Info Alert
National Conference of State Legislatures
Office of State-Federal Relations
August 18, 2008
Anti-preemption Language Included in Consumer Product Safety Improvement Act of 2008
H.R. 4040, “The Consumer Product Safety Improvement Act of 2008” was signed into law by the President on August 14, 2008, becoming Public Law No. 110-314. To view the final language, please visit:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h4040enr.txt.pdf
The Consumer Product Safety Act amends currently existing consumer protection laws, mostly under Titles 15 and 16 of the U.S. Code. Current laws already preempt certain elements of state law. H.R. 4040 does not reverse the previous preemptions, nor does it add additional preemptions. No existing state law shall be preempted by H.R. 4040 and the current structure remains in tact.
The intent of the new language is to protect children from hazardous substances in Chinese children’s toys. The bulk of the Act applies to those specific provisions.
H.R. 4040 includes a preemption provision which serves as a limited protection of existing statutes already deemed compliant. This Protection of State Authority (POSA) language, included under Subtitle D Sec. 231, reads:
“The provisions…establishing the extent to which those Acts preempt, limit, or otherwise affect any other Federal, State, or local law, any rule, procedure, or regulation, or any cause of action under State or local law may not be expanded or contracted in scope, or limited, modified or extended in application, by any rule or regulation thereunder, or by reference in any preamble, statement of policy, executive branch statements, or other matter…In accordance with the provisions of those Acts, the Commission may not construe any such Act as preempting any cause of action under State or local common law or State statutory law regarding damage claims…Nothing in this Act…shall be construed to preempt or otherwise affect any warning requirement relating to consumer products or substances that is established pursuant to State law that was in effect on August 31, 2003.”
To view the POSA language, please visit:
http://thomas.loc.gov/home/gpoxmlc110/h4040_enr.xml#toc-HC8688558A6D6498CA91C08CEFD07FC5D:
For more information on preemption in the Consumer Product Safety Act, please contact Susan Parnas Frederick (Susan.Frederick@ncsl.org) or Emily Taylor (Emily.Taylor@ncsl.org) in the NCSL DC Office at (202) 624 – 5400.
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