Consumer and safety groups are rightly applauding an agreement by House and Senate lawmakers to move forward a bill which bans lead and most phthalates -- plastic chemicals that can cause developmental disorders -- in most children's products.  The bill, already approved by the U.S. House, will also increase funding for the Consumer Product Safety Commission, strengthen testing standards, and enhance public access to product safety information.

There is little question that the proliferation of state laws that passed this year banning toxic toys played a key role in industry leaders deciding to make concessions over the bill.   Unfortunately, one key concession that industry demanded, and got, in the negotiations is preemption of new state laws protecting consumer safety.  As industry spokespeople emphasized in their support for the bill:

A single set of national standards was "the framework we were looking for," said Carter Keithley, president of the Toy Industry Association ... E.R. Anderson, a Wal-Mart spokeswoman in Washington, called the legislation "a good bill, in our estimation." She added, "We are very pleased that this bill acknowledges that 50 separate state standards is unworkable and inefficient."

While state Attorneys General will have a role in enforcing the new federal law in the courts, states will largely be barred from enacting new rules to protect the public that are stricter than the federal standards.   While the new proposed bill is a considerable improvement over existing consumer protections, the danger is that when new public health dangers are found in the future, if the federal agencies refuse to act, there will be little ability for the states to step in and be a check on federal inaction. 

This is part of a pattern of Congress voting over 57 times in the previous five years to preempt state laws.  As we saw with the subprime mortgage debacle, federal laws designed to protect consumers have often been used instead to stop stronger state laws, so progressives should be wary of federal compromises such as this one that cripple state authority.

One thing that distinguishes modern liberals from the New Deal left is that progressives back then assiduously expanded state authority to protect workers and consumers.  The minimum wage enacted in the 1930s went out of its way to specify that the federal minimum wage was only a minimum and that states and local governments could enact higher wage rates.  This has meant that when the federal government lags in protecting wage levels, states still have the ability to step into to raise the bar.

Unfortunately, modern progressives have increasingly signed onto environmental, consumer and economic regulations that preempt state laws, meaning that when the federal government falls into the hands of conservatives, not only does federal vigilance fail but all proactive action by government can be blocked due to federal preemption.  If Obama wins the Presidency, the question is whether progressives will recognize that he may not be in office forever, so policy should be designed to empower progressive legislators at the state and local level in order to safeguard progressive policy in the future, even when the federal government may be in hostile hands.