Total Recall: The Need For CPSC Reform Now July 2008 Page 7 emerged in conference negotiations, with industry working behind closed doors to win a sweeping curtailment of state safety protections. Not only would this harm consumers; it is something that neither the House nor the Senate bill provides and therefore is inappropriate for the conference committee to consider. The toy industry and other manufacturers are now demanding that limits on state authority be expanded to one of the anticipated centerpiece provisions of the new law, its House and Senate passed provisions establishing that children’s products be subject to third party testing. Neither the House nor Senate even discussed, let alone approved, a provision placing limits on state authority regarding testing. While our organizations view preemption as often problematic, it is especially wrong to bar states from protecting their residents from emerging hazards that Congress cannot anticipate or to limit the possibility of state action in emerging areas of the law, where new threats could arise that were not anticipated nor protected against by the Congress. The states have a demonstrable track record of acting quickly to respond to new threats or gaps in federal law. This year alone, several states passed new product safety laws; others have brought important enforcement actions against firms that have violated state consumer laws. These actions have served as an important bulwark against unsafe products. Conversely, Congress has not reauthorized the CPSC since 1990 and has not significantly amended its power since 1994; then, its action was in response to a new state law. Also the CPSC’s rulemaking procedures are more cumbersome than those of other agencies, making it difficult for the CPSC to enact new safety rules. In the past, this has meant that the agency has allowed industry to self-regulate. Subjecting the new, unproven, untested third party testing regime to a broad preemption scheme risks consumer safety by taking away the power of states to react more quickly and nimbly than the Congress or the CPSC to new threats. The notion that even a strengthened CPSC would be capable of protecting everyone from every hazard is unrealistic. But more troubling would be the permanent lockdown on any state action in this emerging and unproven area of third party testing. Further, industry’s claims about the compliance cost of “50 different laws” are unsubstantiated. Our nation’s state structure is predicated on the assumption that states will and should pass different laws, and most industries operate comfortably within this framework. If new hazards arise, it is entirely appropriate to leave the states the authority to act further. In May 2008, 50 state and territorial Attorneys General wrote to the product safety conference managers, saying, “We do not believe that Congress intends to deprive states of the traditional tools needed to protect the health and safety of their citizens.” Indeed, Congress should maximize the consumer protections available to children and families, which includes allowing states to enforce strong product safety laws. The existing Consumer Product Safety Act limits state authority in many ways.8 Those limits should not be expanded. Preemption of third party testing must be rejected.