to the standard or 

regulation or amendment thereto have previously been initiated or 

become final under subsection (e). 

(g) A proceeding for the promulgation of a regulation under this 

section for a fabric, related material, or product øshall be commenced¿ may be commenced by a notice of proposed rulemaking or 

by the publication in the Federal Register of an advance notice of 

proposed rulemaking which shall— (1) identify the fabric, related material, or product and the 

nature of the risk of injury associated with the fabric, related 

material, or product; 

(2) include a summary of each of the regulatory alternatives 

under consideration by the Commission (including voluntary 

standards); 

(3) include information with respect to any existing standard 

known to the Commission which may be relevant to the proceedings, together with a summary of the reasons why the 

Commission believes preliminarily that such standard does not 

eliminate or adequately reduce the risk of injury identified in 

paragraph (1); 

(4) invite interested persons to submit to the Commission, 

within such period as the Commission shall specify in the notice (which period shall not be less than 30 days or more than 

60 days after the date of publication of the notice), comments 

with respect to the risk of injury identified by the Commission, 

the regulatory alternatives being considered, and other possible alternatives for addressing the risk; 

(5) invite any person (other than the Commission) to submit 

to the Commission, within such period as the Commission shall 

specify in the notice (which period shall not be less than 30 

days after the date of publication of the notice), an existing 

standard or a portion of a standard as a proposed regulation. 

(6) invite any person (other than the Commission) to submit 

to the Commission, within such period as the Commission shall 


wwoods2 on PRODPC68 with REPORTS
85 

specify in the notice (which period shall not be less than 30 

days after the date of publication of the notice), a statement of 

intention to modify or develop a voluntary standard to address 

the risk of injury identified in paragraph (1) together with a 

description of a plan to modify or develop the standard. 

The Commission shall transmit such notice within 10 calendar 

days to the Committee on Commerce, Science, and Transportation 

of the Senate and the Committee on Energy and Commerce of the 

House of Representatives. 

(h)(1) If the Commission determines that any standard submitted 

to it in response to an invitation in a notice published under subsection (g)(5) if promulgated (in whole, in part, or in combination 

with any other standard submitted to the Commission or any part 

of such a standard) as a regulation, would eliminate or adequately 

reduce the risk of injury identified in the notice provided under 

subsection (g)(1), the Commission may publish such standard, in 

whole, in part, or in such combination and with nonmaterial modifications, as a proposed regulation under this section. 

(2) If the Commission determines that—

(A) compliance with any standard submitted to it in response 

to an invitation in a notice published under subsection (g)(6) 

is likely to result in the elimination or adequate reduction of 

the risk of injury identified in the notice, and 

(B) it is likely that there will be substantial compliance with 

such standard, 

the Commission shall terminate any proceeding to promulgate a 

regulation respecting such risk of injury and shall publish in the 

Federal Register a notice which includes the determination of the 

Commission and which notifies the public that the Commission will 

rely on the voluntary standard to eliminate or reduce the risk of 

injury, except that the Commission shall terminate any such proceeding and rely on a voluntary standard only if such voluntary 

standard is in existence. For purposes of this section, a voluntary 

standard shall be considered to be in existence when it is finally 

approved by the organization or other person which developed such 

standard, irrespective of the effective date of the standard. Before 

relying upon any voluntary consumer product safety standard, the 

Commission shall afford interested persons (including manufacturers, consumers, and consumer organizations) a reasonable opportunity to submit written comments regarding such standard. The 

Commission shall consider such comments in making any determination regarding reliance on the involved voluntary standard 

under this subsection. 

(3) The Commission shall devise procedures to monitor compliance with any voluntary standards—

(A) upon which the Commission has relied under paragraph 

(2) of this subsection; 

(B) which were developed with the participation of the Commission; or 

(C) whose development the Commission has monitored. 

(i) No regulation may be proposed by the Commission under this 

section øunless, not less than 60 days after publication of the notice 

required in subsection (g), the¿ unless the Commission publishes in 

the Federal Register the text of the proposed rule, including any 


wwoods2 on PRODPC68 with REPORTS
86 

alternatives, which the Commission proposes to promulgate, together with a preliminary regulatory analysis containing—

(1) a preliminary description of the potential benefits and potential costs of the proposed regulation, including any benefits 

or costs that cannot be quantified in monetary terms, and an 

identification of those likely to receive the benefits and bear 

the costs; 

(2) a discussion of the reasons any standard or portion of a 

standard submitted to the Commission under subsection (g)(5) 

was not published by the Commission as the proposed regulation or part of the proposed regulation; 

(3) a discussion of the reasons for the Commission’s preliminary determination that efforts proposed under subsection 

(g)(6) and assisted by the Commission as required by section 

5(a)(3) of the Consumer Product Safety Act would not, within 

a reasonable period of time, be likely to result in the development of a voluntary standard that would eliminate or adequately reduce the risk of injury identified in the notice provided under subsection (g)(1); and 

(4) a description of any reasonable alternatives to the proposed regulation, together with a summary description of their 

potential costs and benefits, and a brief explanation of why 

such alternatives should not be published as a proposed regulation. 

The Commission shall transmit such notice within 10 calendar 

days to the Committee on Commerce, Science, and Transportation 

of the Senate and the Committee on Energy and Commerce of the 

House of Representatives. 

(j)(1) The Commission shall not promulgate a regulation under 

this section unless it has prepared a final regulatory analysis of the 

regulation containing the following information: 

(A) A description of the potential benefits and potential costs 

of the regulation, including costs and benefits that cannot be 

quantified in monetary terms, and the identification of those 

likely to receive the benefits and bear the costs. 

(B) A description of any alternatives to the final regulation 

which were considered by the Commission, together with a 

summary description of their potential benefits and costs and 

brief explanation of the reasons why these alternatives were 

not chosen. 

(C) A summary of any significant issues raised by the comments submitted during the public comment period in response 

to the preliminary regulatory analysis, and a summary of the 

assessment by the Commission of such issues. 

The Commission shall publish its final regulatory analysis with the 

regulation. 

(2) The Commission shall not promulgate a regulation under this 

section unless it finds (and includes such finding in the regulation)—

(A) in the case of a regulation which relates to a risk of injury with respect to which persons who would be subject to 

such regulation have adopted and implemented a voluntary 

standard, that—


wwoods2 on PRODPC68 with REPORTS
87 

(i) compliance with such voluntary standard is not likely 

to result in the elimination or adequate reduction of such 

risk of injury; or 

(ii) it is unlikely that there will be substantial compliance with such voluntary standard; 

(B) that the benefits expected from the regulation bear a reasonable relationship to its costs; and 

(C) that the regulation imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the regulation is being promulgated. 

(3)(A) Any regulatory analysis prepared under subsection (i) or 

paragraph (1) shall not be subject to independent judicial review, 

except that when an action for judicial review of a regulation is instituted, the contents of any such regulatory analysis shall constitute part of the whole rulemaking record of agency action in connection with such review. 

(B) The provisions of subparagraph (A) shall not be construed to 

alter the substantive or procedural standards otherwise applicable 

to judicial review of any action by the Commission. 

(k) The Commission shall grant, in whole or in part, or deny any 

petition under section 553(e) of title 5, United States Code, requesting the Commission to initiate a rulemaking, within a reasonable 

time after the date on which such petition is filed. The Commission 

shall state the reasons for granting or denying such petition. The 

Commission may not deny any such petition on the basis of a voluntary standard unless the voluntary standard is in existence at 

the time of the denial of the petition, the Commission has determined that the voluntary standard is likely to result in the elimination or adequate reduction of the risk of injury identified in the 

petition, and it is likely that there will be substantial compliance 

with the standard. 

ADMINISTRATION AND ENFORCEMENT

[15 U.S.C. 1194] 

SEC. 5. (a) Except as otherwise specifically provided herein, sections 3, 5, 6, and 8(b) of this Act shall be enforced by the Commission under rules, regulations and procedures provided for in the 

Federal Trade Commission Act. In the case of an attorney general 

of a State alleging a violation of a standard or regulation under 

section 4 that affects or may affect such State or its residents, such 

attorney general may bring a civil action for an injunction to enforce the requirement of such standard or regulation. The procedural requirements of section 24 of the Consumer Product Safety 

Act shall apply to any such action. 

(b) The Commission is authorized and directed to prevent any 

person from violating the provisions of section 3 of this Act in the 

same manner, by the same means and with the same jurisdiction, 

powers and duties as though all applicable terms and provisions of 

the Federal Trade Commission Act were incorporated into and 

made a part of this Act; and any such person violating any provision of section 3 of this Act shall be subject to the penalties and 

entitled to the privileges and immunities provided in said Federal 

Trade Commission Act as though the applicable terms and provisions of the said Federal Trade Commission Act were incorporated 

into and made a part of this Act. 


wwoods2 on PRODPC68 with REPORTS
88 

(c) The Commission is authorized and directed to prescribe such 

rules and regulations, including provisions for maintenance of 

records relating to fabrics, related materials, and products, as may 

be necessary and proper for administration and enforcement of this 

Act. The violation of such rules and regulations shall be unlawful 

and shall be an unfair method of competition and an unfair and deceptive act or practice, in commerce, under the Federal Trade Commission Act. 

(d) The Commission is authorized to— (1) cause inspections, analyses, tests, and examinations to be 

made of any product, fabric or related material which it has 

reason to believe falls within the prohibitions of this Act; and 

(2) cooperate on matters related to the purposes of this Act 

with any department or agency of the Government; with any 

State or territory or with the District of Columbia or the Commonwealth of Puerto Rico; or with any department, agency, or 

political subdivision thereof; or with any person. 

(e)(1) Any person who knowingly violates a regulation or standard under section 4 shall be subject to a civil penalty not to exceed 

ø$5,000¿ $250,000 for each such violation, except that the maximum civil penalty shall not exceed ø$1,250,000¿ $100,000,000 for 

any related series of violations. 

(2) In determining the amount of any penalty to be sought upon 

commencing an action seeking to assess a penalty for a violation 

of a regulation or standard under section 4, the Commission shall 

consider the nature and number of the violations, the severity of 

the risk of injury, the occurrence or absence of injury, and the appropriateness of such penalty in relation to the size of the business 

of the person charged. 

(3) Any civil penalty under this subsection may be compromised 

by the Commission. In determining the amount of such penalty or 

whether it should be remitted or mitigated, and in what amount, 

the Commission shall consider the nature and number of the violations, the appropriateness of such penalty to the size of the business of the persons charged, the severity of the risk of injury, and 

the occurrence or absence of injury. The amount of such penalty 

when finally determined, or the amount agreed on compromise, 

may be deducted from any sums owing by the United States to the 

person charged. 

(4) As used in paragraph (1), the term ‘‘knowingly’’ means (A) 

having actual knowledge, or (B) the presumed having of knowledge 

deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtainable upon the exercise of 

due care to ascertain the truth of representations. 

(5)(A) The maximum penalty amounts authorized in paragraph 

(1) shall be adjusted for inflation as provided in this paragraph. 

(B) Not later than øDecember 1, 1994,¿ December 1, 2011, and 

December 1 of each fifth calendar year thereafter, the Commission 

shall prescribe and publish in the Federal Register a schedule of 

maximum authorized penalties that shall apply for violations that 

occur after January 1 of the year immediately following such publication. 

