The CPSC Reform Act

This week, the United States Senate is considering The CPSC Reform Act (S. 2663), a bill to reauthorize the Consumer Product Safety Commission, the federal agency that protects consumers, including children, from unreasonable risks posed by consumer products.  Protecting the public is a very important governmental function.  However, the Senate’s bill contains some provisions that are overly restrictive and would have a direct and negative effect on advertisers.

The provisions would require manufacturers of children’s toys or other products containing small parts to carry a warning in advertisements, including on internet and catalogue ads, about the product’s hazards. 

ANA has two problems with these proposed requirements.  First, requiring warnings everywhere a product is discussed is excessive.  Hazard warnings are usually displayed on a product’s packaging or elsewhere at the point of sale.  It’s unlikely that requiring warnings in advertisements, which are not viewed immediately prior to purchase, would do anything to enhance consumer safety.  Additionally, some products require multiple warnings, which will just add to consumer confusion and not to consumer protection.

Second, the excessiveness of the requirements raises constitutional concerns.  The U.S. Supreme Court has held in the Central Hudson case and in numerous others that regulation in the commercial speech arena must be “no more extensive than necessary” to achieve the government’s ends.  Limiting speech can’t, as Justice Sandra Day O’Connor wrote for the Court in its 2003 Western States decision, the government’s “first resort.” 

Instead, we have urged the Senate to consider the House of Representative’s approach to this issue.  Rather than mandating requirements for all ads, the House version allows the CPSC to conduct a rulemaking to determine what types of warnings should be required.  A rulemaking would allow for more flexibility and provide the affected industries more input into the eventual rules.   

We have sent a letter to all 100 members of the Senate detailing these concerns.  You can read that letter at http://www.ana.net/advocacy/getfile/1301.  We hope that the Senate will take our views into account as they consider this important legislation.