To prohibit State attorneys general from entering into contingency fee agreements for legal or expert witness services in certain civil actions relating to Federal consumer product safety rules, regulations, standards, certification or labeling requirements, or orders.

CPSC REFORM ACT

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to the consideration of S. 2663, which the clerk
will report by title.
The bill clerk read as follows:

A bill (S. 2663) to reform the Consumer Product Safety
Commission to provide greater protection for children's
products, to improve the screening of noncompliant consumer
products, to improve the effectiveness of consumer product
recall programs, and for other purposes.

The ACTING PRESIDENT pro tempore. The Senator from Arkansas.

Amendment No. 4090

Mr. PRYOR. Mr. President, I have an amendment at the desk, No. 4090,
that I wish to call up.
The ACTING PRESIDENT pro tempore. The clerk will report.
The bill clerk read as follows:

The Senator from Arkansas [Mr. Pryor] proposes an amendment
numbered 4090.

The amendment is as follows:

(Purpose: To correct a typographical error.)

On page 87, line 11, strike ``cigarette'' and insert
``Cigarette''.

Mr. PRYOR. Mr. President, we are today, once again, starting the
debate on the Consumer Product Safety reform bill. This is a very
important piece of legislation, and I am sure Senators from all over
the country have heard from their constituents about this because we
saw last year a record number of product recalls, especially in the toy
area. We saw last year recall after recall after recall, and some of
the news stories that made the headlines were about lead in toys, but
certainly the recalls last year were not in any way, shape, or form
limited to lead.
Lead is a very serious problem. We deal with lead in this
legislation. In fact, we virtually ban lead in all children's products.
That is a very important new safety rule. If the Senate adopts this
measure, the new safety rule would be that there is a very tough
scientifically based lead standard for toys.
When I say ``virtually ban,'' I do think it is important for my
colleagues to understand that we can probably never absolutely get rid
of lead in any product because there is some lead out in the
atmosphere. It is a naturally occurring element. But we virtually ban
lead in all children's products.
Another thing that we do, which I think is very important, is
illustrated by this chart, and that is we recognize the changes in the
U.S. economy. The last time the Senate reauthorized this legislation,
which was in 1990 or 1992, we have to think about what the U.S. economy
looked like. If you think about how many imports we had coming into
this country from overseas, one of the things this chart illustrates is
the number of imports in dollar figures, starting in 1974 and going up
here to the year 2006. The actual numbers and the years aren't as
important as the trend line. You can see what is happening with imports
coming into this country.
We all know we are getting more and more imports, and one of the
things I think we need to fight for is our U.S. manufacturing base, but
that is not the discussion we are having here today. We are seeing more
and more imports coming into this country. However, at the very same
time, over the very same years, if you go to this bottom chart, again
starting in 1974 and going up to this year, you will see what the
Consumer Product Safety Commission's staff has done year by year.
Unfortunately, you see it peak in about 1980 or so, and then it
starts to drop off dramatically. Here again, the numbers are not as
important as the fact that you see this downward trend when it comes to
employees at the Consumer Product Safety Commission. The reason that is
important--and, by the way, the numbers are 420 full-time employees,
and at the height of the agency there were about 900. But those numbers
are not as important as the trend. You can see that today we have less
than half of the full-time employees at the CPSC as they did 20 years
ago.
The problem is when you compare these two charts. Again, I totally
understand we can work more efficiently today with things such as
computers and telecommunications and all that. We can work more
efficiently. We can do more with fewer people. I do acknowledge that.
But when you look at how the imports have grown and how the Consumer
Product Safety Commission staff has shrunk, that explains why you see a
record number of recalls. That explains why you see millions and
millions of products being pulled from the shelves last year. Because
as the Consumer Product Safety Commission has become less capable, less
able to deal with the changes in the import economy, what you are
seeing is more and more dangerous products coming into this country.
I don't think it is an accident. My colleagues need to know that I
don't think it is an accident that last year every single toy recall--
and we will talk more about this in a few moments--but every single toy
recall from last year was made in China. None of these were U.S. made.
In fact, they weren't made in any other country except China. So we
need to reexamine the priorities of this agency. We need to restructure
the agency in such a way that it meets the needs of the changing U.S.
economy. We need to help this agency right here, when it comes to
dollar amounts and full-time employees for this agency.
Again, it may be another discussion where we try to help the U.S.
economy here in the number of imports and try to manufacture more
products here--that is another bill and that will come at some point in
the future--but right now this is what we are focused on, is trying to
make sure that the Consumer Product Safety Commission is equipped to
handle the changes in the U.S. economy.
Mr. President, I see Senator Klobuchar is here, and she wishes to say
a few words. I will be on the floor all day today. I encourage my
colleagues to come down and talk to me if they have amendments.
Certainly we have seen a growing list of amendments. My hope would be
that all the amendments would be germane and that we could maybe get a
bipartisan agreement on amendments.
I know Senator Stevens has been very good to deal with on this
legislation. He and I have not talked about any of the amendments yet.
I think our staffs have been talking with each other. But I encourage
my colleagues to come to the floor when it is convenient, or send their
staff over when it is convenient to talk about whatever

[[Page S1496]]