(C) The schedule of maximum authorized penalties shall be prescribed by increasing each of the amounts referred to in paragraph 

(1) by the cost-of-living adjustment for the preceding five years. 


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Any increase determined under the preceding sentence shall be 

rounded to— (i) in the case of penalties greater than $1,000 but less than or equal to $10,000, the nearest multiple of $1,000; (ii) in the case of penalties greater than $10,000 but less than or equal to $100,000, the nearest multiple of $5,000; (iii) in the case of penalties greater than $100,000 but less than or equal to $200,000, the nearest multiple of $10,000; and (iv) in the case of penalties greater than $200,000, the near- est multiple of $25,000. 

(D) For purposes of this subsection: 

(i) The term ‘‘Consumer Price Index’’ means the Consumer 

Price Index for all-urban consumers published by the Department of Labor. 

(ii) The term ‘‘cost-of-living adjustment for the preceding five 

years’’ means the percentage by which— (I) the Consumer Price Index for the month of June of 

the calendar year preceding the adjustment; exceeds 

(II) the Consumer Price Index for the month of June preceding the date on which the maximum authorized penalty 

was last adjusted. 

* * * * * * * 

PENALTIES

[15 U.S.C. 1196] 

øSEC. 7. Any person who willfully violates section 3 or 8(b) of this 

Act, or who fails to comply with section 15(c) of this Act, shall be 

guilty of a misdemeanor, and upon conviction thereof shall be fined 

not more than $5,000 or be imprisoned not more than one year or 

both in the discretion of the court: Provided, That nothing herein 

shall limit other provisions of this Act.¿ 

SEC. 7. Violation of section 3 or 8(b) of this Act, or failure to comply with section 15(c) of this Act, is punishable by— (1) imprisonment for not more than— (A) 1 year for a knowing violation of that section; or 

(B) 5 years for a knowing and willful violation of that 

section; and 

(2) a fine determined under section 3571 of title 18, United 

States Code. 

* * * * * * * 

INVESTIGATIONS

[15 U.S.C. 1201] 

SEC. 14. (a) The Secretary of Health, Education, and Welfare in 

cooperation with the øSecretary of Commerce¿ Commission shall 

conduct a continuing study and investigation of the deaths, injuries, and economic losses resulting from accidental burning of products, fabrics, or related materials. 

(b) In cooperation with appropriate public and private agencies, 

the øSecretary of Commerce¿ Commission is authorized to—

(1) conduct research into the flammability of products, fabrics, and materials; 

(2) conduct feasibility studies on reduction of flammability of 

products, fabrics, and materials; 


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(3) develop flammability test methods and testing devices; 

and 

(4) offer appropriate training in the use of flammability test 

methods and testing devices.5 

EXPORTS

[15 U.S.C. 1202] 

SEC. 15. (a) This Act shall not apply to any fabric, related material, or product which is to be exported from the United States, if 

such fabric, related material, or product, and any container in 

which it is enclosed, bears a stamp or label stating that such fabric, 

related material, or product is intended for export and such fabric, 

related material, or product is in fact exported from the United 

States; unless the øConsumer Product Safety Commission (hereinafter in this section referred to as the ‘‘Commission’’)¿ Commission 

determines that exportation of such fabric, related material, or 

product presents an unreasonable risk of injury to persons residing 

within the United States; except that this Act shall apply to any 

fabric, related material, or product manufactured for sale, offered 

for sale, or intended for shipment to any installation of the United 

States located outside of the United States. 

(b) This Act shall not apply to any fabric, related material, or 

product which is imported into the United States for dyeing, finishing, other processing, or storage in bond, and export from the 

United States, if such fabric, related material, or product, any container in which it is enclosed, bears a stamp or label stating that 

such fabric, related material, or product is intended for export, and 

such fabric, related material, or product is in fact exported from the 

United States, unless the Commission determines that exportation 

of such fabric, related material, or product presents an unreasonable risk of injury to persons residing within the United States; except that this Act shall apply to any such imported fabric, related 

material, or product manufactured for sale, offered for sale, or intended for shipment to any installation of the United States located 

outside of the United States. 

(c) Not less than thirty days before any person exports to a foreign country any fabric, related material, or product that fails to 

conform to an applicable flammability standard or regulation in effect under this Act, such person shall file a statement with the 

Commission notifying the Commission of such exportation, and the 

Commission, upon receipt of such statement, shall promptly notify 

the government of such country of such exportation and the basis 

for such flammability standard or regulation. Any statement filed 

with the Commission under the preceding sentence shall specify 

the anticipated date of shipment of such fabric, related material, or 

product, the country and port of destination of such fabric, related 

material, or product, and the quantity of such fabric, related material, or product that will be exported, and shall contain such other 

information as the Commission may by regulation require. Upon 

petition filed with the Commission by any person required to file 

a statement under this subsection respecting an exportation, the 

Commission may, for good cause shown, exempt such person from 

the requirement of this subsection that such a statement be filed 

in no less than thirty days before the date of the exportation, exVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00092 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

wwoods2 on PRODPC68 with REPORTS
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cept that in no case shall the Commission permit such a statement 

to be filed later than the tenth day before such date. 

(d) Notwithstanding any other provision of law, the Consumer 

Product Safety Commission may prohibit a person from exporting 

from the United States for purpose of sale any fabric, related material, or product that the Commission determines, after notice to the 

manufacturer— (1) is not in conformity with an applicable consumer product 

safety standard under the Consumer Product Safety Act or with 

a rule under this Act; 

(2) is subject to an order issued under section 12 or 15 of the 

Consumer Product Safety Act or designated as a banned hazardous substance under the Federal Hazardous Substances Act 

(15 U.S.C. 1261 et seq.); or 

(3) is subject to voluntary corrective action taken by the manufacturer, in consultation with the Commission, of which action 

the Commission has notified the public and that would have 

been subject to mandatory corrective action under this or another Act enforced by the Commission if voluntary corrective action had not been taken by the manufacturer. 

PREEMPTION

[15 U.S.C. 1203] 

SEC. 16. (a) Except as provided in subsections (b) and (c), whenever a flammability standard or other regulation for a fabric, related material, or product is in effect under this Act, no State or 

political subdivision of a State may establish or continue in effect 

a flammability standard or other regulation for such fabric, related 

material, or product if the standard or other regulation is designed 

to protect against the same risk of occurrence of fire with respect 

to which the standard or other regulation under this Act is in effect 

unless the State or political subdivision standard or other regulation is identical to the Federal standard or other regulation. 

(b) The Federal Government and the government of any State or 

political subdivision of a State may establish and continue in effect 

a flammability standard or other regulation applicable to a fabric, 

related material, or product for its own use which standard or 

other regulation is designed to protect against a risk of occurrence 

of fire with respect to which a flammability standard or other regulation is in effect under this Act and which is not identical to such 

standard or other regulation if the Federal, State, or political subdivision standard or other regulation provides a higher degree of 

protection from such risk of occurrence of fire than the standard or 

other regulation in effect under this Act. 

(c)(1) Upon application of a State or political subdivision of a 

State, the Commission may, by regulation promulgated in accordance with paragraph (2), exempt from subsection (a), under such 

conditions as may be prescribed in such regulation, any flammability standard or other regulation of such State or political subdivision applicable to a fabric, related material, or product subject 

to a standard or other regulation in effect under this Act, if—

(A) compliance with the State or political subdivision requirement would not cause the fabric, related material, or 

product to be in violation of the standard or other regulation 

in effect under this Act, and 


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(B) the State or political subdivision standard or other regulation (i) provides a significantly higher degree of protection 

from the risk of occurrence of fire with respect to which the 

Federal standard or other regulation is in effect, and (ii) does 

not unduly burden interstate commerce. 

In determining the burden, if any, of a State or political subdivision flammability standard or other regulation on interstate commerce the Commission shall consider and make appropriate (as determined by the Commission in its discretion) findings on the technological and economic feasibility of complying with such flammability standard or other regulation, the cost of complying with such 

flammability standard or other regulation, the geographic distribution of the fabric, related material, or product to which the flammability standard or other regulation would apply, the probability of 

other States or political subdivisions applying for an exemption 

under this subsection for a similar flammability standard or other 

regulation, and the need for a national, uniform flammability 

standard or other regulation under this Act for such fabric, related 

material, or product. 

(2) A regulation under paragraph (1) granting an exemption for 

a flammability standard or other regulation of a State or political 

subdivision of a State may be promulgated by the Commission only 

after it has provided, in accordance with section 553(b) of title 5, 

United States Code, notice with respect to the promulgation of the 

regulation and has provided opportunity for the oral presentation 

of views respecting its promulgation. 

ø(d) For purposes of this section—

ø(1) a reference to a flammability standard or other regulation for a fabric, related material, or product in effect under 

this Act includes a standard of flammability continued in effect 

by section 11 of the Act of December 14, 1967 (Public Law 90–

189); and 

ø(2) the term ‘‘Commission’’ means the Consumer Product 

Safety Commission.¿ 

(d) In this section, a reference to a flammability standard or other 

regulation for a fabric, related material, or product in effect under 

this Act includes a standard of flammability continued in effect by 

section 11 of the Act of December 14, 1967 (Public Law 90–189). 

POISON PREVENTION PACKAGING ACT OF 1970 

* * * * * * * 

[SPECIAL PACKAGING STANDARDS]

[15 U.S.C. 1472] 

SEC. 3. (a) The Secretary, may establish in accordance with the 

provisions of this Act, by regulation, standards for the special packaging of any household substance if he finds that—

(1) the degree or nature of the hazard to children in the 

availability of such substance, by reason of its packaging, is 

such that special packaging is required to protect children from 

serious personal injury or serious illness resulting from handling, using, or ingesting such substance; and 


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93 

(2) the special packaging to be required by such standard is 

technically feasible, practicable, and appropriate for such substance. 

(b) In establishing a standard under this section, the Secretary 

shall consider—

(1) the reasonableness of such standard; 

(2) available scientific, medical, and engineering data concerning special packaging and concerning childhood accidental 

ingestions, illness, and injury caused by household substances; 

(3) the manufacturing practices of industries affected by this 

Act; and 

(4) the nature and use of the household substance. 

(c) In carrying out this Act, the Secretary shall publish his findings, his reasons therefor, and citation of the sections of statutes 

which authorize his action. 

(d) Nothing in this Act shall authorize the Secretary to prescribe 

specific packaging designs, product content, package quantity, or, 

with the exception of authority granted in section 4(a)(2) of this 

Act, labeling. In the case of a household substance for which special 

packaging is required pursuant to a regulation under this section, 

the Secretary may in such regulation prohibit the packaging of 

such substance in packages which he determines are unnecessarily 

attractive to children. 

(e) Nothing in this Act shall be construed to require the Secretary, 

in establishing a standard under this section, to prepare a comparison of the costs that would be incurred in complying with such 

standard with the benefits of such standard. 

FEDERAL HAZARDOUS SUBSTANCES ACT 

SHORT TITLE

[15 U.S.C. 1261 note] 

SECTION 1. This Act may be cited as the ‘‘Federal Hazardous 

Substances Act’’. 

