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Consumer Product Safety Modernization Act--Conference Report

Floor Speech

Location: Washington, DC




Mrs. McCASKILL. Mr. President, I would like to engage in a colloquy with the Senator from Arkansas. The whistleblower protection provision is an enforcement cornerstone of this legislation because it creates a legal right for private employees to help enforce consumer protection laws. It is important to underscore the Senate's intent that this provision builds upon ``best practices'' in whistleblower laws.

Mr. PRYOR. That is correct. The whistleblower provision should be interpreted broadly and consistent with ``best practices'' to achieve the law's purpose. For instance, ``employee'' is defined broadly to include individuals in any dimension of the employment concept: incumbent or former employees. It protects all individuals who have received compensation to engage in activities for which the corporation is responsible. The law's purpose may not be circumvented by hair-splitting interpretations that plug safe channels for witnesses to disclose relevant evidence of safety hazards.

Mrs. McCASKILL. Furthermore, it is not Congress's intent to substitute these whistleblower protections for other preexisting rights and remedies against unfair employment practices.

Mr. PRYOR. Yes. Consistent with long-established Supreme Court case law see e.g., English v. General Electric, 496 U.S. 270, 1990--these rights do not cancel or replace preexisting remedies, whether under other overlapping congressional statutes, State laws, State tort claims or collective bargaining agreements.

Mrs. McCASKILL. Companies should also not look to override the whistleblower protections through nondisclosure policies or agreements such as company manuals, prerequisites for employment or exit agreements.

Mr. PRYOR. There should be no confusion that the rights for protected activity created by this statute are the law of the land. They supersede and cannot be canceled or overridden by any conflicting restrictions in company manuals, employment contracts, or exit or nondisclosure agreements.

Mrs. McCASKILL. Thank you for engaging in this colloquy with me to reaffirm the rights conveyed in the whistleblower provision. This provision is one of many in this legislation that reflects on the skill you have demonstrated in guiding this bill through the Congress.


Mrs. BOXER. I rise to discuss with Senator PRYOR, the distinguished chairman of the Subcommittee on Consumer Affairs, Insurance, and Automotive Safety, and lead sponsor of the Senate legislation, the preemptive effect of certain provisions in H.R. 4040.

I am pleased that the bill protects State warning laws related to consumer products or substances, such as California's Proposition 65. The conference report clarifies that any such warning laws in effect as of August 31, 2003, are not preempted by this act or the Federal Hazardous Substances Act. This important clarification effectively harmonizes the four statutes that are enforced by the Commission. Other laws enforced by CPSC, including the Consumer Product Safety Act, clearly do not preempt or affect State warning requirements like Proposition 65. The Federal Hazardous Substances Act, however, is arguably ambiguous as to its effect on State warning requirements. I am pleased that we have eliminated this ambiguity with this conference report and harmonized all of the Commission's statutes on this point.

I yield to Senator PRYOR, and ask: Is it also your understanding that nothing in this legislation or any of the laws enforced by the Consumer Product Safety Commission will preempt or affect Proposition 65 in any way?

Mr. PRYOR. Yes, that is my understanding.

Mrs. BOXER. My second inquiry relates to the bill's provisions on phthalates. I am pleased that the language preserves the ability of States to regulate phthalates in product classes that are not regulated under this legislation, as well as States' ability to regulate alternatives to phthalates, such as other chemical plasticizers that might be used as substitutes to the phthalates that will be removed from toys under this law. I yield to Senator PRYOR and ask, is it your understanding this law does not preempt or affect States' authority to regulate any alternatives to phthalates that are not specifically regulated by the Commission in a consumer product safety standard?

Mr. PRYOR. Yes, that is my understanding.

Mrs. BOXER. I also ask the distinguished floor manager Senator PRYOR to confirm my understanding that the third-party testing provisions of the conference report have no preemptive effect on State or local testing related requirements. Is my understanding correct?

Mr. PRYOR. Yes, the bill leaves such authority to impose testing requirements in place without preemption.

Mrs. BOXER. Finally, I wanted to confirm my understanding that the conference report makes it clear in section 106(h)(2) that State or local toy and children's product requirements in effect prior to enactment of this bill are not preempted by this legislation or by the Consumer Product Safety Act. Is my understanding correct?

Mr. PRYOR. My colleague is correct. The legislation does not preempt or otherwise affect State or political subdivision requirements applicable to a toy or other children's product that is designed to deal with the same risk of injury as the consumer product safety standard, if such State or political subdivision has filed such requirement with the Commission within 90 days after the date of enactment of this act.

Mr. INOUYE. Mr. President, I yield now to the author of the measure, Senator Pryor of Arkansas, the balance of my time.

The PRESIDING OFFICER. The Senator from Arkansas is recognized.