amendments they maybe wish to offer. I know we had some meetings last
night with various staff people on certain Senators' staffs on the
Republican side of the aisle, and certainly we have an open door to try
to talk through those.
One last thing, again for the staff members watching this on C-SPAN
and for the folks all around this country who are watching it on C-SPAN
2. We have made many changes in this legislation since it left the
committee, and we have listened and we have worked very hard to try to
find common ground on a whole variety of issues. When we started, there
were maybe 20 or 30 or 40 controversial parts to this bill. I think we
are now down to two or three. I am not sure that anyone has put a
number on it, but we have worked very hard to try to come up with a
bill that can have bipartisan support and something that people all
over this country can be very proud of.
With that, Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. President, I am proud to be a member of the
Commerce Committee that passed this legislation through the committee
under the leadership of Chairman Inouye, Senator Stevens, and the
Consumer Subcommittee Chairman Pryor. I am also glad this legislation
includes the bill I introduced that finally put a mandatory ban on lead
in children's toys.
This legislation has been called by the Wall Street Journal as ``the
most significant consumer-safety legislation in a generation.'' That
comes from the Wall Street Journal. But what this is about is not all
the details of all the toys, which I am going to talk about in a
minute, and the 29 million toys that have been recalled and what this
has meant to our economy, but what this is about are these little
children.
Senator Pryor and I just left an event where two children, their
families, their mothers, were there to talk about what had happened to
them. The first was this little boy named Jacob. His family is from
Arkansas. The mom painted this picture for us. Look at this little boy.
She painted this picture that I will never forget, of her standing in
the kitchen one day and all of a sudden they see their little boy and
he is practically limp. Just like that he went from being a happy
little boy playing.
What happened is he had swallowed one of these Aqua Dots toys, one of
these toys you put in water and it expands to an animal or whatever it
is. He had swallowed it. So he is getting more and more limp, and
finally the ambulance comes and they end up in the hospital. Within an
hour, he is completely unconscious. They have no idea what is wrong.
Unconscious. They thought maybe he had swallowed a little toy, maybe
something that you would think would be in his stomach creating some
indigestion or something such as that, but the hospital tries
everything they can think of. They thought maybe he had accidentally
gotten into their medicine cabinet and they didn't know it and took
some medicine and something happened. So they gave him drugs to try to
reverse it, but he wouldn't wake up. It was a complete puzzle because
they didn't know how this could have happened. Nothing they tried
worked.
Finally, 6 hours later--and the doctor said if he hadn't been there,
he wouldn't have believed it--with all these tubes connected and
everyone thinking they are going to lose him, he wakes up and he is
fine. And they think: How could this happen? What is wrong? And they
simply don't know.
So they call the company that manufactures these Aqua Dots and they
try to write them. The mom gets home the next day and gets on the
Internet with bloggers trying to figure out what could be wrong. She
writes letters to the company, trying to get information.
Well, finally, they tested him some more and they tested these Aqua
Dots some more. And what did they find? They found that the Aqua Dots
contained a chemical that was really the date rape drug.
The date rape drug, as a prosecutor, I can tell you that we handled
those cases where women have been slipped one of those drugs in their
drink; they are suddenly completely out of it and do not know what
happens. You know the crimes that have occurred as a result there.
But here is this little boy swallowing a dot, a dot that had the date
rape drug in it manufactured in China. And that mother stood here with
Senator Pryor and me and told this moving story and said: This cannot
happen to other parents.
She said: The Senators in this body, why do they not think if this
happened to their kid or their grandkid where they suddenly swallow a
little toy and are out like that. It is like swallowing a gumball, out
like that for 6 hours thinking they are going to die.
Then there was another mother who came from Oregon. She told the
story of her son, whom we see now years later, Colton. When he was very
little, he swallowed a charm they had gotten from some one of those
little vending machines that you put your money into.
He swallowed it. And all of a sudden she said he started acting
completely lethargic, not at all like the little toddler he was. And
they brought him into the hospital and they found out that charm was 39
percent lead, 39 percent lead.
Now, their story, unlike the story of little Jacob, did not end
there, because he has that lead permanently in his system. And today,
years and years later when they go to the doctor, he is still tested
for elevated lead levels. And, in fact, even a few days after he got
home, after they had gotten the charm out of his stomach, he bit his
cheek and his cheek swelled up to the size of a golf ball because of
the lead that was in his system.
That is what we are talking about--moms getting little charms that
their kids swallow, which used to be maybe if you swallowed a penny,
having this kind of health effect.
We all know what lead can mean. I certainly know in Minnesota where
we had a little boy whose mom was not with us today. The mom was not
there because her heart is broken. Her little 4-year-old boy died when
he swallowed a charm that turned out to be 99 percent lead. And he did
not die from choking, he did not die because it blocked his airway, he
died because that lead seeped into his system day after day. And when
he died, he was tested at three times the normal lead level.
In 2007, nearly 29 million toys and pieces of children's jewelry were
recalled because they were found to be dangerous and, in some cases,
deadly for children. As a mom and a former prosecutor and now as a
Senator, I find it totally unacceptable that these toxic toys are in
our stores and on our shores. As my 12-year-old daughter said when she
found out that the Barbies were being recalled, she said: This is
getting serious.
The provision of the Consumer Product Safety Commission Reform Act
that I authored addresses some of the most serious discoveries of this
past year. And that is the lead that has been surfacing in these toys.
The toy that little Jarnell Brown swallowed that led to his death was
made in China. It was 99 percent lead.
The toy that little Colton swallowed that nearly led to his death and
has led to elevated lead levels in his bloodstream for many years was
39 percent lead.
These deaths, these injuries have been made so much more tragic by
the fact that they could have been prevented. These little boys should
never have been given these toys in the first place. It should not take
a child's death or severe injury or a child swallowing an Aqua Dot with
a date rape drug to alert us that there is a problem in this country.
Parents should have the right to expect that these toys are tested
and that these problems are found before these toys get to the toy box.
For 30 years, we have been aware of the dangers poised by lead. We all
know about it from the lead paint standard.
But what is ironic to me is we have a Federal standard for lead
paint, we have a standard, but we have never had a standard for lead in
toys or jewelry; never had a standard for those little pieces of
jewelry that will end up in kids' stomachs, or how about teenage girls
who are sitting in class and chewing on a charm that they may have
around their neck--never had a standard; it has all been voluntary.