DEFINITIONS

[15 U.S.C. 1261] 

SEC. 2. For the purposes of this Act—

(a) The term ‘‘territory’’ means any territory or possession of the 

United States, including the District of Columbia and the Commonwealth of Puerto Rico but excluding the Canal Zone. 

(b) The term ‘‘interstate commerce’’ means (1) commerce between 

any State or territory and any place outside thereof, and (2) commerce within the District of Columbia or within any territory not 

organized with a legislative body. 

ø(c) The term ‘‘Department’’ means the Department of Health, 

Education, and Welfare.¿ 

ø(d) The term ‘‘Secretary’’ means the Secretary of Health, Education, and Welfare.¿ 

(c) The term ‘‘Commission’’ means the Consumer Product Safety 

Commission. 

(e) The term ‘‘person’’ includes an individual, partnership, corporation, and association. 

(f) The term ‘‘hazardous substance’’ means: 


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1. (A) Any substance or mixture of substances which (i) is 

toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) generates pressure through decomposition, heat, or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or 

use, including reasonably foreseeable ingestion by children. 

(B) Any substances which the øSecretary¿ Commission by 

regulation finds, pursuant to the provisions of section 3(a), 

meet the requirements of subparagraph 1(A) of this paragraph. 

(C) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, 

the øSecretary¿ Commission determines by regulation that the 

substance is sufficiently hazardous to require labeling in accordance with this Act in order to protect the public health. 

(D) Any toy or other article intended for use by children 

which the øSecretary¿ Commission by regulation determines, 

in accordance with section 3(e) of this Act, presents an electrical, mechanical, or thermal hazard. 

(E) Any solder which has a lead content in excess of 0.2 percent. 

2. The term ‘‘hazardous substance’’ shall not apply to pesticides subject to the Federal Insecticide, Fungicide, and 

Rodenticide Act, nor to foods, drugs, and cosmetics subject to 

the Federal Food, Drug, and Cosmetic Act, nor to substances 

intended for use as fuels when stored in containers and used 

in the heating, cooking, or refrigeration system of a house, nor 

to tobacco and tobacco products, but such term shall apply to 

any article which is not itself a pesticide within the meaning 

of the Federal Insecticide, Fungicide, and Rodenticide Act but 

which is a hazardous substance within the meaning of subparagraph 1 of this paragraph by reason of bearing or containing such an economic poison. 

3. The term ‘‘hazardous substance’’ shall not include any 

source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended, 

and regulations issued pursuant thereto by the Atomic Energy 

Commission. 

(g) The term ‘‘toxic’’ shall apply to any substance (other than a 

radioactive substance) which has the capacity to produce personal 

injury or illness to man through ingestion, inhalation, or absorption 

through any body surface. 

(h)(1) The term ‘‘highly toxic’’ means any substance which falls 

within any of the following categories: (a) Produces death within 

fourteen days in half or more than half of a group of ten or more 

laboratory white rats each weighing between two hundred and 

three hundred grams, at a single dose of fifty milligrams or less per 

kilogram of body weight, when orally administered; or (b) produces 

death within fourteen days in half or more than half of a group of 

ten or more laboratory white rats each weighing between two hundred and three hundred grams, when inhaled continuously for a period of one hour or less at an atmospheric concentration of two 

hundred parts per million by volume or less of gas or vapor or two 

milligrams per liter by volume or less of mist or dust, provided 


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such concentration is likely to be encountered by man when the 

substance is used in any reasonably foreseeable manner; or (c) produces death within fourteen days in half or more than half of a 

group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, when administered by 

continuous contact with the bare skin for twenty-four hours or less. 

(2) If the øSecretary¿ Commission finds that available data on 

human experience with any substance indicate results different 

from those obtained on animals in the above-named dosages or concentrations, the human data shall take precedence. 

(i) The term ‘‘corrosive’’ means any substance which in contact 

with living tissue will cause destruction of tissue by chemical action; but shall not refer to action on inanimate surfaces. 

(j) The term ‘‘irritant’’ means any substance not corrosive within 

the meaning of subparagraph (i) which on immediate, prolonged, or 

repeated contact with normal living tissue will induce a local inflammatory reaction. 

(k) The term ‘‘strong sensitizer’’ means a substance which will 

cause on normal living tissue through an allergic or photodynamic 

process a hypersensitivity which becomes evident on reapplication 

of the same substance and which is designated as such by the øSecretary¿ Commission. Before designating any substance as a strong 

sensitizer, the øSecretary¿ Commission, upon consideration of the 

frequency of occurrence and severity of the reaction, shall find that 

the substance has a significant potential for causing hypersensitivity. 

(l)(1) The terms ‘‘extremely flammable’’, ‘‘flammable’’, and ‘‘combustible’’ as applied to any substance, liquid, solid, or the content 

of a self-publicized container shall be defined by regulations issued 

by the Commission. 

(2) The test methods found by the Commission to be generally 

applicable for defining the flammability or combustibility characteristics of any such substance shall also be specified in such regulations. 

(3) In establishing definitions and test methods related to flammability and combustibility, the Commission shall consider the existing definitions and test methods of other Federal agencies involved in the regulation of flammable and combustible substances 

in storage, transportation and use; and to the extent possible, shall 

establish compatible definitions and test methods. 

(4) Until such time as the Commission issues a regulation under 

paragraph (1) defining the term ‘‘combustible’’ as applied to liquids, 

such term shall apply to any liquid which has a flash point above 

eighty degrees Fahrenheit to and including one hundred and fifty 

degrees, as determined by the Tagliabue Open Cup Tester. 

(m) The term ‘‘radioactive substance’’ means a substance which 

emits ionizing radiation. 

(n) The term ‘‘label’’ means a display of written, printed, or 

graphic matter upon the immediate container of any substance or, 

in the case of an article which is unpackaged or is not packaged 

in an immediate container intended or suitable for delivery to the 

ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed thereto; and a requirement made by or under authority of this Act that 

any word, statement, or other information appearing on the label 


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shall not be considered to be complied with unless such word, 

statement, or other information also appears (1) on the outside container or wrapper, if any there be, unless it is easily legible 

through the outside container or wrapper and (2) on all accompanying literature where there are directions for use, written or 

otherwise. 

(o) The term ‘‘immediate container’’ does not include package liners. 

(p) The term ‘‘misbranded hazardous substance’’ means a hazardous substance (including a toy, or other article intended for use 

by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible 

of access by a child to whom such toy or other article is entrusted) 

intended, or packaged in a form suitable, for use in the household 

or by children, if the packaging or labeling of such substance is in 

violation of an applicable regulation issued pursuant to section 3 

or 4 of the Poison Prevention Packaging Act of 1970 or if such substance, except as otherwise provided by or pursuant to section 3, 

fails to bear a label— (1) which states conspicuously (A) the name and place of 

business of the manufacturer, packer, distributor or seller; (B) 

the common or usual name or the chemical name (if there be 

no common or usual name) of the hazardous substance or of 

each component which contributes substantially to its hazard, 

unless the øSecretary¿ Commission by regulation permits or 

requires the use of a recognized generic name; (C) the signal 

word ‘‘DANGER’’ on substances which are extremely flammable, corrosive, or highly toxic, (D) the signal word ‘‘WARNING’’ or ‘‘CAUTION’’ on all other hazardous substances; (E) an 

affirmative statement of the principal hazard or hazards, such 

as ‘‘Flammable’’, ‘‘Combustible,’’ ‘‘Vapor Harmful’’, ‘‘Causes 

Burns’’, ‘‘Absorbed Through Skin’’, or similar wording descriptive of the hazard; (F) precautionary measures describing the 

action to be followed or avoided, except when modified by regulation of the øSecretary¿ Commission pursuant to section 3; 

(G) instruction, when necessary or appropriate, for first-aid 

treatment; (H) the word ‘‘poison’’ for any hazardous substance 

which is defined as ‘‘highly toxic’’ by subsection (h); (I) instructions for handling and storage of packages which require special care in handling or storage; and (J) the statement (i) ‘‘Keep 

out of the reach of children’’ or its practical equivalent, or, (ii) 

if the article is intended for use by children and is not a 

banned hazardous substance, adequate directions for the protection of children from the hazard, and 

(2) on which any statements required under subparagraph 

(1) of this paragraph are located prominently and are in the 

English language in conspicuous and legible type in contrast 

by typography, layout, or color with other printed matter on 

the label. 

The term ‘‘misbranded hazardous substance’’ also includes a household substance as defined in section 2(2)(D) of the Poison Prevention Packaging Act of 1970 if it is a substance described in paragraph 1 of section 2(f) of this Act and its packaging or labeling is 

in violation of an applicable regulation issued pursuant to section 

3 or 4 of the Poison Prevention Packaging Act of 1970. 


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(q)(1) The term ‘‘banned hazardous substance’’ means (A) any 

toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to 

whom such toy or other article is entrusted; or (B) any hazardous 

substance intended, or packaged in a form suitable, for use in the 

household, which the øSecretary¿ Commission by regulation classifies as a ‘‘banned hazardous substance’’ on the basis of a finding 

that, notwithstanding such cautionary labeling as is or may be required under this Act for that substance, the degree or nature of 

the hazard involved in the presence or use of such substance in 

households is such that the objective of the protection of the public 

health and safety can be adequately served only by keeping such 

substance, when so intended or packaged, out of the channels of 

interstate commerce: Provided, That the øSecretary¿ Commission, by regulation, (i) shall exempt from clause (A) of this paragraph articles, such as chemical sets, which by reason of their functional 

purpose require the inclusion of the hazardous substance involved, 

or necessarily present an electrical, mechanical, or thermal hazard 

and which bear labeling giving adequate directions and warnings 

for safe use and are intended for use by children who have attained 

sufficient maturity, and may reasonably be expected, to read and 

heed such directions and warnings, and (ii) shall exempt from 

clause (A), and provide for the labeling of, common fireworks (including toy paper caps, cone fountains, cylinder fountains, whistles 

without report, and sparklers) to the extent that øhe¿ it determines 

that such articles can be adequately labeled to protect the purchasers and users thereof. 

(2) øProceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of subparagraph (1) of this paragraph shall be governed by the provisions of sections 701 (e), (f), 

and (g) of the Federal Food, Drug, and Cosmetic Act: Provided, 

That if¿ Proceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of subparagraph (1) of this paragraph shall be governed by the provisions of subsections (f) through 

(i) of section 3 of this Act, except that if the øSecretary¿ Commission finds that the distribution for household use of the hazardous 

substance involved presents an imminent hazard to the public 

health, øhe¿ it may by order published in the Federal Register give 

notice of such finding, and thereupon such substance when intended or offered for household use, or when so packaged as to be 

suitable for such use, shall be deemed to be a ‘‘banned hazardous 

substance’’ pending the completion of proceedings relating to the 

issuance of such regulations. 

(r) An article may be determined to present an electrical hazard 

if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture may cause personal injury 

or illness by electric shock. 

