8. CONSUMER PROTECTION: DEMS, GOP SPAR OVER LEAD LIMITS IN TOYS (04/08/2011)

Jeremy P. Jacobs, E&E reporter

House Republicans and Democrats clashed fiercely yesterday over how to reform lead regulations in a consumer protection law that received overwhelming bipartisan support when it was approved in 2008.

The haggling over draft legislation from Republicans on the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade foreshadows a long and likely hostile fight between the two parties, as well as industry and public health advocates.

At issue is draft legislation to amend the 2008 Consumer Product Safety Improvement Act (CPSIA). The law sailed through Congress in response to an uptick in children's product recalls and reports of other product safety issues. It received only one "nay" vote in the House.

The measure provided a significant financial boost to the Consumer Product Safety Commission and temporarily set a limit of 300 parts per million for lead in children's products. If no new legislation is enacted, that limit will tighten to 100 ppm this August.

That lower limit has been opposed by a wide swath of industry including children's books publishers as well as bicycle and all-terrain-vehicle (ATV) manufacturers. And the upcoming deadline, said subcommittee Chairwoman Mary Bono Mack (R-Calif.), has spurred action on Capitol Hill.

"Congress must move quickly," Bono Mack said at a hearing on the bill, "because the clock is ticking. Unless we act soon, the 100 ppm lead limit will take effect retroactively in August and once again millions of dollars worth of products will become illegal to sell, donate or export."

The draft legislation makes several changes to the lead standards established by CPSIA. It would postpone the August deadline to step down to the 100 ppm level and make the limit applicable to products only after the deadline becomes effective -- so products manufactured before the deadline could still be sold if their lead content exceeds the limit. The bill also would allow the sale and distribution in most cases of used products that do not meet the lead limits.

The measure also seeks to set less stringent lead limits on parts of children's products that cannot be swallowed and would exempt goods with small amounts of lead altogether if they cannot be swallowed.

Lastly, the bill would change the definition of a "children's product" from one designed for children 12 years old and younger to a yet-to-be-determined lower age. That would effectively reduce the number of products regulated under the law.

While Republicans cast the draft bill as an effort to give CPSC more flexibility in implementing the requirements, they also have charged that the CPSIA lead standards are stifling business (E&E Daily, Feb. 18).

Democrats, however, said that the legislation takes a "wrecking ball" to CPSIA.

Energy and Commerce Committee ranking member Henry Waxman (D-Calf.) accused Republicans of proposing a lopsided bill after he worked with the GOP during the last Congress to try to amend CPSIA.

"Democrats, consumer groups and health experts were not consulted," Waxman said of the current draft legislation. "The result is a one-sided proposal that provides relief to industry but sacrifices children's health and safety."

Waxman added that "there is no chance that a bill this extreme could ever become law," noted that it won't survive in the Senate and "would be vetoed by the president."

Republicans were prepared to return fire. Rep. Joe Barton (R-Texas), who was the ranking member of the Energy and Commerce Committee in the last Congress, said Waxman's claim that he solicited Republican input was off base.

"We weren't listened to in the last Congress," Barton said. "Chairman Waxman and his allies were almost totally inflexible in trying to come to some common ground."

Waxman later called those charges "erroneous" and noted that several GOP proposals ended up in his proposed law.

Bono Mack's draft legislation was roundly criticized by some public health advocates. Dana Best of the American Academy of Pediatrics (AAP) said it would significantly undermine the original intent of CPSIA.

"The AAP is therefore deeply concerned that the subcommittee is considering legislation that would profoundly alter CPSIA and could review the progress toward safer toys and children's products," Best said.

Best argued that any reduction of the lead limits would be a step in the wrong direction because lead exposure at any level is harmful to children. The proposed bill, she said, "would return us to the pre-CPSIA state of affairs where consumers were forced to guess what products are safe."

Toxicologist Barbara Beck, however, said the lead requirements should be risk based. The presence of lead in a product, she said, does not necessarily pose a threat to a child's health. It is the level of exposure, she said, that determines risk.

As an example, Beck said her tests on ATV handlebars revealed that a child touching them would be exposed to less lead than if he or she drank a glass of water.

Aspects of the legislation -- such as reducing the age defining a "children's product" -- received support from several industry groups, including the Bicycle Product Suppliers Association and Motorcycle Industry Council.

CPSC Chairwoman Inez Tenenbaum has asked Congress for more flexibility in granting exceptions to the lead requirements, including for ATVs and bicycles (E&E Daily, Feb. 18).