[[Page S1497]]

It is not just these cheap trinkets that are being discovered to
contain hazardous levels of lead. Last summer the CPSC recalled 1.5
million Thomas & Friends trains, including the Thomas the Train
caboose, the Thomas the Train rail car, the box car, after they were
discovered to be coated with poisonous lead paint.
A lot of those parents had bought these toys because they were wood,
they thought they would be better for their children. Many of these
products reaching retail for between $10 and $20 apiece were on the
market for almost 3 years before they were discovered to be defective,
putting hundreds and thousands of toddlers at serious risk for lead
ingestion and brain damage.
What is even worse is what happened after the initial recall. This
shows you how out of hand things have been because there have been no
set standards and no good regulations coming from the Consumer Product
Safety Commission.
After more than 3 months passed, RC2, which is the company that makes
Thomas the Train sets, realized that their first recall was incomplete.
They had asked for a recall and then they found hundreds of thousands
of additional products, many of which had been sold in the same
packaging with trains that had already been recalled, were coated with
lead paint and also needed to be recalled.
Clearly, the RC2 Corporation that manufactured Thomas & Friends
trains was embarrassed by its safety record. It apologized to its
customers, saying it would make every effort to ensure that this would
not happen again. To help encourage customer loyalty, which you can
understand in a competitive market, and to get them to return those
recalled toys, RC2 said: Okay, parents, we are so sorry this happened.
We are going to give a bonus gift for your trouble.
Well, the bonus gift backfired in a big way because it was discovered
that 2,000 of these bonus gift trains that they had given to parents
for them sending back the recalled products contained lead levels four
times higher than legally allowed, leaving parents of toddlers across
the Nation to deal with a double recall. All of these toys are
manufactured in China.

The burden should not fall on parents or kids to tell if a toy train
is coated with lead paint or if a toy has been assembled so shoddily
that it will come apart in a toddler's mouth. How would a parent ever
think an Aqua Dot would contain the date rape drug?
I think it is shocking for most parents when they realize we never
have had a mandatory ban on lead in children's products, all we have
had is this voluntary guideline. It is shocking that until this
legislation is passed, the Consumer Product Safety Commission cannot
actually enforce a lead ban in children's toys.
In response to a series of letters I wrote to Chairwoman Nord in
August about the danger of lead in children's products, the chairwoman
responded on September 11. In that letter, Chairwoman Nord acknowledged
that:

The CPSC does not have the authority to ban lead in all
children's products without considering exposures and risk on
a product by product basis.

Now, that is really going to help the family of Colton to find that
out, that our powerful Federal agency, with which we thought we had
solved all these consumer product issues back in the 1970s, that this a
safe country, does not have that authority.
Chairwoman Nord went on to say that: Were the CPSC to attempt banning
lead in all children's products, it would likely take several years and
millions of dollars in staff and other resources.
This response makes it clear that Congress cannot wait for the CPSC
to act to ban lead from all children's products. We have been waiting
for years. These parents have been waiting for years and years. This
mother who spoke with us today wrote all these letters. She has been
trying to lobby by herself on behalf of her son to make sure this did
not happen again.
And what she told me this morning was her heart broke 2 years after
her son had this horrible experience when she heard about the case of
Jarnell Brown who had died. She felt her efforts were in vain.
Well, this Congress has a duty to make sure they were not in vain.
Parents should not have to wait years for the CPSC to take action we
already know is appropriate. The medical evidence is clear and
overwhelming, lead poisons kids and there must be a Federal ban.
To talk a little bit more about the specifics, this legislation
effectively bans lead in all children's products by classifying lead as
a banned hazardous substance under the Federal Hazardous Substance Act.
The bill sets a ceiling for a trace level of allowable lead at .03
percent of the total weight of a part of a children's product or 300
parts per million.
To put that in some perspective, California has standards right now
of .04 for children's toys and .02 for jewelry. The voluntary ban that
is not even mandatory right now that the Consumer Product Safety
Commission uses is at .06. We have worked with pediatricians, we have
worked with consumer experts. We set this at a very smart standard of
.03 percent of trace levels. That ceiling would take effect in 1 year,
allowing retailers and manufacturers to comply; 2 years later the
legislation would then further drop the amount of allowable lead in
children's products to .01 percent of the total weight of a part or 100
parts per million.
Now, if the CPSC finds you can actually go below the threshold, which
a lot of pediatricians have argued we can do in this country, that we
can even get down to zero lead, that would be great.
What this law says is you do not have to be stuck up there at .01,
which is of course a small amount of trace lead. You can, in fact, do a
rulemaking and go lower for certain products or for all products.
This legislation gives the CPSC the power to lower levels even
further as science and technology allow.
The legislation before us today also sets an even lower threshold for
paint. Under this bill, the allowable lead level for paint would drop
immediately to 90 parts per million. This lowered threshold is critical
because science has shown that as children put products in their
mouths, it is the painted coatings which are most easily accessible to
kids. Every parent of a toddler knows that to be true. They can see, if
any parent looks in their toy box, all the little teeth marks, and they
know they put them in their mouth.
Under current law, the Consumer Product Safety Commission has adopted
this voluntary guideline of .06 percent. It is voluntary. That is part
of the reason it takes so long, that is part of the reason we have had
this huge delay. This puts in a mandatory guideline at .03 going down
to .01.
This legislation changes what is a bad system, a broken system, and
gives the CPSC the tools it needs immediately to go after the bad
actors who used lead or lead-based paint in their products.

To me the focus is simple: We need to get these toxic toys out of our
kids' hands, not just voluntarily, not just as a guideline but with the
force of law.
Millions of toys were being pulled from these shelves, 29 million
last year. Right in the middle of Halloween, they were pulling the
little funny teeth that you put in your mouth, Aqua Dots, Thomas the
Train, Sponge Bob Square Pants, Barbie dolls, you name it. It gives the
force of law to pull these toys from the shelves.
As if the appalling number of recalls this year is not bad enough,
these recalls illuminated other problems with pulling toys from the
store shelves, the daycare center floor or the drawer under the kid's
bed.
This I actually heard from my friends. Because once these recalls
happen, every parent runs to the kid's room and says: Okay, I have got
to find the toy that has been recalled. Now, how are you going to tell
the difference between the brunette Barbie doll, the blonde one, the
one that had this outfit on. This is practical when you are a mother.
How are you going to tell the difference between this caboose or this
box car? So they are looking at these toys trying to figure it out,
putting them up to the Web site. Because, guess what, there is no batch
number on these toys.
I have to tell you, most parents, when they get their kid a toy, do
not keep the packaging. My mother-in-law may be an exception to that,
but most parents do not keep the packaging. So what this legislation
does is it says:

[[Page S1498]]