(s) An article may be determined to present a mechanical hazard 

if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable 

risk of personal injury or illness (1) from fracture, fragmentation, 

or disassembly of the article, (2) from propulsion of the article (or 

any part or accessory thereof), (3) from points or other protrusions, 

surfaces, edges, openings, or closures, (4) from moving parts, (5) 


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from lack or insufficiency of controls to reduce or stop motion, (6) 

as a result of self-adhering characteristics of the article, (7) because 

the article (or any part or accessory thereof) may be aspirated or 

ingested, (8) because of instability, or (9) because of any other aspect of the article’s design or manufacture. 

(t) An article may be determined to present a thermal hazard if, 

in normal use or when subjected to reasonably foreseeable damage 

or abuse, its design or manufacture presents an unreasonable risk 

of personal injury or illness because of heat as from heated parts, 

substances, or surfaces. 

REGULATIONS DECLARING HAZARDOUS SUBSTANCES AND

ESTABLISHING VARIATIONS AND EXEMPTIONS

[15 U.S.C. 1262] 

SEC. 3. ø(a) 1. Whenever in the judgment of the Secretary such 

action will promote the objectives of this Act by avoiding or resolving uncertainty as to its application, the Secretary may by regulation declare to be a hazardous substance, for the purposes of this 

Act, any substance or mixture of substances which he finds meets 

the requirements of subparagraph (1)(A) of section 2(f). 

ø2. Proceedings for the issuance, amendment, or repeal of regulations under this subsection and the admissibility of the record of 

such proceedings in other proceedings, shall in all respects be governed by the provisions of sections 701(e), (f), and (g) of the Federal 

Food, Drug, and Cosmetic Act, except that—

ø(A) the Secretary’s order after public hearing (acting upon 

objections filed to an order made prior to hearing) shall be subject to the requirements of section 409(f)(2) of the Federal 

Food, Drug, and Cosmetic Act; and 

ø(B) the scope of judicial review of such order shall be in accordance with the fourth sentence of paragraph (2), and with 

the provisions of paragraph (3), of section 409(g) of the Federal 

Food, Drug, and Cosmetic Act.¿ 

(a) RULEMAKING.—

(1) IN GENERAL.—Whenever in the judgment of the Commission such action will promote the objectives of this Act by avoiding or resolving uncertainty as to its application, the Commission may by regulation declare to be a hazardous substance, for 

the purposes of this Act, any substance or mixture of substances, which it finds meets the requirements of section 

2(f)(1)(A). 

(2) PROCEDURE.—Proceedings for the issuance, amendment, 

or repeal of regulations under this subsection and the admissibility of the record of such proceedings in other proceedings, 

shall be governed by the provisions of subsections (f) through (i) 

of this section. 

(b) If the øSecretary¿ Commission finds that the requirements of 

section 2(p)(1) are not adequate for the protection of the public 

health and safety in view of the special hazard presented by any 

particular hazardous substance, øhe¿ it may by regulation establish such reasonable variations or additional label requirements as 

øhe¿ it finds necessary for the protection of the public health and 

safety; and any such hazardous substance intended, or packaged in 

a form suitable, for use in the household or by children, which fails 


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to bear a label in accordance with such regulations shall be deemed 

to be a misbranded hazardous substance. 

(c) If the øSecretary¿ Commission finds that, because of the size 

of the package involved or because of the minor hazard presented 

by the substance contained therein, or for other good and sufficient 

reasons, full compliance with the labeling requirements otherwise 

applicable under this Act is impracticable or is not necessary for 

the adequate protection of the public health and safety, the øSecretary¿ Commission shall promulgate regulations exempting such 

substance from these requirements to the extent øhe¿ it determines to be consistent with adequate protection of the public 

health and safety. 

(d) The øSecretary¿ Commission may exempt from the requirements established by or pursuant to this Act any hazardous substance or container of a hazardous substance with respect to which 

øhe¿ it finds that adequate requirements satisfying the purposes of 

this Act have been established by or pursuant to any other Act of 

Congress. 

(e)(1) A determination by the øSecretary¿ Commission that a toy 

or other article intended for use by children presents an electrical, 

mechanical, or thermal hazard shall be made by regulation in accordance with the procedures prescribed by section 553 (other than 

clause (B) of the last sentence of subsection (b) of such section) of 

title 5 of the United States Code unless the øSecretary¿ Commission elects the procedures prescribed by subsection (e) of section 

701 of the Federal Food, Drug, and Cosmetic Act, in which event 

such subsection and subsections (f) and (g) of such section 701 shall 

apply to the making of such determination. If the øSecretary¿ 

Commission makes such election, øhe¿ it shall publish that fact 

with the proposal required to be published under paragraph (1) of 

such subsection (e). 

(2) If, before or during a proceeding pursuant to paragraph (1) 

of this subsection, the øSecretary¿ Commission finds that, because 

of an electrical, mechanical, or thermal hazard, distribution of the 

toy or other article involved presents an imminent hazard to the 

public health and øhe¿ it, by order published in the Federal Register, gives notice of such finding, such toy or other article shall be 

deemed to be a banned hazardous substance for purposes of this 

Act until the proceeding has been completed. If not yet initiated 

when such order is published, such a proceeding shall be initiated 

as promptly as possible. 

(3)(A) In the case of any toy or other article intended for use by 

children which is determined by the øSecretary¿ Commission, in 

accordance with section 553 of title 5 of the United State Code, to 

present an electrical, mechanical, or thermal hazard, any person 

who will be adversely affected by such a determination may, at any 

time prior to the 60th day after the regulation making such determination is issued by the øSecretary¿ Commission, file a petition 

with the United States Court of Appeals for the circuit in which 

such person resides or has his principal place of business for a judicial review of such determination. A copy of the petition shall be 

forthwith transmitted by the clerk of the court to the øSecretary¿ 

Commission or other officer designated by him for that purpose. 

The øSecretary¿ Commission shall file in the court the record of 

the proceedings on which the øSecretary¿ Commission based øhis¿ 


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100 

its determination, as provided in section 2112 of title 28 of the 

United States Code. 

(B) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such 

additional evidence is material and that there was no opportunity 

to adduce such evidence in the proceeding before the øSecretary¿ 

Commission, the court may order such additional evidence (and 

evidence in rebuttal thereof) to be taken before the øSecretary¿ 

Commission in a hearing or in such other manner, and upon such 

terms and conditions, as to the court may seem proper. The øSecretary¿ Commission may modify øhis¿ its findings as to the facts, 

or make new findings, by reason of the additional evidence so 

taken, and øhe¿ it shall file such modified or new findings, and 

øhis¿ its recommendation, if any, for the modification or setting 

aside of øhis¿ its original determination, with the return of such 

additional evidence. 

(C) Upon the filing of the petition under this paragraph, the 

court shall have jurisdiction to review the determination of the 

øSecretary¿ Commission in accordance with subparagraphs (A), 

(B), (C), and (D) of paragraph (2) of the second sentence of section 

706 of title 5 of the United States Code. If the court ordered additional evidence to be taken under subparagraph (B) of this paragraph, the court shall also review the øSecretary’s¿ Commission’s 

determination to determine if, on the basis of the entire record before the court pursuant to subparagraphs (A) and (B) of this paragraph, it is supported by substantial evidence. If the court finds the 

determination is not so supported, the court may set it aside. With 

respect to any determination reviewed under this paragraph, the 

court may grant appropriate relief pending conclusion of the review 

proceedings, as provided in section 705 of such title. 

(D) The judgment of the court affirming or setting aside, in whole 

or in part, any such determination of the øSecretary¿ Commission 

shall be final, subject to review by the Supreme Court of the 

United States upon certiorari or certification, as provided in section 

1254 of title 28 of the United States Code. 

(f) A proceeding for the promulgation of a regulation under section 2(q)(1) classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section øshall be commenced¿ may be commenced by the publication 

in the Federal Register of an advance notice of proposed rulemaking which shall—

(1) identify the article or substance and the nature of the 

risk of injury associated with the article or substance; 

(2) include a summary of each of the regulatory alternatives 

under consideration by the Commission (including voluntary 

standards); 

(3) include information with respect to any existing standard 

known to the Commission which may be relevant to the proceedings, together with a summary of the reasons why the 

Commission believes preliminarily that such standard does not 

eliminate or adequately reduce the risk of injury identified in 

paragraph (1); 

(4) invite interested persons to submit to the Commission, 

within such period as the Commission shall specify in the notice (which period shall not be less than 30 days or more than 


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101 

60 days after the date of publication of the notice), comments 

with respect to the risk of injury identified by the Commission, 

the regulatory alternatives being considered, and other possible alternatives for addressing the risk; 

(5) invite any person (other than the Commission) to submit 

to the Commission, within such period as the Commission shall 

specify in the notice (which period shall not be less than 30 

days after the date of publication of the notice), an existing 

standard or a portion of a standard as a proposed regulation 

under section 2(q)(1) or subsection (e) of this section; and 

(6) invite any person (other than the Commission) to submit 

to the Commission, within such period as the Commission shall 

specify in the notice (which period shall not be less than 30 

days after the date of publication of the notice), a statement of 

intention to modify or develop a voluntary standard to address 

the risk of injury identified in paragraph (1) together with a 

description of a plan to modify or develop the standard. 

The Commission shall transmit such notice within 10 calendar 

days to the Committee on Commerce, Science, and Transportation 

of the Senate and the Committee on Energy and Commerce of the 

House of Representatives. 

(g)(1) If the Commission determines that any standard submitted 

to it in response to an invitation in a notice published under subsection (f)(5) if promulgated (in whole, in part, or in combination 

with any other standard submitted to the Commission or any part 

of such a standard) as a regulation under section 2(q)(1) or subsection (e) of this section, as the case may be, would eliminate or 

adequately reduce the risk of injury identified øin the notice¿ in a 

notice provided under subsection (f)(1), the Commission may publish such standard, in whole, in part, or in such combination and 

with nonmaterial modifications, as a proposed regulation under 

such section or subsection. 

(2) If the Commission determines that— (A) compliance with any standard submitted to it in response 

to an invitation in a notice published under subsection (f)(6) is 

likely to result in the elimination or adequate reduction of the 

risk of injury identified in the notice, and 

(B) it is likely that there will be substantial compliance with 

such standard, 

the Commission shall terminate any proceeding to promulgate a 

regulation under section 2(q)(1) or subsection (e) of this section, respecting such risk of injury and shall publish in the Federal Register a notice which includes the determination of the Commission 

and which notifies the public that the Commission will rely on the 

voluntary standard to eliminate or reduce the risk of injury, except 

that the Commission shall terminate any such proceeding and rely 

on a voluntary standard only if such voluntary standard is in existence. For purposes of this section, a voluntary standard shall be 

considered to be in existence when it is finally approved by the organization or other person which developed such standard, irrespective of the effective date of the standard. Before relying upon 

any voluntary standard, the Commission shall afford interested 

persons (including manufacturers, consumers, and consumer organizations) a reasonable opportunity to submit written comments regarding such standard. The Commission shall consider such comVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00103 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

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ments in making any determination regarding reliance on the involved voluntary standard under this subsection. 

(3) The Commission shall devise procedures to monitor compliance with any voluntary standards— (A) upon which the Commission has relied under paragraph 

(2) of this subsection; 

(B) which were developed with the participation of the Commission; or 

(C) whose development the Commission has monitored. 

