COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Increased Toy Safety Regulation May Mark New Era of Government Problem-Solving

Aug. 5, 2008

Imagine yourself shopping at a discount store. You’re there to pick up, say, paper towels. Your 4-year-old, however, desperately wants a little necklace with a princess on it, which costs a dollar. Maybe you buy it; maybe you don’t. But how much time do you spend wondering whether the necklace contains lead?

Jax

Federal regulation is boring and easy to take for granted, but the reason that necklace probably doesn’t contain lead isn’t solely the operation of the market. Toys and other children’s products are one of a variety of product categories regulated by the Consumer Product Safety Commission, which most frequently makes its way into the news when it recalls toys. The safety of children’s products was placed in the spotlight in 2007, when a series of high-profile recalls — many involving toys imported from China, and many involving lead — alarmed both parents and lawmakers. Now, after a lengthy wrestling match over the details, Congress has passed a bill to substantially beef up the commission’s enforcement powers. This isn’t mere tinkering; Consumers Union is calling the legislation “the broadest-sweeping product safety legislation since the inception of the Consumer Product Safety Commission in the late 1970s.”

As the bill moved through the process, various parts encountered strong opposition from the National Association of Manufacturers, the U.S. Chamber of Commerce and the American Chemistry Council (not a group of wiry-haired professors as you might assume, but a group of plastic-making companies). Nevertheless, the final version of the legislation, containing many of those hotly disputed provisions, has not only already passed the House and Senate but also passed the House on a 424-1 vote and passed the Senate 89-3. That’s 513-4 overall. You couldn’t get 513 members of Congress to agree on what to have for lunch; how did they put together an almost unanimous agreement to increase regulation over industry objections?

The Public View of Federal Regulation

This kind of legislation — expanding the powers of the federal government and increasing funding and staffing for a regulatory agency — has not been a popular rallying cry over the last 20 years. Pendulum swings in government always seem to begin with what is least controversial; that’s why crackdowns on “indecent” conduct seem to begin as discussions of the protection of children, even if they ultimately target material primarily enjoyed by adults. It certainly seems possible that, as The Baltimore Sun recently speculated, the emphatic passage of the bill signals some softening of the national anti-regulatory attitude.

The Sun took note of a recent poll that found that respondents favored the statement “government should do more to solve problems and help meet the needs of people” by a 52-43 margin over the statement “government is doing too many things better left to businesses and individuals.” While it’s important not to overstate the meaning of any one legislative development, if, in fact, there is the beginning of a shift toward a tightening of regulation, children’s products would be the logical starting point.

Some of the bill’s provisions aren’t particularly controversial. Many of the headlines focus on the near-total ban of lead from children’s products, which hasn’t emerged as the main sticking point — surely, there are few public causes easier to advance than keeping lead away from babies. There also was little outcry over the decision to greatly increase the maximum penalties the agency can impose. Surprisingly, despite the general fervor for reducing the size of government, the bill hasn’t drawn much fire for its large increases in the budget and staffing levels of the commission, which has been operating with sharply reduced firepower for many years.

Perhaps because even increasing the commission’s resources will leave it stretched thin, the bill empowers state attorneys general to bring actions to enforce the federal standards. Consumer protection is a pet project for many attorneys general, so the fit seems natural, but obviously, increasing the potential for enforcement increases the concrete effect of any regulation. Boosting the power of states to sue manufacturers is, again, not the sort of policy that has found favor in recent years.

Product Safety

The bill also shifts the basic approach to toy regulation from a model in which toys are released and then recalled if they turn out to be unsafe to one in which toys must be tested by a third party before they can be sold in the first place.

Of course, the most likely source of information about an unsafe product is the company itself, so the bill adds protections for whistle-blowers who provide information about unsafe products. Whistle-blower protection is never popular with industry, where it’s perceived as an opportunity for bad employees to protest their dismissals by claiming that they were whistle-blowers. But the same could be said of any protection extended to employees, who already enjoy enough rights that a sufficiently determined employee likely has plenty of opportunities to put up a frivolous fight over his dismissal.

The biggest fight, it appears, was over phthalates. Phthalates are a class of chemicals used to soften plastics in, among other things, children’s toys. While study of phthalates continues, their use in children’s products already was outlawed in the European Union and, via state legislation, California. Opponents argue that phthalates cause a variety of health problems, including hormone disruption and reproductive defects, but manufacturers steadfastly insist that no compelling evidence exists of danger and have hotly contested the ban. Nevertheless, in the final bill, three types of phthalates are permanently banned, while three other types are banned temporarily awaiting further study.

Congress Looks Beyond Status

According to TheHill.com, the U.S. Chamber of Commerce made the final vote on the conference committee compromise a “key vote,” meaning that it warned the members of Congress that its “scorecard” of pro- and anti-business voting behavior would score a vote for the bill as a bad vote. Apparently, this swayed nearly no one. For all but four voting members of Congress to ignore that threat may not be a sea of change, but it certainly seems noteworthy. Even the usually reliable cry that regulation is a tool for mischievous trial lawyers failed to win the day.

It remains to be seen whether the reforms at the commission will lead to changes anywhere else, but this seems to be an example of unglamorous legislation that may have greater resonance for most Americans than issues that receive more publicity. This kind of regulatory grunt work — parts per million, figuring out how to write standards that will make for safe cribs and the like — is probably where many of us commonly encounter government, and while it’s not up there with picturesque video of the Alaska wilderness when it comes to visceral impact, a beefing-up of the regulatory structure that handles safety issues could turn out to be a significant policy shift, whether you have children teething or not.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.