The batch number will be on the toys whenever practical. They are not
going to go on a pick-up stick, but whenever practical, the batch
number will be on the toys so when there is a recall, the parent is
going to be able to figure out which toy it is, and also the batch
number is going to be on the packaging.
Why do we need this? Because we do know that large retailers such as
Toys ``R'' Us and Target, the minute there is a recall, they have been
very good about stopping all sales; they do it through their computer
system.
Well, some of the smaller mom-and-pop retailers do not have that
capability, not to mention eBay and those kinds of things. So we want
to make sure the batch number, in this legislation, requires it not
only be on a toy but also on the packaging.
This legislation, though, does a lot more than ban lead in children's
toys and to help parents identify recalled toys. It brings consumers
the protection that has been lacking for almost two decades. As we all
know, the CPSC's last authorization expired in 1992, and its statutes
have not been updated since 1990.
Not surprisingly, the marketplace for consumer practices has changed
significantly in the last 16 years. And we have seen through recall
after recall how ill-equipped the Consumer Product Safety Commission is
to protect consumers. Today, the Commission is a shadow of its former
self, although the number of imports has tripled, tripled in recent
years.
So what you have seen is a tripling of imports, products coming in,
and then what have you seen with the staff? Well, have you seen quite a
drop in the staff. The CPSC staff has dropped by almost half, falling
from a high in 1980 of 978 people who worked there. Okay. Well here we
go, 978 people. And what do we see in 2007? Well, we have 393
today. You wonder how are these date drugs getting into our system,
getting on to our shores. You don't have the staff adequate to monitor
these toys. So while you have seen a tripling of imports coming from
China and other places, you have seen an enormous decrease in the staff
that regulates them. In fact, much has been made of a guy named Bob who
is the only official toy inspector at the CPSC. He is retired. He was
out in a back room testing toys by dropping them to the ground. He had
all these toys on his desk. That is what we are dealing with, while we
have seen a tripling of imports and toys and jewelry that have tested
to be 99 percent lead.

What have we seen now with the recalls? We have actually seen a huge
increase in the number of recalls. As you know, part of it is because
finally you have had the businesses, once this hit the streets and was
all over newspaper headlines, saying: We finally better start testing
these products more frequently, which was a good thing. But we have
seen in 1980, 681,300 recalls. In 2007, we have seen 28,773,640
recalls, all toys that either were in parents' homes or were sitting
there on the toy shelf ready to be bought.
Let's look at a comparison so you can see why. It doesn't take a
rocket scientist. Probably my 12-year-old daughter would see what is
going on. When you look at this comparison, in 1980, you had only
681,000 toys recalled. Then you go up to 2007, where you had 28 million
recalled. Look at the staff comparisons. When you have 681,000 toys
recalled, the staff is up here at 1,000. When you have 28 million toys
being recalled, you have a staff that is half of what it used to be. So
there is a graphic depiction of what we are dealing with.
What does this legislation do? It puts 50 more staff at U.S. ports of
entry in the next 2 years to inspect toys and products coming into the
country. Not only does this bill give the CPSC the necessary funding
and staff, it also gives the commission the ability to enforce
violations of consumer product safety bills. We have seen too many
headlines this year to sit around and think about this problem and say:
It is just going to solve itself. The market will take over.
The market has been broken. The CPSC has been broken. This is the
time that Government comes in, which is reasonable, and works with
business, as we have done. I am proud of the work Toys R Us has done
with us, as well as Target, which has always been helpful in working
with us. They know it has had an effect on their bottom line.
Here is what this bill does. We can beef up this agency that has been
languishing for years. We can put sensible, responsible rules in place
that make it easier for them to do the job. This is not just numbers on
a chart. This is about a little kid that just in the last year, in the
year 2007 in the United States, could swallow just a little toy, which
kids have done for centuries, and end up in a coma, unconscious from a
date rape drug. This bill is about numbers. This bill is about our
economy. But more than that, this bill is about these kids.
I urge my colleagues to support it. I thank Senator Pryor and the
other members of our committee for their leadership.
I see Senator Durbin from Illinois. I thank him for his great
leadership on this bill. It is the most significant consumer safety
legislation in our generation, as the Wall Street Journal has said. We
have an opportunity, and we must work swiftly.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Texas.

Amendment No. 4094

Mr. CORNYN. Mr. President, I have conferred with the distinguished
Senator from Arkansas, the bill manager. I ask unanimous consent to set
aside the pending amendment, call up my amendment No. 4094, and ask for
its immediate consideration.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. PRYOR. Reserving the right to object, as soon as he finishes his
10 minutes on his amendment, we will go back to the pending amendment.
Mr. CORNYN. I agree with that.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will report.
The legislative clerk read as follows:

The Senator from Texas [Mr. Cornyn] proposes an amendment
numbered 4094.

Mr. CORNYN. I ask unanimous consent that reading of the amendment be
dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To prohibit State attorneys general from entering into
contingency fee agreements for legal or expert witness services in
certain civil actions relating to Federal consumer product safety
rules, regulations, standards, certification or labeling requirements,
or orders)

On page 58, strike lines 4 through 7 and insert the
following:
``(g)(1) An attorney general of a State may not enter into
a contingency fee agreement for legal or expert witness
services relating to a civil action under this section.
``(2) For purposes of this subsection, the term
`contingency fee agreement' means a contract or other
agreement to provide services under which the amount or the
payment of the fee for the services is contingent in whole or
in part on the outcome of the matter for which the services
were obtained.''.

Mr. CORNYN. Mr. President, I congratulate my friends, Senator Pryor
and Senator Stevens, the principal cosponsors of this legislation. I
had the great pleasure of working with Senator Pryor when he and I both
were State attorneys general. As such, we were the chief consumer
protection officers for our States and our citizens. I believe strongly
in the importance of strong consumer protection laws. I believe this
bill actually does something positive by adding to the resources
available to the Federal Government by authorizing the State attorneys
general under some circumstances to help make sure consumers are
protected and the laws are enforced.
There is also a concern I have. That has to do with the use of
outside counsel when it comes to filing legislation on behalf of a
sovereign State such as the State of Texas, the State of Arkansas, or
the like. We have seen examples of abuses in the past where State
attorneys general have essentially transferred their authority to
outside lawyers and paid them a contingency fee based on whatever the
value is of what they were able to recover by way of a judgment or
settlement. This, unfortunately, has created an anomaly under our
system of government where we have nonelected, nonaccountable private
sector lawyers who are essentially making decisions on behalf of a
sovereign State. If the people of my State, for example, don't agree
with what