(h) No regulation under section 2(q)(1) classifying an article or 

substance as a banned hazardous substance and no regulation 

under subsection (e) of this section may be proposed by the Commission øunless, not less than 60 days after publication of the notice required in subsection (f), the¿ unless the Commission publishes in the Federal Register the text of the proposed rule, including any alternatives which the Commission proposes to promulgate, together with a preliminary regulatory analysis containing— (1) a preliminary description of the potential benefits and potential costs of the proposed regulation, including any benefits 

or costs that cannot be quantified in monetary terms, and an 

identification of those likely to receive the benefits and bear 

the costs; 

(2) a discussion of the reasons any standard or portion of a 

standard submitted to the Commission under subsection (f)(5) 

was not published by the Commission as the proposed regulation or part of the proposed regulation; 

(3) a discussion of the reasons for the Commission’s preliminary determination that efforts proposed under subsection 

(f)(6) and assisted by the Commission as required by section 

5(a)(3) of the Consumer Product Safety Act would not, within 

a reasonable period of time, be likely to result in the development of a voluntary standard that would eliminate or adequately reduce the risk of injury identified in the notice provided under subsection (f)(1); and 

(4) a description of any reasonable alternatives to the proposed regulation, together with a summary description of their 

potential costs and benefits, and a brief explanation of why 

such alternatives should not be published as a proposed regulation. 

The Commission shall transmit such notice within 10 calendar 

days to the Committee on Commerce, Science, and Transportation 

of the Senate and the Committee on Energy and Commerce of the 

House of Representatives. 

(i)(1) The Commission shall not promulgate a regulation under 

section 2(q)(1) classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section unless it has prepared a final regulatory analysis of the regulation containing the following information: 

(A) A description of the potential benefits and potential costs 

of the regulation, including costs and benefits that cannot be 

quantified in monetary terms, and the identification of those 

likely to receive the benefits and bear the costs. 

(B) A description of any alternatives to the final regulation 

which were considered by the Commission, together with a 

summary description of their potential benefits and costs and 


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103 

a brief explanation of the reasons why these alternatives were 

not chosen. 

(C) A summary of any significant issues raised by the comments submitted during the public comment period in response 

to the preliminary regulatory analysis, and a summary of the 

assessment by the Commission of such issues. 

The Commission shall publish its final regulatory analysis with the 

regulation. 

(2) The Commission shall not promulgate a regulation under section 2(q)(1) classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section unless it finds (and includes such finding in the regulation)— (A) in the case of a regulation which relates to a risk of injury with respect to which persons who would be subject to 

such regulation have adopted and implemented a voluntary 

standard, that— (i) compliance with such voluntary standard is not likely 

to result in the elimination or adequate reduction of such 

risk of injury; or 

(ii) it is unlikely that there will be substantial compliance with such voluntary standard; 

(B) that the benefits expected from the regulation bear a reasonable relationship to its costs; and 

(C) that the regulation imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the regulation is being promulgated. 

(3)(A) Any regulatory analysis prepared under subsection (h) or 

paragraph (1) shall not be subject to independent judicial review, 

except that when an action for judicial review of a regulation is instituted, the contents of any such regulatory analysis shall constitute part of the whole rulemaking record of agency action in connection with such review. 

(B) The provisions of subparagraph (A) shall not be construed to 

alter the substantive or procedural standards otherwise applicable 

to judicial review of any action by the Commission. 

(j) The Commission shall grant, in whole or in part, or deny any 

petition under section 553(e) of title 5, United States Code, requesting the Commission to initiate a rulemaking, within a reasonable 

time after the date on which such petition is filed. The Commission 

shall state the reasons for granting or denying such petition. The 

Commission may not deny any such petition on the basis of a voluntary standard unless the voluntary standard is in existence at 

the time of the denial of the petition, the Commission has determined that the voluntary standard is likely to result in the elimination or adequate reduction of the risk of injury identified in the 

petition, and it is likely that there will be substantial compliance 

with the standard. 

PROHIBITED ACTS

[15 U.S.C. 1263] 

SEC. 4. The following acts and the causing thereof are hereby 

prohibited: 

(a) The introduction or delivery for introduction into interstate 

commerce of any misbranded hazardous substance or banned hazardous substance. 


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104 

(b) The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the label of, or the doing of any 

other act with respect to, a hazardous substance, if such act is done 

while the substance is in interstate commerce, or while the substance is held for sale (whether or not the first sale) after shipment 

in interstate commerce, and results in the hazardous substance 

being a misbranded hazardous substance or banned hazardous substance. 

(c) The receipt in interstate commerce of any misbranded hazardous substance or banned hazardous substance and the delivery 

or proffered delivery thereof for pay or otherwise. 

(d) The giving of a guarantee or undertaking referred to in section 5(b)(2) which guarantee or undertaking is false, except by a 

person who relied upon a guarantee or undertaking to the same effect signed by, and containing the name and address of, the person 

residing in the United States from whom he received in good faith 

the hazardous substance. 

(e) The failure to permit entry or inspection as authorized by section 11(b) or to permit access to and copying of any record as authorized by section 12. 

(f) The introduction or delivery for introduction into interstate 

commerce, or the receipt in interstate commerce and subsequent 

delivery or proffered delivery for pay or otherwise, of a hazardous 

substance in a reused food, drug, or cosmetic container or in a container which, though not a reused container, is identifiable as a 

food, drug, or cosmetic container by its labeling or by other identification. The reuse of a food, drug, or cosmetic container as a container for a hazardous substance shall be deemed to be an act 

which results in the hazardous substance being a misbranded hazardous substance. As used in this paragraph, the terms ‘‘food’’, 

‘‘drug’’, and ‘‘cosmetic’’ shall have the same meaning as in the Federal Food, Drug, and Cosmetic Act. 

(g) The manufacture of a misbranded hazardous substance or 

banned hazardous substance within the District of Columbia or 

within any territory not organized with a legislative body. 

(h) The use by any person to his own advantage, or revealing 

other than to the øSecretary¿ Commission or officers or employees 

of the øDepartment,¿ Commission, or to the courts when relevant 

in any judicial proceeding under this Act, of any information acquired under authority of section 11 concerning any method of 

process which as a trade secret is entitled to protection. 

(i) The failure to notify the øConsumer Product Safety¿ Commission with respect to exports, pursuant to section 14(d). 

(j) The failure to comply with an order issued under section 15. 

(k) The introduction or delivery for introduction into interstate 

commerce of any lead solder which has a lead content in excess of 

0.2 percent which does not prominently display a warning label 

stating the lead content of the solder and warning that the use of 

such solder in the making of joints or fittings in any private or 

public potable water supply system is prohibited. 

PENALTIES

[15 U.S.C. 1264] 

SEC. 5. ø(a) Any person who violates any of the provisions of section 4 shall be guilty of a misdemeanor and shall on conviction 


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thereof be subject to a fine of not more than $500 or to imprisonment for not more than ninety days, or both; but for offenses committed with intent to defraud or mislead, or for second and subsequent offenses, the penalty shall be imprisonment for not more 

than one year, or a fine of not more than $3,000, or both such imprisonment and fine.¿ 

(a) IN GENERAL.—Violation of section 4 of this Act is punishable 

by— (1) imprisonment for not more than— (A) 1 year for a knowing violation of that section; or 

(B) 5 years for a knowing and willful violation of that 

section; and 

(2) a fine determined under section 3571 of title 18, United 

States Code. 

(b) No person shall be subject to the penalties of subsection (a) 

of this section, (1) for having violated section 4(c), if the receipt, delivery, or proffered delivery of the hazardous substance was made 

in good faith, unless he refuses to furnish on request of an officer 

or employee duly designated by the øSecretary¿ Commission, the 

name and address of the person from whom he purchased or received such hazardous substance, and copies of all documents, if 

any there be, pertaining to the delivery of the hazardous substance 

to him; or (2) for having violated section 4(a), if he establishes a 

guarantee or undertaking signed by, and containing the name and 

address of, the person residing in the United States from whom he 

received in good faith the hazardous substance, to the effect that 

the hazardous substance is not a misbranded hazardous substance 

or a banned hazardous substance within the meaning of those 

terms in this Act; or (3) for having violated subsection (a) or (c) of 

section 4 with respect to any hazardous substance shipped or delivered for shipment for export to any foreign country, in a package 

marked for export on the outside of the shipping container and labeled in accordance with the specifications of the foreign purchaser 

and in accordance with the laws of the foreign country, but if such 

hazardous substance is sold or offered for sale in domestic commerce or if the øConsumer Product Safety¿ Commission determines 

that exportation of such øsubstance presents an unreasonable risk 

of injury to persons residing within the United States,¿ substance 

is prohibited under section 18(c) of the Consumer Product Safety 

Act, this clause shall not apply. 

(c)(1) Any person who knowingly violates section 4 shall be subject to a civil penalty not to exceed ø$5,000¿ $250,000 for each such 

violation. Subject to paragraph (2), a violation of subsections (a), 

(b), (c), (d), (f), (g), (i), (j), and (k) of section 4 shall constitute a separate offense with respect to each substance involved, except that 

the maximum civil penalty shall not exceed ø$1,250,000¿ 

$100,000,000 for any related series of violations. A violation of section 4(e) shall constitute a separate violation with respect to each 

failure or refusal to allow or perform an act required by section 

4(e); and, if such violation is a continuing one, each day of such violation shall constitute a separate offense, except that the maximum 

civil penalty shall not exceed ø$1,250,000¿ $100,000,000 for any related series of violations. 

(2) The second sentence of paragraph (1) of this subsection shall 

not apply to violations of subsection (a) or (c) of section 4—


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106 

(A) if the person who violated such subsection is not the 

manufacturer, importer, or private labeler or a distributor of 

the substances involved; and 

(B) if such person did not have either (i) actual knowledge 

that such person’s distribution or sale of the substance violated 

such subsection, or (ii) notice from the Commission that such 

distribution or sale would be a violation of such subsection. 

(3) In determining the amount of any penalty to be sought upon 

commencing an action seeking to assess a penalty for a violation 

of section 4, the Commission shall consider the nature of the substance, the severity of the risk of injury, the occurrence or absence 

of injury, the amount of the substance distributed, and the appropriateness of such penalty in relation to the size of the business of 

the person charged. 

(4) Any civil penalty under this subsection may be compromised 

by the Commission. In determining the amount of such penalty or 

whether it should be remitted or mitigated, and in what amount, 

the Commission shall consider the appropriateness of such penalty 

to the size of the business of the persons charged, the nature of the 

substance involved, the severity of the risk of injury, the occurrence 

or absence of injury, and the amount of the substance distributed. 

The amount of such penalty when finally determined, or the 

amount agreed on compromise, may be deducted from any sums 

owing by the United States to the person charged. 

(5) As used in the first sentence of paragraph (1), the term ‘‘knowingly’’ means (A) having actual knowledge, or (B) the presumed having of knowledge deemed to be possessed by a reasonable person who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations. 

(6)(A) The maximum penalty amounts authorized in paragraph 

(1) shall be adjusted for inflation as provided in this paragraph. 