Mr. PRYOR. Mr. President, the first thing I want to say is this is a great bill. It is something every Senator should be proud of, because what we saw in 2007 was a record number of product recalls. In fact, last year, there were 45 million toys that were recalled. Every single toy was made in China that was recalled last year.

Unfortunately, it doesn't stop there. In 2008, we are 29 percent ahead of the schedule we set back in 2007. So this problem is not going away. This is a great bill, and this is a classic example that bipartisanship works.

We did this bill the way bills ought to be done. We worked it out in committee. I see that Senator Stevens walked onto the floor. He played a vital and important role in the committee process and afterward. We worked together with Democrats and Republicans, and the House worked with the Senate. It has been a great example of how things can and should work around here.

We added third-party testing for toys. We added a new database for people to search to look at complaints about products. We give the Attorney General the ability to follow what the CPSC has done and get dangerous products off the shelves. We add whistleblower protection, so if people in the private sector know about a dangerous problem and reveal that, they don't lose their jobs. We increase civil penalties to make sure these companies--especially the ones who are repeat offenders--will know the CPSC has the authority to enforce what they do and make them feel the pain of that. We ban lead in children's products.

We move the commission, which used to be a five-member commission and is now down to three, back to a five-member commission.

We change the rulemaking process so that the authority rests with the CPSC again and not with the industry.

I could go on and on about the great things in this legislation. I know my time is short. Mr. President, how much time do I have?

The PRESIDING OFFICER. Five minutes.

Mr. PRYOR. Mr. President, I want to make sure I thank the people who deserve the lion's share of the credit. Senator Stevens was critical. He came in at a very important time, early in the process, and helped shape the bill and helped to get us from a Democratic bill to a bipartisan bill that got us to where we are today. In fact, the House voted last night 424 to 1 to pass this.

I also thank Senators SUNUNU and HUTCHISON. Senator Inouye, chairman of the Commerce Committee, was fantastic. Senator Boxer was great; she
was very focused on several issues. Senator Klobuchar, although a new Senator, had a positive impact on the process. It was an honor to work with them. Also I thank several House Members, of course, including Chairman Dingell and Congressman Barton, fantastic partners over there, who worked hard to get this done. And also Speaker Pelosi weighed in at the end to make sure we got it done.

Maybe more important than all of us is the staff. We have a lot of staff sitting on the back benches. They have spent countless hours on this bill. They have been here weekends, in the evenings, and they have been haggling over every word, comma, and paragraph. I am so grateful to all of them.

The people on my staff include Andy York and Price Feland. When you look at the Commerce Committee, there is David Strickland, Alex Hoehn-Saric, Jana Fong Swamidoss, Mia Petrini, and Jared Bomberg. They were great. Of course, on the Republican side are Paul Nagle and his team, including Megan Beechener, Becky Hooks, Bridget Petruczok, Erik Olson, Kate Nilan, Tamara Fucile, Brian Hendricks, and Peter Phipps.

Also, I thank the CPSC commission. They helped as did their staff. Commissioner Moore, and Michael Gougisha and Pam Weller of his staff, as well as Jack Horner of the acting chairman's staff, all of these people played a key role in getting us to this very good bipartisan piece of legislation.

As I said, this is something of which the Senate and House can be very proud. Today, the White House announced they will sign the legislation. This is a major victory for the American people. Again, we followed the rules, we followed the correct process here. We got this done and we are going to make a big difference in the American marketplace.

Mr. President, I will turn it over to my colleague from Texas.


Mr. PRYOR. Mr. President, Senator Hutchison said something that is very important. We did focus on toys. Toys capture the imagination of the American public because no parent or grandparent wants to buy something and give it to a young child which could harm or, in some cases, kill them. That is the type of thing that grabs the headlines. Let me tell you, a couple of levels deeper, one of the ways we make toys safer for kids all over this country. What we did in this legislation is we established a statutory toy standard. Once we have that standard, and allow the CPSC to modify it over time, once that is in the statutes, that means we can test for that standard.

This bill has mandatory toy testing. For the first time ever, we are going to test these toys to make sure they meet the U.S. safety standards before they are ever sold in the marketplace.

If you think about a recall, a recall is a very uneconomical--I will use that term--and inefficient way to find a dangerous product. So the manufacturer comes over here with a product--many cases from overseas--and it is distributed, sold, and it injures someone, and the recall happens, and these products are all over America. We are streamlining it and making our marketplace more efficient and better for people all over this country.

I will end where I started. I see Senator Sununu here, who played a very key role. All of the Senators helped in some ways. Again, I will end where I started, and that is that this is a great piece of legislation. It really is. The American people will be so pleased with the work we have done to get this passed and get the President to sign it. It will make a big difference in everyone's lives all over this country. Again, it shows what we can do if we work together to solve our problems.

I am very honored and privileged to have Senator Inouye designate me as the lead guy on our side to do this, and to watch Senators Stevens and Inouye work together. They set the pace on this legislation.

I thank the Chair.

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