[[Page S1499]]

they are doing, they essentially have no right nor ability to hold them
accountable or to demonstrate their displeasure with what these outside
counsel have done.
There is also a tremendous--and, frankly, tragic from a historical
perspective--abuse of this contingency fee arrangement when it comes to
outside lawyers. In my own State, my predecessor, as attorney general,
got caught up in one of these tragedies--there is no other word to
describe it--and actually served time in the Federal penitentiary for
directing some of the proceeds in the tobacco litigation to a friend,
an outside lawyer in the case, something that, obviously, he should not
have done and for which he has paid a high price. But it demonstrates
the type of temptation and, indeed, the potential for corruption that
exists when an elected official abdicates their responsibility and
essentially hands it over to a private individual who is not
accountable in a way that elected officials and public stewards of the
public trust are.
What this amendment does is say the State attorneys general who are
authorized under this legislation to seek an injunction in Federal
court to enforce Federal law--something I support--should play by the
same rules regarding the recovery of costs and attorney's fees. Section
20(g) of the bill awards costs and attorney's fees whenever the
attorney general of the State prevails in any civil action under
Federal consumer protection laws. But the word ``prevails'' is not
defined. Under the Consumer Product Safety Act and the Flammable
Fabrics Act, the Federal Government can go to court to seek an interim
or preliminary injunction against a company pending a determination by
the Consumer Product Safety Commission whether a product violates
either act. State attorneys general would be granted the same authority
under section 20 of the bill.
I support that because I think the additional resources over and
above what the Department of Justice and the Federal Government
currently have will help us be more vigilant when it comes to
protecting consumer safety. But to charge costs and attorney's fees
against a defendant based on a court's preliminary finding and before
the Consumer Product Safety Commission determines whether any law was
violated would be clearly unjust.
The Consumer Product Safety Act already has standards governing when
the Consumer Product Safety Commission can be awarded costs and
attorney's fees. So my amendment would make sure these same standards
would apply to State attorneys general who would be authorized to seek
an injunction under the act, that they would be no better off and no
worse off but actually in the same shoes as the current standard for
the Consumer Product Safety Commission.
My amendment also requires State attorneys general to play by the
same rules with regard to contingency fees. We want attorneys general
to bring civil cases to protect the public interest not to create a
windfall for private sector lawyers. I believe this also is consistent
with Executive order No. 13433 of May 16, 2007, that prohibits the
Consumer Product Safety Commission and other Federal agencies from
entering into contingency fee arrangements with private lawyers, and
the same standard should apply to State attorneys general under this
bill's new enforcement authorities.
I have talked to my friend, Senator Pryor, former attorney general of
the State of Arkansas. We have had a lawyerly discussion about why
would we want to ban contingency fee arrangements when the only
authority given to them under the statute is to seek an injunction and
not recover money damages or fines. The fact is, creative lawyers can
come up with ways to create a fee arrangement, even where only
injunctive relief is sought. There is a case that he and I talked about
where basically what happened is the contingency fee was calculated
following an injunction based on what complying with that injunction
would cost the defendant. Some percentage of that cost was then
calculated as a contingency fee. Ironically, in that case it wasn't the
defendant who paid that fee, it was the taxpayers of the State, in a
further sort of ironic twist. There is a way for contingency fees to be
calculated, even where the only authority granted is to seek an
injunction.
Finally, it is important that the Senate send a strong message about
contingency fee arrangements with outside counsel under these
circumstances for the purposes of this act because we know the Senate
will not be the final word on this--there will be a conference
committee--a strong statement by the Senate that while we believe that
State attorneys general can perform a useful function in seeking
injunctive relief, that we should not put them in a better position
than the Consumer Product Safety Commission, nor should we see the kind
of abuses that can occur with hiring outside counsel under contingency
fee arrangements.
I thank the distinguished Senator from Arkansas. I congratulate him
on his good work.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Illinois.
Mr. DURBIN. Mr. President, let me thank my colleague from Texas for
coming to the floor and offering an amendment. I don't know if I will
be able to support it, but I do commend him because the amendment
clearly relates to the bill, a very important bill, and it draws us
into something perilously close to debate which hardly ever happens on
the floor of the Senate. I hope the spirit in which he has offered this
amendment will be respected on both sides of the aisle.
I know there are many pressing issues facing us in Congress and few
opportunities to bring them up. But I hope this bill can pass this
week, that we have an honest debate on the merits of the bill, and then
bring it to passage. I support the bill. I thank Senator Pryor.
Senator Pryor of Arkansas has been a leader on this issue. He has
done an extraordinarily good job making this a bipartisan bill. All of
us read the stories last year about toy safety. Many parents came up to
me in Illinois and said: What am I supposed to buy this year? Is
everything dangerous? If it says ``made in China,'' am I supposed to
stay away from it?
I didn't have a good answer. I couldn't recommend toys. That is not
what I do for a living.
I have to tell you, a lot of the stories that were coming out in the
newspapers were troubling, not just for parents but for grandparents
such as me. Magnetic toys, I never had those when I was a kid. All we
had were Lincoln Logs and Tinker Toys and all kinds of stuff like
that--erector sets. But these were little objects that could stick
together with magnets. Kids could build them into huge forms. My
grandson loved them. He had boxes full of this stuff and he would make
these huge things with his dad, and always wanted more.
Well, I bought it--something to bring around at Christmastime--and
did not realize, until the newspaper stories came out, this toy was a
danger. Because the reason it worked is, it had these tiny, little,
rare earth magnets. It looked like a pill, a little black pill. They
were on the end of these sticks of plastic, and that is what kept all
this toy structure together.
It turned out in the earliest design of these Magnetix toys, if a kid
threw it on the floor, stepped on it, whatever--ran over it with a
bicycle--the little magnet could pop out. And that little magnet, for
my grandson, who was a little older, was not a problem. But for tiny
children, it turned out to be a big problem. If they popped it in their
mouth--which little kids, crawling infants would do--and swallowed it,
and swallowed more than one, those two magnets could come together
inside their body and cause serious obstruction in their intestines,
forcing surgery to take care of it, and in the most extreme cases
killing a baby.
That was the reality of a badly designed toy on sale in the United
States. The Chicago Tribune did a front-page story on it. That is when
I first started paying attention to this more closely, because I
thought ``I bought one of these for my grandson, and it is a danger''--
at least it is for smaller children. The Chicago Tribune told the story
in a very good series, about what happened when they discovered this
toy was dangerous.
What happened added to my sense of urgency to deal with this issue.
Because no sooner did this hazard appear than the lawyers appeared, and
the lawyers took these toys and went to