(B) Not later than øDecember 1, 1994,¿ December 1, 2011, and 

December 1 of each fifth calendar year thereafter, the Commission 

shall prescribe and publish in the Federal Register a schedule of 

maximum authorized penalties that shall apply for violations that 

occur after January 1 of the year immediately following such publication. 

(C) The schedule of maximum authorized penalties shall be prescribed by increasing each of the amounts referred to in paragraph 

(1) by the cost-of-living adjustment for the preceding five years. 

Any increase determined under the preceding sentence shall be 

rounded to—

(i) in the case of penalties greater than $1,000 but less than 

or equal to $10,000, the nearest multiple of $1,000; 

(ii) in the case of penalties greater than $10,000 but less 

than or equal to $100,000, the nearest multiple of $5,000; 

(iii) in the case of penalties greater than $100,000 but less 

than or equal to $200,000, the nearest multiple of $10,000; and 

(iv) in the case of penalties greater than $200,000, the nearest multiple of $25,000. 

(D) For purposes of this subsection: 

(i) The term ‘‘Consumer Price Index’’ means the Consumer 

Price Index for all-urban consumers published by the Department of Labor. 


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(ii) The term ‘‘cost-of-living adjustment for the preceding five 

years’’ means the percentage by which— (I) the Consumer Price Index for the month of June of 

the calendar year preceding the adjustment; exceeds 

(II) the Consumer Price Index for the month of June preceding the date on which the maximum authorized penalty 

was last adjusted. 

(d) In the case of an attorney general of a State alleging a violation that affects or may affect such State or its residents, such attorney general may bring a civil action for an injunction to enforce 

any requirement of this Act relating to misbranded or banned hazardous substances. The procedural requirements of section 24 of 

the Consumer Product Safety Act shall apply to any such action. 

SEIZURES

[15 U.S.C. 1265] 

SEC. 6. (a) Any misbranded hazardous substance or banned hazardous substance when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after 

shipment in interstate commerce, or which may not, under the provisions of section 4(f), be introduced into interstate commerce, or 

which has been manufactured in violation of section 4(g), shall be 

liable to be proceeded against while in interstate commerce or at 

any time thereafter, on libel of information and condemned in any 

district court in the United States within the jurisdiction of which 

the hazardous substance is found: Provided, That this section shall 

not apply to a hazardous substance intended for export to any foreign country if it (1) is in a package branded in accordance with 

the specifications of the foreign purchaser, (2) is labeled in accordance with the laws of the foreign country, and (3) is labeled on the 

outside of the shipping package to show that it is intended for export, and (4) is so exported. 

(b) Such hazardous substance shall be liable to seizure by process 

pursuant to the libel, and the procedure in cases under this section 

shall conform, as nearly as may be, to the procedure in admiralty; 

except that on demand of either party any issue of fact joined in 

any such case shall be tried by jury. When libel for condemnation 

proceedings under this section, involving the same claimant and 

the same issues of misbranding, are pending in two or more jurisdictions, such pending proceedings, upon application of the United 

States or the claimant seasonably made to the court of one such jurisdiction, shall be consolidated for trial by order of such court, and 

tried in (1) any district selected by the applicant where one of such 

proceedings is pending; or (2) a district agreed upon by stipulation 

between the parties. If no order for consolidation is so made within 

a reasonable time, the United States or the claimant may apply to 

the court of one such jurisdiction, and such court (after giving the 

other party, the claimant, or the United States attorney for such 

district, reasonable notice and opportunity to be heard) shall by 

order, unless good cause to the contrary is shown, specify a district 

of reasonable proximity to the claimant’s principal place of business, in which all such pending proceedings shall be consolidated 

for trial and tried. Such order of consolidation shall not apply so 

as to require the removal of any case the date for trial of which 

has been fixed. The court granting such order shall give prompt noVerDate Aug 31 2005 13:57 Feb 27, 2008 Jkt 069010 PO 00000 Frm 00109 Fmt 6659 Sfmt 6601 E:\HR\OC\SR265.XXX SR265

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tification thereof to the other courts having jurisdiction of the cases 

covered thereby. 

(c) Any hazardous substance condemned under this section shall, 

after entry of the decree, be disposed of by destruction or sale as 

the court may, in accordance with the provisions of this section, direct and the proceeds thereof, if sold, less the legal costs and 

charges, shall be paid into the Treasury of the United States; but 

such hazardous substance shall not be sold under such decree contrary to the provisions of this Act or the laws of the jurisdiction in 

which sold: Provided, That, after entry of the decree and upon payment of the costs of such proceedings and the execution of a good 

and sufficient bond conditioned that such hazardous substance 

shall not be sold or disposed of contrary to the provisions of this 

Act or the laws of any State or territory in which sold, the court 

may by order direct that such hazardous substance be delivered to 

the owner thereof to be destroyed or brought into compliance with 

the provisions of this Act under the supervision of an officer or employee duly designated by the øSecretary¿ Commission, and the expense of such supervision shall be paid by the person obtaining release of the hazardous substance under bond. 

(d) When a decree of condemnation is entered against the hazardous substance, court costs and fees, and storage and other proper expenses, shall be awarded against the person, if any, intervening as claimant of the hazardous substance. 

(e) In the case of removal for trial of any case as provided by subsection (b)— (1) the clerk of the court from which removal is made shall 

promptly transmit to the court in which the case is to be tried 

all records in the case necessary in order that such court may 

exercise jurisdiction; 

(2) the court to which such case is removed shall have the 

powers and be subject to the duties, for purposes of such case, 

which the court from which removal was made would have 

had, or to which such court would have been subject, if such 

case had not been removed. 

HEARING BEFORE REPORT OF CRIMINAL VIOLATION

[15 U.S.C. 1266] 

SEC. 7. Before any violation of this Act is reported by the øSecretary¿ Commission to any United States attorney for institution 

of a criminal proceeding, the person against whom such proceeding 

is contemplated shall be given appropriate notice and an opportunity to present his views, either orally or in writing, with regard 

to such contemplated proceeding. 

* * * * * * * 

REGULATIONS

[15 U.S.C. 1269] 

SEC. 10. (a) The authority to promulgate regulations for the efficient enforcement of this Act, except as otherwise provided in this 

section, is hereby vested in the øSecretary¿ Commission. (b) The Secretary of the Treasury and the øSecretary of Health, 

Education, and Welfare¿ Commission shall jointly prescribe regulations for the efficient enforcement of the provisions of section 14, 


wwoods2 on PRODPC68 with REPORTS
109 

except as otherwise provided therein. Such regulations shall be promulgated in such manner and take effect at such time, after due 

notice, as the øSecretary of Health, Education, and Welfare¿ Commission shall determine. 

EXAMINATIONS AND INVESTIGATIONS

[15 U.S.C. 1270] 

SEC. 11. (a) The øSecretary¿ Commission is authorized to conduct examinations, inspections, and investigations for the purposes 

of this Act through officers and employees of the øDepartment¿ 

Commission or through any health officer or employee of any State, 

territory, or political subdivision thereof, duly commissioned by the 

øSecretary¿ Commission as an officer of the øDepartment¿ Commission. 

(b) For purposes of enforcement of this Act, officers or employees 

duly designated by the øSecretary¿ Commission, upon presenting 

appropriate credentials and a written notice to the owner, operator, 

or agent in charge, are authorized (1) to enter, at reasonable times, 

any factory, warehouse, or establishment in which hazardous substances are manufactured, processed, packed, or held for introduction into interstate commerce or are held after such introduction, 

or to enter any vehicle being used to transport or hold such hazardous substances in interstate commerce; (2) to inspect, at reasonable times and within reasonable limits and in a reasonable manner, such factory, warehouse, establishment, or vehicle, and all pertinent equipment, finished and unfinished materials, and labeling 

therein; and (3) to obtain samples of such materials or packages 

thereof, or of such labeling. A separate notice shall be given for 

each such inspection, but a notice shall not be required for each 

entry made during the period covered by the inspection. Each such 

inspection shall be commenced and completed with reasonable 

promptness. 

(c) If the officer or employee obtains any sample, prior to leaving 

the premises, he shall give to the owner, operator, or agent in 

charge a receipt describing the samples obtained. If an analysis is 

made of such sample, a copy of the results of such analysis shall 

be furnished promptly to the owner, operator, or agent in charge. 

RECORDS OF INTERSTATE SHIPMENT

[15 U.S.C. 1271] 

SEC. 12. For the purpose of enforcing the provisions of this Act, 

carriers engaged in interstate commerce, and persons receiving 

hazardous substances in interstate commerce or holding such hazardous substances so received shall, upon the request of an officer 

or employee duly designated by the øSecretary¿ Commission, permit such officer or employee, at reasonable times, to have access 

to and to copy all records showing the movement in interstate commerce of any such hazardous substance, or the holding thereof during or after such movement, and the quantity, shipper, and consignee thereof; and it shall be unlawful for any such carrier or person to fail to permit such access to and copying of any record so 

requested when such request is accompanied by a statement in 

writing specifying the nature or kind of such hazardous substance 

to which such request relates: Provided, That evidence obtained 

under this section, or any evidence which is directly or indirectly 


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110 

derived from such evidence, shall not be used in a criminal prosecution of the person from whom obtained: Provided further, That 

carriers shall not be subject to the other provisions of this Act by 

reason of their receipt, carriage, holding, or delivery of hazardous 

substances in the usual course of business as carriers. 

PUBLICITY

[15 U.S.C. 1272] 

SEC. 13. (a) The øSecretary¿ Commission may cause to be published from time to time reports summarizing any judgments, decrees, or court orders which have been rendered under this Act, including the nature of the charge and the disposition thereof. 

(b) The øSecretary¿ Commission may also cause to be disseminated information regarding hazardous substances in situations involving, in the opinion of the øSecretary¿ Commission, imminent 

danger to health. Nothing in this section shall be construed to prohibit the øSecretary¿ Commission from collecting, reporting, and illustrating the results of the investigations of the øDepartment¿ 

Commission. 

IMPORTS AND EXPORTS

[15 U.S.C. 1273] 

SEC. 14. (a) The Secretary of the Treasury shall deliver to the 

øSecretary of Health, Education, and Welfare,¿ Commision, upon 

øhis¿ its request, samples of hazardous substances which are being 

imported or offered for import into the United States, giving notice 

thereof to the owner or consignee, who may appear before the øSecretary of Health, Education, and Welfare¿ Commission and have 

the right to introduce testimony. If it appears from the examination 

of such samples or otherwise that such hazardous substance is a 

misbranded hazardous substance or banned hazardous substance 

or in violation of section 4(f), then such hazardous substance shall 

be refused admission, except as provided in subsection (b) of this 

section. The Secretary of the Treasury shall cause the destruction 

of any such hazardous substance refused admission unless such 

hazardous substance is exported, under regulations prescribed by 

the Secretary of the Treasury, within ninety days of the date of notice of such refusal or within such additional time as may be permitted pursuant to such regulations. 

