Congress never acts to protect consumers unless the states act first or there is a massive scandal. But the scandal needs to be massive to get the sustained attention of the Congress. In 2002, we would not have enacted the Enron reform law known as Sarbanes-Oxley (industry had effectively stopped it) until WorldCom joined the scandal and the President had to run up to Wall Street to promise to restore faith in the markets.
In 1994, Congress passed the Child Safety Protection Act, its last substantial amendment to the toy safety laws. We had to drag the toy industry, kicking and screaming, to the table. The way we accomplished it? After ten years of non-action by either Congress or the CPSC on well-known choking hazards, the state PIRGs launched a state-by-state campaign to enact stronger standards. Following passage of Connecticut's law, and the quick slapdown by the U.S. courts of the industry's attempt to strike it down, the industry crawled back into Washington to announce it would no longer block reform.
Now, the multiple Mattel/Fisher-Price and other China recalls may be piling up into a big enough scandal that we can enact better import protections, toughen the CPSC's regulatory authority and get it more money and resources to protect American families from product hazards. In today's New York Times, Eric Lipton and Louise Story report that Toy Makers Seek Standards for U.S. Safety.
We haven't seen their plan for mandatory third-party pre-market testing. Since the makers are already responsible for guaranteeing that toys entering into U.S. commerce meet U.S. standards, they should be doing third-party testing already. The real questions here are raised by Don Mays of Consumer Union in the story. He said that "if the proposal was going to be effective, the government would also have to ensure that the tests were being done often enough, and spot-check products coming into the country to make sure that they were safe."
And we would add this: We question the industry's motives. Are they trying to reassure the public or create a liability shield? Congress must be clear that any additional requirements on the industry should not automatically grant immunity from private enforcement by aggrieved consumers. Why?
(First, see the previous blog on the medical device case before the Supreme Court. Second, see the only "achievement," if you can call it that, of the last CPSC chair, Hal Stratton. His mattress flammability rule attempts to restrict consumer lawsuits over burn injuries.
A manufacturer's compliance with minimum federal standards should never take away remedies for consumers. Not only are these often the only way consumers can be compensated for their injuries, but the threat of lawsuits acts as an additional protection against making dangerous products.