[[Page S1500]]

their legal playground and played with them for month after month after
month, while they were still being sold across America. That has to
stop. If there is a dangerous toy in America, you cannot expect every
family to do a test. You cannot expect every family to be able to
certify safety. They expect the Government to do that. That is what we
are supposed to do--the Consumer Product Safety Commission. When they
do not do their job, it puts families and children at risk. So this law
we are currently trying to amend may have been good many years ago.
Today it is not up to the challenge.
Senator Klobuchar of Minnesota has been another great ally of Senator
Pryor on this effort. She had a chart earlier, and I want to show you
kind of a version of it, if you will. This is a little bit different
chart than hers. It indicates the number of imports coming into the
United States.
I talked about toys, but we are concerned about the safety of all
products--electronic products and so many others--coming into the
United States. You can see from the chart, starting back in the 1970s
and all the way up to today, this dramatic surge in the number of
imports. Now, this may be hard for people to see, but here are the
numbers of full-time employees at the Consumer Product Safety
Commission--reaching a high number of about 1,000 employees in 1980, it
looks like, and then this steady decline of employees, until we are
down around 400 employees today. So here is a surge of imported
products, and a dramatic decline, by more than 50 percent, of
inspectors. Well, what is going to happen? Fewer products are
inspected, fewer unsafe products are detected, and there is more danger
in the marketplace.
There was kind of a popular cliche on Capitol Hill back in this era:
Get Government off my back. Well, this is an example of where a safety
agency fell victim to that mentality and dramatically reduced its
staff, at a time when it should have kept up with the imports to
protect American citizens. That is what I think troubles many of us.
I am the chairman of the Appropriations subcommittee for the Consumer
Product Safety Commission. We increased the President's request for
this agency, I believe from $62 million to $80 million in this year--
that is an $18 million increase in real terms, about 30 percent--and
said to the agency: Now staff up. Put the inspectors in place. Protect
the consumers across America.
I suppose we could have given them more, but I am a little bit
reluctant, having watched the process for a number of years, to put too
much money too fast into an agency. I am afraid many times they do not
hire the best people and they cannot adjust to change. Thirty percent,
I think, is probably tops out of what you can do in any given year
without running some real risks, and even that has to be carefully
monitored.
So we are hoping in this bill--and I commend Senator Pryor--to see a
steady increase in the number of employees and inspectors at this
agency in the hopes that when we get this done, at the end of the day
we will have enough people to do the job.
When you look at the millions of dollars worth of toys brought into
the United States, and all the attention we paid to those toys, there
is a legitimate question about: Well, how many people out of about 400
at the Consumer Product Safety Commission were actually inspecting
toys? Well, it turned out that when it came to certain types of toys,
such as these loose magnets and that sort of thing, there was basically
one man. His name was Bob. I had a picture of Bob standing at his
inspection station which I had back in the cloakroom and somebody took
it. I wish I could have brought it out here because Bob became kind of
legendary. Bob has since retired. He is retired from the Federal
Government. But we did manage to save a picture of Bob's workspace.
Shown in this picture is Bob's testing laboratory for toys imported
into the United States. That is not a real confidence builder. It looks
like my work bench in my basement in Springfield, IL. In fact, that
work bench looks a little better, when I think about it. This is a
mess. His toolbox is over here, and there is a bunch of toys stacked
up.
Bob, the Federal inspector of toys for the United States of America--
he was making do with what he had, and it was not a lot. What he did
was draw this little line on the wall about 3 feet up, and then he drew
another one at about 6 feet up, and he would take these toys out of the
boxes and drop them on the floor to see if they broke open. That was
one of Bob's impact tests in his laboratory. I do not want to make
light of Bob's contribution to safety in America, but I will bet you
families across America thought it was a little different process that
led to an inspection of a toy that might end up in the hands of their
child if they bought it in a store in America.
The good part about Senator Pryor's bill that I am happy to cosponsor
is that he goes after this whole laboratory inspection process. We
should not and cannot build enough laboratories in the United States
owned by the Federal Government to inspect every product that comes
into our country, but we can certify laboratories in other countries
that are recognized to be professional and trustworthy--that is a good
investment--and then make sure that the products go through these
laboratories, and make sure when they come to the United States we can
identify where they came from, when they were produced and, if there is
a problem, trace them back.

So Senator Pryor's bill moves in the right direction: more inspectors
here, but people also to certify laboratories in the countries of
origin. If there is a toy coming from China, as an example, it may go
to an underwriter's laboratory that is open in China that has been
certified by the United States as a reliable laboratory, and they will
have to give a seal of approval before it is shipped to the United
States. That, to me, makes a lot of sense. It is a way to use our money
wisely and to avoid this kind of sad situation here where you cannot
believe this is going to result in a reliable process.
The funding increases in this bill are important, but even more
important, from my point of view, is to make sure this Consumer Product
Safety Commission is run by people who care, who want this to work. It
is sad. There are supposed to be five members of this Commission.
Unfortunately, there are only two who are currently serving.
This Commission under current law has to negotiate press releases
with companies. If you find a Magnetix toy with a magnet that a child
can swallow and can have terrible health consequences and want to take
the product off the shelf or recall it, it turns out to be a battle
royal between lawyers even negotiating the wording of the press
release. While all this is going on, unsuspecting families are buying
these toys. Now Senator Pryor in this bill is going to expedite this
process.
Secondly--and this is one that I think is essential--we have to fine
those who violate this law in a manner where they will pay attention.
If you have a product you continue to sell that is dangerous, that is
on recall and you sell it anyway but figure: My company will make
enough money that I can pay the fine and live through it to see another
day, that is not a good outcome--certainly not for the consumers across
this country.
So what Senator Pryor in this bill does is to increase the fines to a
level where they truly are meaningful, and companies will have to think
twice before they would consider selling a product that is facing
recall.
This package also over time increases the authorization level for the
agency. It strengthens civil and criminal penalties. It requires third-
party certification and testing, as I mentioned. It makes it mandatory
for manufacturers of toys and children's products to comply with
accepted safety standards. It bans the presence of lead in all
children's products. My hat is off to Senator Klobuchar. She has been a
great leader on that issue. It allows for parents to have faster access
to injury reports and other information to help alert parents to
product safety risks. It improves the way this Commission conducts its
business.
It allows State attorneys general to enforce product safety law in
specified instances. I believe it is only injunctive relief they can
seek, and only if the Consumer Product Safety Commission and Federal
agencies do not move forward to protect the consumers. It restores the
Consumer Product Safety Commission to a five-member Commission, which
it should be.