(b) Pending decision as to the admission of a hazardous substance being imported or offered for import, the Secretary of the 

Treasury may authorize delivery of such hazardous substance to 

the owner or consignee upon the execution by him of a good and 

sufficient bond providing for the payment of such liquidated damages in the event of default as may be required pursuant to regulations of the Secretary of the Treasury. If it appears to the øSecretary of Health, Education, and Welfare¿ Commission that the 

hazardous substance can, by relabeling or other action, be brought 

into compliance with this Act, final determination as to admission 

of such hazardous substance may be deferred and, upon filing of 

timely written application by the owner or consignee and the execution by him of a bond as provided in the preceding provisions of 

this subsection, the øSecretary¿ Commission may, in accordance 

with regulations, authorize the applicant to perform such relabeling or other action specified in such authorization (including 


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111 

destruction or export of rejected hazardous substances or portions 

thereof, as may be specified in the øSecretary’s¿ Commission’s authorization). All such relabeling or other action pursuant to such 

authorization shall, in accordance with regulations, be under the 

supervision of an officer or employee of the øDepartment of Health, 

Education, and Welfare¿ Commission designated by the Secretary, 

or an officer or employee of the Department of the Treasury designated by the Secretary of the Treasury. 

(c) All expenses (including travel, per diem, or subsistence, and 

salaries of officers or employees of the United States) in connection 

with the destruction provided for in subsection (a) of this section 

and the supervision of the relabeling or other action authorized 

under the provisions of subsection (b) of this section, the amount 

of such expenses to be determined in accordance with regulations, 

and all expenses in connection with the storage, cartage, or labor 

with respect to any hazardous substance refused admission under 

subsection (a) of this section, shall be paid by the owner or consignee and, in default of such payment, shall constitute a lien 

against any future importations made by such owner or consignee. 

(d) Not less than thirty days before any person exports to a foreign country any misbranded hazardous substance or banned hazardous substance, such person shall file a statement with the 

øConsumer Product Safety Commission (hereinafter in this section 

referred to as the ‘‘Commission’’)¿ Commission notifying the Commission of such exportation, and the Commission, upon receipt of 

such statement, shall promptly notify the government of such country of such exportation and the basis upon which such substance 

is considered misbranded or has been banned under this Act. Any 

statement filed with the Commission under the preceding sentence 

shall specify the anticipated date of shipment of such substance, 

the country and port of destination of such substance, and the 

quantity of such substance that will be exported, and shall contain 

such other information as the Commission may by regulation require. Upon petition filed with the Commission by any person required to file a statement under this subsection respecting an exportation, the Commission may, for good cause shown, exempt such 

person from the requirement of this subsection that such a statement be filed no less than thirty days before the date of the exportation, except that in no case shall the Commission permit such a 

statement to be filed later than the tenth day before such date. 

NOTICE AND REPAIR, REPLACEMENT, OR REFUND

[15 U.S.C. 1274] 

SEC. 15. (a) If any article or substance sold in commerce is defined as a banned hazardous substance (whether or not it was such 

at the time of its sale) and the Commission determines (after affording interested persons, including consumers and consumer organizations, an opportunity for a hearing) that notification is required to adequately protect the public from such article or substance, the Commission may order the manufacturer or any distributor or dealer of the article or substance to take any one or 

more of the following actions: 

(1) To give public notice that the article or substance is a 

banned hazardous substance. 


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112 

(2) To mail such notice to each person who is a manufacturer, distributor, or dealer of such article or substance. 

(3) To mail such notice to every person to whom the person 

giving the notice knows such article or substance was delivered 

or sold. 

An order under this subsection shall specify the form and content 

of any notice required to be given under the order. 

(b) If any article or substance sold in commerce is defined as a 

banned hazardous substance (whether or not it was such at the 

time of its sale) and the Commission determines (after affording interested persons, including consumers and consumer organizations, 

an opportunity for a hearing) that action under this subsection is 

in the public interest, the øConsumer Product Safety¿ Commission 

may order the manufacturer, distributor, or dealer to take whichever of the following actions the person to whom the order is directed elects: 

(1) If repairs to or changes in the article or substance may 

be made so that it will not be a banned hazardous substance, 

to make such repairs or changes. 

(2) To replace such article or substance with a like or equivalent article or substance which is not a banned hazardous substance. 

(3) To refund the purchase price of the article or substance 

(less a reasonable allowance for use, if the article or substance 

has been in the possession of the consumer for one year or 

more—

(A) at the time of public notice under subsection (a), or 

(B) at the time the consumer receives actual notice that 

the article or substance is a banned hazardous substance, 

whichever first occurs). 

An order under this subsection may also require the person to 

whom it applies to submit a plan, satisfactory to the Commission, 

for taking the action which such person has elected to take. The 

Commission shall specify in the order the persons to whom refunds 

must be made if the person to whom the order is directed elects 

to take the action described in paragraph (3). If an order under this 

subsection is directed to more than one person, the Commission 

shall specify which person has the election under this subsection. 

An order under this subsection may prohibit the person to whom 

it applies from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of the 

United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination 

of such actions, with respect to the article or substance with respect to which the order was issued. 

(c)(1) If the Commission determines (after affording interested 

persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (e) of this 

section) that any toy or other article intended for use by children 

that is not a banned hazardous substance contains a defect which 

creates a substantial risk of injury to children (because of the pattern of defect the number of defective toys or such articles distributed in commerce, the severity of the risk, or otherwise) and that 

notification is required to protect adequately the public from such 

toy or article, the Commission may order the manufacturer or any 


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113 

distributor or dealer of such toy or article to take any one or more 

of the following actions: 

(A) To give public notice that such defective toy or article 

contains a defect which creates a substantial risk of injury to 

children. 

(B) To mail such notice to each person who is a manufacturer, distributor, or dealer of such toy or article. 

(C) To mail such notice to every person to whom the person 

giving notice knows such toy or article was delivered or sold. 

An order under this paragraph shall specify the form and content 

of any notice required to be given under the order. 

(2) If the Commission determines (after affording interested persons, including consumers and consumer organizations, an opportunity for a hearing in accordance with subsection (e) of this section) that any toy or other article intended for use by children that 

is not a banned hazardous substance contains a defect which creates a substantial risk of injury to children (because of the pattern 

of defect, the number of defective toys or such articles distributed 

in commerce, the severity of the risk, or otherwise) and that action 

under this paragraph is in the public interest, the Commission may 

order the manufacturer, distributor, or dealer to take whichever of 

the following actions the person to whom the order is directed 

elects: 

(A) If repairs to or changes in the toy or article can be made 

so that it will not contain a defect which creates a substantial 

risk of injury to children, to make such repairs or changes. 

(B) To replace such toy or article with a like or equivalent 

toy or article which does not contain a defect which creates a 

substantial risk of injury to children. 

(C) To refund the purchase price of such toy or article (less 

a reasonable allowance for use, if such toy or article has been 

in the possession of the consumer for 1 year or more (i) at the 

time of public notice under paragraph (1)(A), or (ii) at the time 

the consumer receives actual notice that the toy or article contains a defect which creates a substantial risk of injury to children, whichever first occurs). 

An order under this paragraph may also require the person to 

whom it applies to submit a plan, satisfactory to the Commission, 

for taking the action which such person has elected to take. The 

Commission shall specify in the order the person to whom refunds 

must be made if the person to whom the order is directed elects 

to take the action described in subparagraph (C). If an order under 

this paragraph is directed to more than one person, the Commission shall specify which person has the election under this paragraph. An order under this paragraph may prohibit the person to 

whom it applies from manufacturing for sale, offering for sale, distributing in commerce, or importing into the customs territory of 

the United States (as defined in general note 2 of the Harmonized 

Tariff Schedule of the United States), or from doing any combination of such actions, with respect to the toy or article respect to 

which the order was issued. 

(d)(1) No charge shall be made to any person (other than a manufacturer, distributor, or dealer) who avails himself of any remedy 

provided under an order issued under subsection (b) or (c), and the 

person subject to the order shall reimburse each person (other than 


wwoods2 on PRODPC68 with REPORTS
114 

a manufacturer, distributor, or dealer) who is entitled to such a 

remedy for any reasonable and foreseeable expenses incurred by 

such person in availing himself of such remedy. 

(2) An order issued under subsection (a), (b), or (c) with respect 

to a toy, article or substance may require any person who is a manufacturer, distributor, or dealer of the toy, article or substance to 

reimburse any other person who is a manufacturer, distributor, or 

dealer of such article or substance for such other person’s expenses 

in connection with carrying out the order, if the Commission determines such reimbursement to be in the public interest. 

(e) An order under subsection (a), (b), or (c) may be issued only 

after an opportunity for a hearing in accordance with section 554 

of title 5, United States Code, except that, if the Commission determines that any person who wishes to participate in such hearing 

is a part of a class of participants who share an identity of interest, 

the Commission may limit such person’s participation in such hearing to participation through a single representative designated by 

such class (or by the Commission if such class fails to designate 

such a representative). 

(f) For purposes of this section (1) the term ‘‘manufacturer’’ includes an importer for resale, and (2) a dealer who sells at wholesale an article or substance shall with respect to that sale be considered the distributor of that article or substance. 

(g) Nothing in this section shall be construed to require the Commission, in determining that an article or substance distributed in 

commerce presents a substantial product hazard and that notification or other action under this section should be taken, to prepare 

a comparison of the costs that would be incurred in providing notification or taking other action under this section with the benefits 

from such notification or action. 

* * * * * * * 

[15 U.S.C. 1261 note] 

SEC. 17. This Act shall take effect upon the date of its enactment; 

but no penalty or condemnation shall be enforced for any violation 

of this Act which occurs—

(a) prior to the expiration of the sixth calendar month after 

the month in which this Act is enacted, or 

(b) prior to the expiration of such additional period or periods, ending not more than eighteen months after the month of 

enactment of this Act, as the øSecretary¿ Commission may 

prescribe on the basis of a finding that conditions exist which 

necessitate the prescribing of such additional period or periods: 

Provided, That the øSecretary¿ Commission may limit the application of such additional period or periods to violations related to specified provisions of this Act, or to specified kinds of 

hazardous substances or packages thereof. 

EFFECT UPON FEDERAL AND STATE LAW

[15 U.S.C. 1261 note] 

SEC. 18. (a) Nothing in this Act shall be construed to modify or 

affect the provisions of the Flammable Fabrics Act, as amended (15 

U.S.C. 1191–1200), or any regulations promulgated thereunder; or 

of chapter 39, title 18, United States Code, as amended (18 U.S.C. 

831 et seq.), or any regulations promulgated thereunder, or under 


wwoods2 on PRODPC68 with REPORTS
115 

sections 204(a)(2) and 204(a)(3) of the Interstate Commerce Act, as 

amended (relating to the transportation of dangerous substances 

and explosives by surface carriers); or of section 1716, title 18, 

United States Code, or any regulations promulgated thereunder 

(relating to mailing of dangerous substances); or of section 902 or 

regulations promulgated under section 601 of the Federal Aviation 

Act of 1958 (relating to transportation of dangerous substances and 

explosives in aircraft); or of the Federal Food, Drug, and Cosmetic 

Act; or of the Public Health Service Act; or of the Federal Insecticide, Fungicide, and Rodenticide Act; or of the Dangerous Drug Act 

for the District of Columbia (70 Stat. 612), or the Act entitled ‘‘An 

Act to regulate the practice of pharmacy and the sale of poisons in 

the District of Columbia, and for other purposes’’, approved May 7, 

1906 (34 Stat. 175), as amended; or of any other Act of Congress, 

except as specified in section 19. 

