When Congress returns to Washington next week, a top priority will be agreeing upon a Consumer Product Safety Modernization Act they can send to the President. Consumer safety advocates are crossing their fingers that the bill will essentially replicate the Senate version that passed 79-13.

A Congressional re-authorization of an independent federal regulatory agency is not the first place to turn for exciting sociopolitical changes. But implementation of the Senate’s CPSMA would both transform the Consumer Product Safety Commission and signal a clarion call for a government that is both bigger and stronger.

The legislation, principally written by Sen. Mark Pryor (D-Ar.), chairman of the commerce committee, more than doubles the agency’s money and staff. It makes it less risky and more profitable to sue retailers and manufacturers. It even calls for a government-run public database warning citizens about every harmful product on the market.

The Senate almost unanimously agreed: industry and the magic of the market cannot solve this problem. The 13 Republicans who did vote no gave an uninspired condemnation of the bill, calling it a bonanza for trial lawyers.

Consequently, CPSMA repudiates the Bush administration’s approach to regulation, best articulated by conservative forebear Ronald Reagan: “Government is not the solution—government is the problem.”

Reagan translated his words into action when it came to the CPSC. When he entered office in 1981, the ten year-old agency had 900 employees. When Reagan left eight years later, it had 450 employees to regulate virtually every product that’s not an automobile (that’s the National Highway Traffic Safety Administration), or a food, drug or medical device (Food and Drug Administration).

That staff number has stayed the same, even though sweeping macroeconomic changes have expanded and complicated the agency’s mission. Since the last CPSC re-authorization in 1990, many of the approximately 15,000 products the agency regulates started getting produced overseas.

The problems with this arrangement are now well documented thanks to last year’s toy recalls. Indeed, the attention paid to what U.S. PIRG consumer lobbyist Ed Merzwinski called “tainted iconic symbols of childhood” was a blessing in disguise to consumer advocates.

“It was the perfect storm of China, major companies, and many recalls,” Merzwinksi said. “And it all happened in August during Congressional recess and there’s nothing else to write about. We told the national press what for 20 years we had been telling 5 reporters.”

The media attention continued when Congress returned and the world was introduced to Nancy A. Nord, acting chairwoman of CPSC. Nord testified to the Senate commerce committee in October that she opposed legislation that would give her agency more money and greater power to police the consumer marketplace. “I’m not trying to fight with you,” Pryor exclaimed to Nord. “I’m trying to get you more money!”

In November the Washington Post reported that Nord and former CPSC Chairman Harold Stratton had taken almost $60,000 worth of international travel, paid for by the industries their job is to regulate. The report not only further embarrassed CPSC. It also cast Nord as in the pocket of industry, rather than a principled opponent to big government.

So in the midst of December holiday shopping, the House passed the Consumer Product Safety Modernization Act. The bill made testing mandatory on all toys designed for children under 12. It is the Senate’s version of the bill, however, that has advocates excited. The Senate legislation expands staff to 900 and funds to $156 million by 2013. It adds 50 port inspectors by 2010.  There are currently just 15 inspectors, and the increase should  help  the CPSC  intercept a portion of  dangerous products before they can reach retail distribution.

The Senate’s CPSMA is also intended to make it easier for consumer to file complaints. It provides whistleblower protections for industry and federal workers. It increases the maximum civil penalty on industry from $1.8 million to $20 million. And the bill empowers state attorneys general to investigate consumer complaints.

Finally, it entrusts government to keep a comprehensive database on the CPSC web site of all the complaints made by whistleblowers, consumers, hospitals and anyone else about potentially dangerous products.

“This bill goes a long way in improving the status quo,” said Rachel Weintraub, director of product safety for the Consumer Federation of America. Weintraub is pushing, in particular, for mandatory pre-market testing for toys to be included in the final bill.

Even CPSC is taking a favorable line on the Congressional legislation. Spokeswoman Julie Vallese said the agency is appreciative of the Senate’s attention and more money for staff scientists and inspectors.

There’s no guarantee that the good vibes among consumer advocates will continue after the bill is marked-up in the House and Senate’s conference committee. “The Senate legislation is much tougher than the House legislation,” said Don Mays, senior director of product safety at Consumers Union, a research and lobbying organization that releases Consumer Reports magazine. “There are some provisions that industry has objected to, like the state attorney’s general provision and the whistleblower provision.”

The closed-door conference process is notorious for slipping in amendments favorable to unpopular, but politically influential, special interests. “We’re looking at the safety of 15,000 products from chainsaws to escalators to coffeemakers,” complained Merzwinski. “So every manufacturer is against us and that is what has kept us down for years.”

What has transpired so far, though, indicates a conventional wisdom more favorable for consumer advocates than it’s been in decades. What is being said about CPSC is what is being said about the State Department, EPA, FEMA, CIA  and myriad other elements of the federal bureaucracy.  Government is not the problem.  Underfunded, understaffed, unprepared, under siege government is the problem.

Matthew Blake

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