[[Page S1501]]

I hope my colleagues will look at this bill closely and realize we
are doing something that is rare. We are taking a law that has not been
touched for 18 years and bringing it up to speed.
Eighteen years ago, as my chart showed earlier, imports were at a
very low level. Imported products have risen dramatically. We have to
rise to the challenge. It is heartening this bill Senator Pryor brings
to the floor, along with Senator Stevens, Senator Collins, Senator
Inouye, myself, Senator Klobuchar, and so many others, has a broad
coalition of groups supporting it: the Consumer Federation of America,
the American Association of Pediatricians, and Consumers Union, to name
a few. One of the CPSC Commissioners, Mr. Moore, has endorsed this
legislation, and a number of State attorneys general.
Passing a strong, consumer-oriented bill such as this is the next
step in safeguarding consumers. I do not think American families should
ever have to go through a Christmas or holiday season as they did last
year wondering if products on the shelf are safe for their kids. If
history is our guide, we may not have the chance to revisit these
policies if we do not pass this bill right now.
I want to thank a number of individuals who played a significant role
in helping me work on this issue and helping others: Rachel Weintraub,
who was at the press conference yesterday for the Consumer Federation
of America; Ami Ghadia and Ellen Bloom of the Consumers Union; Ed
Mierzwinski with U.S. PIRG; David Arkush and Mike Lemov from Public
Citizen; Cindy Pelligrini with the Association of Pediatricians; Nancy
Cowles with Kids in Danger; and Patricia Callahan and Maurice Possley
with the Chicago Tribune. The last two did an exceptional job as
reporters. This was journalism at its best. They told a story--a
gripping story--well documented, which caught the attention of this
legislator, which led me to take this issue more seriously. My hat is
off to the Chicago Tribune, Patricia Callahan, and Maurice Possley for
their work on this issue.
Finally, let me say this: Passing this law is not the end of the
story. My Appropriations subcommittee is going to call the Consumer
Product Safety Commission in. We are going to keep an eye on them. We
are going to make sure that taxpayers' dollars are well spent, that
there is no question in the minds of those who are running this
Commission about what Congress wants to achieve with this new authority
and these new resources. If there is push-back and resistance from this
agency to change, they are in for a battle. I hope we do not see that.
I think American consumers want to know the toys and products they
buy off the shelves across America are safe for their families and safe
for their kids. We focused on toys, but it is not the end of the story.
There are an awful lot of products, many products which we buy every
day, trusting this Government to put its seal of approval on and some
inspection behind it. We have to meet our obligation to people who
count on us to make sure that government does its job in an effective,
efficient, and dollar-efficient way. Unfortunately, this agency has
fallen behind. As it fell behind, so did some of the confidence of
American consumers about products on the shelves.

I also think we ought to work with foreign governments. The Chinese
came to see me repeatedly during the last holiday season and said: We
have gotten the message. We are going to straighten this out. I am
hoping they live up to that promise.
Also, in fairness to China, for example, which has been the butt and
focus of many of the critiques when it comes to imports, the fact is
that many of the toys they sold were designed by American companies,
and those companies need to be held responsible for the toy design that
the Chinese actually implemented.
The last word I will say is for special recognition to two companies
which, during the midst of this toy scandal, did the right thing as
corporate citizens of America--one was the chain Toys R Us, and the
other, a major toy maker, Mattel--when this story came out. The CEOs of
both of those companies contacted my office and said: We are going to
work with you. We are not going to run away from this issue. We know
that if American consumers don't have faith in our stores and in our
commitment to them, it will not only hurt our sales, but it will put
families in jeopardy.
Jerry Storch from Toys R Us was at the press conference yesterday. I
commented that in the old days, corporate strategy used to be duck and
cover. If a scandal emerges involving your company or your products,
you duck the press and you try to cover it up. Jerry Storch didn't do
that. He stepped right up and said: Toys R Us is going to work with you
to make sure the products are safe. He kept his word and came to the
press conference yesterday.
The same thing is true with Mattel. I think they are genuinely
committed to the safety of kids and families, and I thank them for
their leadership, as well as others, but those two really impressed me,
that they would do the right thing from a corporate viewpoint. I hope
consumers across America will hold them to their promise, and if they
keep it, we will reward them with our business. They deserve it.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arkansas is
recognized.
Mr. PRYOR. Mr. President, I ask that we return to the regular order.
The ACTING PRESIDENT pro tempore. Amendment No. 4090 is pending.
Mr. PRYOR. Mr. President, I wish to thank my two colleagues who just
spoke--really, all three.
Senator Klobuchar has shown great leadership when it comes to this
issue. This is a very personal issue with Senator Klobuchar. These
recalls and injuries and even deaths of children have affected some
families in her State, but she has taken this on as a very important
personal issue that just so happens to be good for the country.
I also wish to thank Senator Durbin for his leadership. He has been
involved in this legislation since the beginning. He has given a lot of
wise counsel over the course of this legislation. He has a very strong
passion about this issue. He also has been able to, as he mentioned,
talk with Toys R Us and have them come in as one of the largest toy
retailers, to allow them to show some leadership in the retail
industry, which I think has been very helpful and very positive in the
last few days.
Lastly, I wish to mention Senator John Cornyn. Again, we are going to
look at his amendment to see if it is something we can agree to. I have
a few traps running over here, but I told Senator Cornyn a few moments
ago that we would definitely give his amendment a very serious look,
and maybe it is something we could work on and work through and maybe
attach to the bill. But I have some work to do on my side.
I wish to say a few words about one provision of the consumer product
safety legislation we are working on right now. It has to do with the
Commissioners. This is an agency that, when it was formed in the 1970s,
had five Commissioners. No one can really tell us why, but sometime in
the 1980s or 1990s, it went down to three Commissioners. It may have
been an appropriations issue, and it was perhaps a pragmatic decision
at the time. No one is really sure about that. However, I feel
strongly--and I have talked to several colleagues, and they see the
wisdom in this--that we really need five Commissioners on the CPSC. The
reason is because the CPSC deals with over 15,000 types of products. It
has a huge amount of jurisdiction that is really too much for three
Commissioners to handle.
In fact, I have had the opportunity to talk to Commissioners from the
Federal Trade Commission and the Federal Communications Commission, as
well as former Commissioners from the CPSC. All of them agree that
given the broad jurisdiction the CPSC has, it would be very helpful to
have five Commissioners. For one thing, it gives a broader variety of
perspectives and opinions, but another thing that happens as a matter
of practice is the five Commissioners, whether by design or because it
just happens this way, tend to start to specialize in certain areas.
Again, given the 15,000 types of products the CPSC oversees, we could
understand how we might need a little bit of specialization and we
might need the Commissioners to focus on specific areas because it will
help the Commission be stronger overall. So we change the law in our
legislation. We go from

