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Product Safety Alert: CPSC Solicits Comments on Choking Hazard Warning Obligations, Lead Exceptions

The recently enacted Consumer Product Safety Improvement Act of 2008 (CPSIA) includes many new provisions which the Consumer Product Safety Commission must address through issuing rules. The CPSC is soliciting comments on two provisions of interest to those who make and sell children's products. The first is the CPSC's proposal to implement Section 105 requirements that mandate inclusion of applicable choking hazard warnings in any Internet or print advertisement providing a direct way to order a toy or game requiring such a hazard warning. The second is input on information on exceptions to the new limits on lead outlined in Section 101 of the CPSIA.

Choking Hazard Warnings in Advertising

Section 105 of the CPSIA requires that Internet and catalogue advertisements that provide a direct means of sale must include the applicable choking hazard warning on or adjacent to an advertisement for a toy or game requiring such a warning. The new requirement goes into effect on December 12, 2008 for Internet advertising, and on February 10, 2009 for print catalogues and other printed materials that provide a direct means of sale. It now has also issued a more detailed proposal. For print ads, the CPSC proposes to allow a "shorthand" version of the applicable choking hazard warning on each ad, so long as the full warning appears at the top, bottom, or across the two-page spread. Minimum type size standards are outlined. The CPSC also proposes to allow a 180-day grace period for previously printed catalogues (catalogues printed prior to February 10, 2009) to be distributed. For Internet ads, where requirements go into effect December 12, the full choking hazard warning must appear. The type size specifications are the same as for print catalogues, but must appear at the beginning of the product-specific text. The CPSC does not believe that abbreviated warnings are necessary or desirable for Internet ads. The CPSIA allows the CPSC to exempt B2B websites and catalogues from this requirement, but the CPSC has indicated that it lacks adequate information on which to base a proposal one way or the other. The CPSC has requested comments on this issue by October 15.

Exceptions to Lead Limits

The CPSIA sets forth three options for exclusions from the lead limits and is soliciting comments on exceptions for inaccessible component parts and for electronic products. One option, which requires a notice and hearing process, is not at issue in the present proceeding.

The CPSIA specifies that a part is inaccessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse. The legislation also specifies that reasonably foreseeable use and abuse conditions must include swallowing, mouthing, breaking, or aging of the product. In addition, the legislation establishes that paint, coatings and electroplating may not be considered a barrier that renders lead in substrate materials inaccessible to a child. The CPSC asks for input on whether components contain lead in any amounts, whether such components are "inaccessible" as defined by the CPSIA, and whether test methods or processes exist under which accessibility can be assessed. Toys and other articles intended for use by children are subject to standard use and abuse testing procedures, with test conditions set out for products for children under 18 months, products for children 18 – 36 months, and products for children 36 – 96 months. Since the definition of a children's product now includes products for children 12 and under, there are questions about whether changes in use and abuse tests will be needed as a result. In addition, there are existing CPSC regulations that cover electrically operated toys that may be relevant.

The CPSIA also allows the CPSC to adopt a different schedule to phase out lead in children's products if the Commission determines it is technologically infeasible to comply with the limits, based on criteria established in the legislation. The CPSC solicits input on whether lead is used in components of children's electronic products, whether it is technologically feasible to comply with the lead substrate limits established in the CPSIA (600 ppm by February 10, 2009; 300 ppm by August 14, 2009, and 100 ppm by August 14, 2011), whether lead-containing components in children's electronic products are inaccessible, and current compliance with other regulations, such as the EU RoHS Directive (Directive 2002/95/EC). Comments should be submitted by October 31, 2008.

More Proceedings to Come

The CPSC continues to develop proposed guidance and rules on aspects of the CPSIA, and those who make and sell consumer products may want to take advantage of opportunities to submit questions and comments on various proposals and interpretations.