(b)(1)(A) Except as provided in paragraphs (2) and (3), if a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) designated to protect 

against a risk of illness or injury associated with the substance, no 

State or political subdivision of a State may establish or continue 

in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk 

of illness or injury unless such cautionary labeling requirement is 

identical to the labeling requirement under section 2(p) or 3(b). 

(B) Except as provided in paragraphs (2), (3), and (4), if under 

regulations of the Commission promulgated under or for the enforcement of section 2(q) a requirement is established to protect 

against a risk of illness or injury associated with a hazardous substance, no State or political subdivision of a State may establish or 

continue in effect a requirement applicable to such substance and 

designed to protect against the same risk of illness or injury unless 

such requirement is identical to the requirement established under 

such regulations. 

(2) The Federal Government and the government of any State or 

political subdivision of a State may establish and continue in effect 

a requirement applicable to a hazardous substance for its own use 

(or to the packaging of such a substance) which requirement is designed to protect against a risk of illness or injury associated with 

such substance and which is not identical to a requirement described in paragraph (1) applicable to such substance (or packaging) and designed to protect against the same risk of illness or 

injury if the Federal, State, or political subdivision requirement 

provides a higher degree of protection from such risk of illness or 

injury than the requirement described in paragraph (1). 

(3)(A) Upon application of a State or political subdivision of a 

State, the Commission may, by regulation promulgated in accordance with subparagraph (B), exempt from paragraph (1), under 

such conditions as may be prescribed in such regulation, any requirement of such State or political subdivision designed to protect 

against a risk of illness or injury associated with a hazardous substance if—

(i) compliance with the requirement would not cause the hazardous substance (or its packaging) to be in violation of the applicable requirement described in paragraph (1), and 


wwoods2 on PRODPC68 with REPORTS
116 

(ii) the State or political subdivision requirement (I) provides 

a significantly higher degree of protection from such risk of illness or injury than the requirement described in paragraph 

(1), and (II) does not unduly burden interstate commerce. 

In determining the burden, if any, of a State or political subdivision requirement on interstate commerce the Commission shall 

consider and make appropriate (as determined by the Commission 

in its discretion) findings on the technological and economic feasibility of complying with such requirement, the cost of complying 

with such requirement, the geographic distribution of the substance to which the requirement would apply, the probability of 

other States or political subdivisions applying for an exemption 

under this paragraph for a similar requirement, and the need for 

a national, uniform requirement under this Act for such substance 

(or its packaging). 

(B) A regulation under subparagraph (A) granting an exemption 

for a requirement of a State or political subdivision of a State may 

be promulgated by the Commission only after it has provided, in 

accordance with section 553(b) of title 5, United States Code, notice 

with respect to the promulgation of the regulation and has provided opportunity for the oral presentation of views respecting its 

promulgation. 

(4) Paragraph (1)(B) does not prohibit a State or a political subdivision of a State from establishing or continuing in effect a requirement which is designed to protect against a risk of illness or 

injury associated with fireworks devices or components thereof and 

which provides a higher degree of protection from such risk of illness or injury than a requirement in effect under a regulation of 

the Commission described in such paragraph. 

ø(5) As used in this subsection, the term ‘‘Commission’’ means 

the Consumer Product Safety Commission.¿ 

REPEAL OF FEDERAL CAUSTIC POISON ACT

[15 U.S.C. 401 note] 

SEC. 19. The Federal Caustic Poison Act (44 Stat. 1406) is repealed effective at the close of the sixth calendar month after the 

month of enactment of this Act, except that the Federal Caustic 

Poison Act shall remain in full force and effect with respect to any 

‘‘dangerous caustic or corrosive substance’’ (as defined by that Act) 

which is an article subject to the Federal Food, Drug, and Cosmetic 

Act and which is, by virtue of paragraph 2 of section 2(f) of this 

Act, excluded from the term ‘‘hazardous substance’’ as defined in 

this Act: Provided, That, if the øSecretary¿ Commission, pursuant 

to section 17(b) of this Act, prescribes an additional period or periods during which violations of this Act shall not be enforceable and 

if such additional period or periods are applicable to violations of 

this Act involving one or more substances defined as ‘‘dangerous 

caustic or corrosive substances’’ by the Federal Caustic Poison Act, 

that Act shall, with respect to such substance or substances, remain in full force and effect during such additional period or periods: Provided further, That, with respect to violations, liabilities incurred or appeals taken prior to the close of said sixth month or, 

if applicable, prior to the expiration of the additional period or periods referred to in the preceding proviso, all provisions of the Federal Caustic Poison Act shall be deemed to remain in full force for 


wwoods2 on PRODPC68 with REPORTS
117 

the purpose of sustaining any proper suit, action, or other proceeding with respect to any such violations, liabilities, and appeals. 

* * * * * * * 

SEC. 24. REQUIREMENTS FOR LABELING CERTAIN TOYS AND GAMES. 

[15 U.S.C. 1278] 

(a) TOYS OR GAMES FOR CHILDREN WHO ARE AT LEAST 3.—

(1) REQUIREMENT.—The packaging of any toy or game intended for use by children who are at least 3 years old but not 

older than 6 years (or such other upper age limit as the Commission may determine, which may not be less than 5 years 

old), any descriptive material which accompanies such toy or 

game, and, in the case of bulk sales of such toy or game when 

unpackaged, any bin, container for retail display, or vending 

machine from which the unpackaged toy or game is dispensed 

shall bear or contain the cautionary statement described in 

paragraph (2) if the toy or game—

(A) is manufactured for sale, offered for sale, or distributed in commerce in the United States, and 

(B) includes a small part, as defined by the Commission. 

(2) LABEL.—The cautionary statement required by paragraph 

(1) for a toy or game shall be as follows: 

[ILLUSTRATION OMITTED]

(b) BALLOONS, SMALL BALLS, AND MARBLES.—

(1) REQUIREMENT.—In the case of any latex balloon, any ball 

with a diameter of 1.75 inches or less intended for children 3 

years of age or older, any marble intended for children 3 years 

of age or older, or any toy or game which contains such a balloon, ball, or marble, which is manufactured for sale, offered 

for sale, or distributed in commerce in the United States—

(A) the packaging of such balloon, ball, marble, toy, or 

game, 

(B) any descriptive material which accompanies such 

balloon, ball, marble, toy, or game, and 

(C) in the case of bulk sales of any such product when 

unpackaged, any bin, container for retail display, or vending machine from which such unpackaged balloon, ball, 

marble, toy, or game is dispensed, 

shall bear or contain the cautionary statement described in 

paragraph (2). 

(2) LABEL.—The cautionary statement required under paragraph (1) for a balloon, ball, marble, toy, or game shall be as 

follows: 

(A) BALLOONS.—In the case of balloons, or toys or games 

that contain latex balloons, the following cautionary statement applies: 

[ILLUSTRATION OMITTED]

(D) TOYS AND GAMES.—In the case of toys or games containing balls, the following cautionary statement applies: 

[ILLUSTRATION OMITTED]

(c) INTERNET, CATALOGUE, AND OTHER ADVERTISING.—


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118 

(1) REQUIREMENT.—

(A) CAUTIONARY STATEMENT.—Any advertisement posted 

by a manufacturer, retailer, distributor, private labeler, or 

licensor for any toy, game, balloon, small ball, or marble 

that requires a cautionary statement under subsections (a) 

and (b), including any advertisement on Internet websites 

or in catalogues or other distributed materials, shall include the appropriate cautionary statement required under 

such subsections in its entirety displayed on or immediately 

adjacent to such advertisement. 

(B) DISPLAY.—The cautionary statement described in 

subparagraph (A) shall be prominently displayed—

(i) in the primary language used in the advertisement, catalogue, or Internet website; 

(ii) in conspicuous and legible type in contrast by typography, layout, or color with other material printed 

or displayed in such advertisement; and 

(iii) in a manner consistent with part 1500 of title 

16, Code of Federal Regulations. 

(C) DEFINITIONS.—In this paragraph, the terms ‘manufacturer, retailer, distributor, private labeler, and licensor’—

(i) mean any individual who, by such individual’s 

occupation holds himself or herself out as having 

knowledge or skill peculiar to consumer products, including any person who is in the business of manufacturing, selling, distributing, labeling, licensing, or otherwise placing in the stream of commerce consumer 

products; but 

(ii) do not include an individual whose selling activity is intermittent and does not constitute a trade or 

business. 

(2) ENFORCEMENT.—The requirement under paragraph (1) 

shall be treated as a consumer product safety standard promulgated under section 7 of the Consumer Product Safety Act (15 

U.S.C. 2056). The publication or distribution of any advertisement that is not in compliance with paragraph (1) shall be 

treated as a prohibited act under section 19 of such Act (15 

U.S.C. 2068). 

ø(c)¿ (d) GENERAL LABELING REQUIREMENTS.—

(1) IN GENERAL.—Except as provided in paragraphs (2) and 

(3), any cautionary statement required under subsection (a) or 

(b) shall be—

(A) displayed in its entirety on the principal display 

panel of the product’s package, and on any descriptive material which accompanies the product, and, in the case of 

bulk sales of such product when unpackaged, on the bin, 

container for retail display of the product, and any vending 

machine from which the unpackaged product is dispensed, 

and 

(B) displayed in the English language in conspicuous 

and legible type in contrast by typography, layout, or color 

with other printed matter on such package, descriptive 

materials, bin, container, and vending machine, and in a 


wwoods2 on PRODPC68 with REPORTS
119 

manner consistent with part 1500 of title 16, Code of Federal Regulations (or successor regulations thereto). 

(2) EXCEPTION FOR PRODUCTS MANUFACTURED OUTSIDE

UNITED STATES.—In the case of a product manufactured outside 

the United States and directly shipped from the manufacturer 

to the consumer by United States mail or other delivery service, the accompanying material inside the package of the product may fail to bear the required statement if other accompanying material shipped with the product bears such statement. 

(3) SPECIAL RULES FOR CERTAIN PACKAGES.—(A) A cautionary 

statement required by subsection (a) or (b) may, in lieu of display on the principal display panel of the product’s package, be 

displayed on another panel of the package if— (i) the package has a principal display panel of 15 

square inches or less and the required statement is displayed in three or more languages; and 

(ii) the statement specified in subparagraph (B) is displayed on the principal display panel and is accompanied 

by an arrow or other indicator pointing toward the place 

on the package where the statement required by subsection (a) or (b) appears. 

(B)(i) In the case of a product to which subsection (a), subsection (b)(2)(B), subsection (b)(2)(C), or subsection (b)(2)(D) applies, the statement specified by this subparagraph is as follows: 

[ILLUSTRATION OMITTED]

(ii) In the case of a product to which subsection (b)(2)(A) applies, the statement specified by this subparagraph is as follows: 

[ILLUSTRATION OMITTED]

ø(d)¿ (e) TREATMENT AS MISBRANDED HAZARDOUS SUBSTANCE.—

A balloon, ball, marble, toy, or game, that is not in compliance with 

the requirements of this subsection shall be considered a misbranded hazardous substance under section 2(p). 

Æ 


wwoods2 on PRODPC68 with REPORTS