[[Page S1502]]

the three-Commissioner setup we have today and we move it to five
Commissioners. We return it back to the way the Commission was
originally designed. We feel as though this will be a very positive
development.

As part of this issue as well--in a little different section of the
bill but nonetheless related--I believe and the cosponsors believe we
need to reauthorize this Commission for 7 years. Part of that is
because we need to help retool and rebuild this Commission over a
several-year period.
One of the things we make very clear in the legislation is we don't
try to fix everything on day one. There is a lot that needs to be
fixed, a lot that needs to be addressed, but as a practical matter,
realistically, we can't fix everything in 1 day. Rome wasn't built in a
day, and you can't rebuild the CPSC in one fiscal year. What we are
trying to do is phase this in over time and make sure we do it the
right way, make sure we do it the smart way. That is why I believe that
a 7-year reauthorization makes good sense under the circumstances.
The last point I wish to make this afternoon, or at least right now,
is that we have a provision in this bill that I think will really
benefit families in a very practical way; that is, we have a provision
in this legislation to put identifying marks on products.
We have all been in the situation where big brother gets a G.I. Joe
or whatever it may be and passes it down to little brother, or your
daughter gets a set of dolls from a neighbor whose kids don't play with
those dolls anymore, or whatever the case may be, and we never even saw
the original packaging on a lot of that stuff. We don't know when it
was made. We don't know how old it is. We don't know anything about it.
All of a sudden, we read something in the paper or see something on
television about a recall. Right now, we don't have any way of knowing
whether it is this particular toy that has been recalled.
So what we are trying to do is set up a regime here where--and by the
way, we worked with the manufacturers on this to make sure this is a
practical, sensible solution, and we think it is--but to actually stamp
the products with different identifying numbers, maybe batch numbers,
lot numbers, whatever--not to get into all the technical aspects of
it--so that when there is a recall, when there is a problem, or there
is some sort of hazard that has been identified, families can look at
their product, look at their toys, and know if that is a product that
is subject to recall.
So we are trying to be very practical in how we approach this. We are
trying to beef up the number of Commissioners. We are trying to make
this a 7-year reauthorization, but we are also trying to do things that
help families make the determination to keep their families safe, and
this is something which I think has been lacking in the current system.
Hopefully we will be able to measure in the number of injuries and in
the number of deaths and even the number of recalls that happen and the
amount of litigation--we hope all of that will go down when it comes to
consumer product safety. Hopefully, we will be able to look back and
see this as a good piece of legislation.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from South Carolina is
recognized.

Amendments Nos. 4095 and 4096, En Bloc

Mr. DeMINT. Mr. President, I ask unanimous consent to set aside the
pending amendment and call up two amendments I have at the desk. They
are amendments Nos. 4095 and 4096.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. PRYOR. Mr. President, reserving the right to object, I am sorry,
what were the two amendments?
Mr. DeMINT. If I can respond to the chairman, two amendments--one is
the House bill, which is 4095, and the other relates to the
whistleblower provision, which is 4096.
Mr. PRYOR. I am sorry. Was the request just to talk about those?
Mr. DeMINT. No. They are at the desk. I wanted to call them up and
speak about them later.
Mr. PRYOR. Call them up and then go back to the pending amendment?
Mr. DeMINT. Yes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The clerk will report.
The assistant legislative clerk read as follows:

The Senator from South Carolina [Mr. DeMint] proposes
amendments numbered 4095 and 4096.

Mr. DeMINT. Mr. President, I ask unanimous consent that the reading
of the amendments be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(The amendment (No. 4095) is printed in today's Record under ``Text
of Amendments.'')
The amendment (No. 4096) is as follows:

(Purpose: To strike section 21, relating to whistleblower protections)

Beginning on page 58, strike line 11 and all that follows
through page 66, line 9.

Mr. DeMINT. Mr. President, I yield the floor.

Amendment No. 4094

Mr. PRYOR. Mr. President, I ask to return to the regular order.
The ACTING PRESIDENT pro tempore. The amendment is pending.
Mr. PRYOR. Mr. President, I think we have some colleagues who may be
on their way to the floor shortly. I would encourage our Senate
colleagues to come to the floor and offer amendments if they have
amendments or offer constructive suggestions if they have those or even
if they just want to come down and speak. We would really like to get
this legislation wrapped up this week. So far, the cooperation has been
excellent on both sides.
Again, I wish to commend Senator DeMint and Senator Cornyn for coming
down and offering and addressing amendments that are germane. One of
the concerns I had is that we might see the floodgates open up on this
legislation and come in with all kinds of nongermane amendments. So I
thank colleagues on both sides of the aisle for keeping the amendments
germane and on point.
Mr. President, I note the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. PRYOR. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

____________________