Update: Federal Lead Legislation

The Consumer Product Safety Commission (CPSC) Reform Act, or S. 2663, passed the Senate on March 6 by a vote of 79-13. Sponsored by Sen. Mark Pryor (D-AR) with 10 cosponsors, S. 2663 was a compromise bill drafted by the Senate Majority and Minority after several weeks of discussions that provides additional funding and resources to CPSC in the wake of a large number of toy recalls related to small parts and lead hazards last year. S. 2663 seeks to reduce residual lead levels in consumer paints from 600 ppm to 90 ppm within one year after enactment.

A provision in the bill allows a State Attorney General to bring a civil suit in federal district court on behalf of state residents to enforce any statutory violation of the CPSC Reform Act, including failure to recall an allegedly defective product. The bill authorizes CPSC to intervene in the civil action. However, the State Attorney General may not bring a civil action if CPSC has already initiated one. In addition to the Attorney General provision, there is a “whistleblower” provision in S. 2663. Whistleblowers with relevant information may receive 15-25 percent of civil penalties collected by CPSC in a civil suit. If the suit is brought by a State Attorney General instead of CPSC, CPSC may determine the appropriate percentage of civil penalties to be awarded to the whistleblower.

H.R. 4040 is a companion bill to S. 2663. Also known as the Consumer Products Safety Modernization Act, H.R. 4040 was sponsored by Rep. Bobby Rush (D-IL) and had 106 cosponsors and passed the House on Dec.19, 2007 by a unanimous vote of 433-0. The House bill would reduce levels from 600 ppm to 90 ppm within 180 days after enactment. It also authorizes State Attorneys General to file civil suits against companies that violate the CPSC Reform Act in federal district court. Like the Senate bill, it would allow the CPSC to intervene in civil suits, and also prevents a State Attorney General from filing a suit if the CPSC has already initiated one. However, H.R. 4040 does not provide a whistleblower condition.

On the same day it passed, S. 2663 was rolled into H.R. 4040. At press time, conferencing of the combined H.R. 4040 bill to resolve differences between the two pieces of legislation represented in the bill was expected to begin sometime in April.

It is very likely that H.R. 4040 will be sent to the President for signature with the residual lead reduction and State Attorneys General provisions intact. However, since the original H.R. 4040 doesn’t include a whistleblower provision, and the original S. 2663 does include one, this issue will have to be resolved during April conferencing of the new H.R. 4040. Given that the bill is focused on the safety of children’s products, it will be difficult for the President to veto the bill. If the President does veto the bill, Congress will likely have enough votes to override his veto. The underlying question is how long companies will have to comply with the provision that requires residual lead levels to be reduced from 600 ppm to 90 ppm in consumer paints. Compliance in as little six months from the date of enactment may be required.

For more information: contact NPCA's Stacey-Ann Taylor.

Source: May 2008 Coatings, posted 3/31/08