Product Safety Alert: CPSIA One Year Later: New Deadlines, New Proposals for Manufacturers, Retailers

Date: Aug 14, 2009

Numerous provisions of the Consumer Product Safety Improvement Act of 2008 (CPSIA) go into effect on August 14, 2009, the one year anniversary of its passage. Lead paint and substrate limits will be lowered, tracking labels will be required, and infant and toddler products will have to be accompanied with registration forms. While Consumer Product Safety Commission (CPSC) has been issuing guidance at a furious pace, anxiety and uncertainty continue within the business community, and many small businesses are suffering losses in business and jobs. The following is a list of provisions that come into play on August 14, and a brief description of their implications, as well as highlights of some additional upcoming rules and guidelines likely to be of interest.

  • New Civil Penalties in Effect: New and significantly higher civil penalties are in effect on August 14. Penalties for violations increase from a maximum of $8,000 per violation to $100,000, and the cap on penalties increases from $1.825 million to $15 million. The CPSC is finalizing an interim final rule on civil penalty factors.

  • Ban on Products Containing Lead in Substrate in Excess of 300 ppm: CPSIA established the first-ever lead substrate limit on all components of children's products at a 600 parts per million (ppm) effective February 10, 2009. By operation of law, this level goes down to 300 ppm effective August 14. Numerous industries have voiced concern over the new limit. The technology does not exist to produce many products without using lead in excess of 300 ppm, as evidenced by the requests for exemption filed by several industry groups.

    • Risk-Based Exclusions Denied: No request for exemption has been approved under Section 101(b)(1) of the Act. The staff and Commissioners view the CPSIA to prohibit the exercise of sound risk-based judgments, resulting in bans of safe products and materials absent enforcement stays. Stays have been granted in two instances.

      • ATVs and Bikes: The CPSC did not grant exemptions for lead in metal components of all-terrain vehicles or bikes earlier this year because the legislation is written so narrowly that it limits the Commission's ability to grant exclusions if there is "any" lead that might be accessible. However, the Commission granted a stay of enforcement of the lead limits.
      • Ball Point Pens: In contrast, the Commission deadlocked, 1-1, on whether a stay should be granted for ball point pens. Children's ball point pens are banned hazardous products despite the exceedingly low risk of any meaningful exposure to lead. However, the CPSC General Counsel said most pens are not children's products, Products not being marketed to or being advertised as being intended for use by children 12 and younger would not be subject to the CPSIA lead limits. Further, the opinion notes that "[e]ven a pen with a cartoon character may have mass appeal and not be intended primarily for children if its price point and marketing suggest that it is intended for both adults and children."
      • Crystal: On July 17, all Commissioners agreed that they lacked authority to exclude crystal from total lead limits. In her first-ever vote, newly-confirmed Chairman Inez Tenenbaum joined Commissioner Moore in suggesting that the Commission would exercise "enforcement discretion" and focus on products for children 6 and under containing crystal. Commissioner Nord would have granted a stay. A coalition of organizations interested in preserving the right to use crystals have asked for a meeting to discuss concerns that the enforcement "focus" offers no relief. Products that do not meet limits on total lead are banned, and CPSC and Customs and Border Patrol are stopping shipments of apparel, jewelry and other products featuring crystal rhinestones. Indeed, CPSC's guidance to resellers suggests testing or not selling children's jewelry or apparel with rhinestones.

    • "Low Lead" Exclusions from Testing and Certification: CPSC issued a final rule identifying certain products or materials (like precious metals, wood, fabrics, etc.) that will meet lead substrate limits even at the 100 ppm level and thus do not have to be tested. The final rule expands the list of excluded materials to include all plant and animal-based materials (so long as they are unadulterated by the addition of chemicals or treatments that might include lead), all fabrics and printed paper. In response to comments requesting exclusions for items such as dental floss, soaps and lotions, the CPSC pointed out that it only has jurisdiction over products that are "consumer products;" cosmetics, drugs and devices are subject to jurisdiction of the Food and Drug Administration. CPSC also added titanium and all but one grade of stainless steel to the list of excluded metals, but alloys such as aluminum, copper, pewter and others are subject to lead testing.

  • Lead Paint Ban: Consumer paint, paint on children's products, and painted furniture containing more than 0.009 percent lead will be prohibited after August 14. The lead paint limit applies to paint and surface coatings; inks or other materials that actually become part of a substrate are not subject to this limit. This a reduction from the current limit of 0.06 percent. For testing purposes, the law allows for the use of x-ray fluorescence technology for small items where the total weight of such paint or surface coating is no greater than 10 milligrams or where paint or surface coating covers no more than 1 square centimeter of the surface area. Such small items must not contain more than 2 micrograms of lead in a total weight of 10 milligrams or less of paint. The CPSC is also analyzing the reliability of XRF technology more generally. Note that state laws, such as California's jewelry law, impose a 600 ppm limit on paint and surface coatings on non-children's jewelry.

  • Tracking Labels: The issue that has sparked perhaps the most debate apart from lead substrate limits has been new children's product tracking label obligations. After August 14, manufacturers must attach tracking labels to both the product and its packaging, "to the extent practicable," that allow the manufacturer – as well as the ultimate purchaser – to ascertain the location and date of production of the product and any cohort information, which includes the batch, run number and any other identifying characteristics. The Commission's recently released guidance addresses the role of factors such as size and aesthetics on the "practicability" of tracking labels. For example, it may not be practicable to include a label on a product that is small, like individual pick-up sticks, parts of toys, or children's jewelry. Adding a label may negatively affect the aesthetic appeal of a product, for example, jewelry.

  • Registration Forms: All durable infant and toddler products must come with a postage-prepaid consumer registration card after August 14. Companies will then need to maintain a record of the names, addresses, e-mail addresses, and other information of consumers that register products. The purpose of these forms is to facilitate any possible recalls involving the product. These forms must be attached to the surface of the product, to ensure a consumer finds it easily. They inform consumers that the information provided will only be used in the event of a recall or for a safety alert. There should also be an option on the form for registering the product online. The manufacturer must also provide the company's name, the model name and number for the product, and the date of manufacture.

  • Inaccessible Component Parts: The CPSC has promulgated a final interpretive rule on what components, or classes of components, will be considered to be inaccessible for the purposes of testing for lead content. The CPSC will rely on the accessibility probe to determine if an item is capable of being touched by a child. The Commission did agree that fabric can serve as a barrier to lead-containing components if it passes appropriate use and abuse tests unless the product is smaller than 5 centimeters in any dimension.

  • Phthalates Component Testing: The CPSC has released a statement of policy regarding testing for phthalates in toys, toys that can be mouthed, and child care articles on a component basis. This new statement differs from earlier guidance, which said that testing should be based on the weight of the entire product. The statement also identifies categories of materials that are not likely to contain phthalates. The Commission is inviting comments on this statement.

The CPSC has many more action items to complete under the CPSIA. For example, it must report on the effectiveness, precision and reliability of x-ray fluorescence technology and other alternative methods for measuring lead in paint or other surface coatings when used on a children's product or furniture article. It has proposed . It is inviting comments on the effectiveness of the toy safety standard; comments are due August 20, 2009. The Commission has also proposed a rule establishing requirements for periodic audits of third party accredited laboratories; comments are due October 13.

With the recent confirmation of two additional Commissioners, CPSC will now be operating as a 5-member agency. Businesses continue to request that Congress hold hearings on the legislation because of the inflexible language certain provisions that are widely viewed to harm businesses without advancing safety.

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