September 28, 1972
Page 32727
CONSUMER PROTECTION ORGANIZATION ACT OF 1972
The Senate continued with the consideration of the bill (S. 3970) to establish a Council of Consumer Advisers in the Executive Office of the President, to establish an independent Consumer Protection Agency, and to authorize a program of grants, in order to protect and serve the interests of consumers, and for other purposes.
Mr. MUSKIE. Mr. President, emotions have a way of blurring facts. That, Mr. President, is what seems to be happening to the legislation before us to establish a Consumer Protection Agency to represent consumer views before Government agencies and to conduct research into consumer affairs and complaints.
My mail reflects the strong fears this bill has aroused in people who do not appear to have been fully informed about its provisions. I have even had one letter from a constituent who thinks the legislation represents "a dangerous threat to the continued existence of our Nation."
Now that is plain rhetorical overkill. To say that the Government cannot act to protect shoppers from danger and fraud – and that, centrally, is what the new agency will seek to do – without undermining the foundations of free enterprise is like predicting that a building will collapse because a cracked windowpane is removed. I do not believe that American business practices are so devious or corrupt that they cannot stand the light of day.
I do believe that Government efforts to protect the public from unsafe, unhealthy, and unfairly priced goods and services need to be strengthened. Exposing the few who seek to take advantage of gullible or ignorant customers can only restore faith in the many whose conduct of business is beyond reproach.
From the amount of panic-stricken correspondence I have received from reputable companies, one is tempted to conclude that their behavior may be less than guiltless. In fact, however, I believe such opposition to the bill comes from a fundamental misunderstanding of the powers of the proposed agency.
Let us look at those powers and the very significant limits placed on them by the Committee on Government Operations during some 30 exhaustive hours of executive session consideration.
First of all, the agency has no independent subpoena powers. If it decides to intervene as a party in another agency's proceedings – and it cannot do so without a specific determination "that such intervention is necessary to represent adequately the interests of consumers" – then it can "request the Federal agency to issue, and the Federal agency shall issue, such orders as are appropriate under the agency's rules of practice and procedure . . . for the summoning of witnesses, copying of documents, papers, and records, production of books and papers and submission of information in writing, unless the agency determines that the request is not relevant to the matter at issue, is unnecessarily burdensome, or would unduly interfere with the conduct of the agency or proceedings."
Now that language is perfectly clear. The Consumer Protection Agency cannot intervene vindictively or frivolously. When it does intervene, and only then, it can get as much information about a matter under consideration as any other party to the proceeding. And it can only have access to that information if the host agency feels its requests are not obstructive.
What about its powers to obtain information about activities that are not the subject of proceedings before another agency? First of all, let us set the record straight. The Consumer Protection Agency will not have subpoena powers in this area.
What the bill in section 207, subsection (b) (1) gives the Agency is the right "to the extent required by the health or safety of consumers or to discover consumer frauds" to obtain information from people "engaged in a trade, business, or industry which substantially affects interstate commerce and whose activities may substantially affect the interests of consumers."
The Agency must formulate specific questions. It cannot go on fishing expeditions. And it cannot harass the neighborhood pharmacist or auto mechanic. Nor, in addressing itself to major business concerns, does it have the sweeping powers ascribed to it by those who have not, apparently, carefully read the legislation.
Section 207, subsection (b) (1) continues:
Nothing in this paragraph shall be construed to authorize the inspection or copying of documents, papers, books or records or to compel the attendance of any person. Nor shall anything in this subsection require the disclosure of information which would violate any relationship privileged according to law.
If the Agency's search for information is resisted, the Agency must respond by "carrying the burden of proving in court that such order is for information that substantially affects the health or safety of consumers or is necessary in the discovery of consumer fraud, is not unnecessarily or excessively burdensome and is relevant to the purposes for which the information is sought."
The Agency cannot put business in double jeopardy by seeking such information "in connection with intervention in any pending agency proceeding" and cannot require the data if it is already available from another agency or is a matter of public record.
And, last, the release of information has been carefully circumscribed to prevent damage to business through unwarranted disclosure of trade secrets or other confidential matters. Section 208(d) says also:
Where the release of information is likely to cause substantial injury to the reputation or good will of a person or company, or its products or services, the Administrator shall notify such person or company of the information to be released and afford an opportunity for comment or injunctive relief, unless immediate release is necessary to protect the health or safety or the public.
Mr. President, the Committee on Government Operations went through this bill with a fine tooth comb and untangled a number of its original snarls. We have produced a sound and responsible bill. It may, at last, put the men and women who buy food, clothing, motor vehicles, drugs, appliances, and housing on a better footing with the men and women who make and sell such goods and services and with the men and women who already attempt to regulate some of those transactions.
We have not created an arbitrary bureaucratic monster. We hope we are giving a voice to that famous silent majority.
For the first 3 years of the Agency's life we have authorized an average operating budget of only $20 million a year. That is far less than America spends each year to promote new cars or new deodorants or new breakfast foods.
We must evaluate priorities rationally. We must not give in to ignorance and fear. One of our priorities is to redress the balance between the shopper and the giant producer and between the citizen and his remote government. The bill takes an important initiative toward that goal. I commend those who have worked so hard to bring it before the Senate, and I urge its speedy enactment.