Congress Passes Legislation to Amend CPSIA

Date: Aug 05, 2011

On Monday August 1, 2011, the House and Senate passed HR 2715,[1] an Act introduced by Reps. Mary Bono Mack (R-CA.) and G.K. Butterfield (D-NC). In a rare show of bipartisan support, Congress agreed to amend the Consumer Product Safety Improvement Act of 2008 ("CPSIA") in some key areas:

  • Lead Limits. The 100 ppm limit on total lead which becomes effective August 14, 2011 will apply prospectively to products manufactured after that date. This critical amendment brings relief to retailers and vendors facing the prospect of having to withdraw millions of dollars worth of inventory of safe products that meet the current 300 ppm limit from retail shelves. In addition, ATVs, bikes and books receive relief from these limits. The legislation also gives the Consumer Product Safety Commission ("CPSC" or "Commission") the authority to grant an exemption to the lead limit where lead serves a technical function in the product or component and granting an exemption will not result in a measurable increase in a child's blood lead level. Exemptions will not be granted for products or components that are swallowable or mouthable. While the amendments solve the immediate problem of the retroactive effect of the 100 ppm lead limits, they do not resolve the vexing problem of inter-laboratory variability that has created challenging questions about how to handle instances where some tests show that lead is below 100 ppm and others that levels are above 100 ppm.
  • Phthalates. Phthalates limits in toys and child care articles would not apply to inaccessible component parts. These are parts not physically exposed by reason of a sealed covering or casing and which do not become physically exposed through reasonably foreseeable use and abuse of the product. Previously, although lead limits do not apply to inaccessible components in children's products, there was no similar exclusion for phthalates.
  • Public Database. CPSC must stay the publication of a report of harm for no more than 5 days if it receives information that the report is materially inaccurate. The CPSC would also be required to make an effort to obtain the serial number or model of a product involved in the report of harm if that information was not provided.
  • Third Party Testing Requirements. Within 60 days of enactment, the CPSC must seek public comment on ways to reduce the burden and cost of third-party testing. The legislation specifically requires the Commission to request information on redundancy with existing testing requirements. Of particular interest, the Commission must consider the extent to which compliance with national or international regulations provide adequate assurances of compliance. This may ultimately provide relief from the testing burden for products or materials that meet Food and Drug Administration (FDA) requirements for food contact. The bill also authorizes exemptions from testing for small-batch manufacturers, except for compliance with requirements for children's metal jewelry, lead paint, small parts, full and non-full sized cribs, pacifiers, baby bouncers, walkers and jumpers, and durable infant or toddler products.
  • Tracking Labels. The CPSC would, by regulation, be able to grant an exemption to the tracking label requirements applicable to children's products if it determines for a specific product or class of products that a label would not be economically practicable, but may establish alternative requirements for products that are deemed exempt.
  • Used Products. Used products, except for metal jewelry or items known to violate the lead limits, would be excluded from CPSIA's lead limits.

Regulatory proceedings in response to the required action on certification and testing should provide additional opportunities for affected companies and industry groups to offer common-sense suggestions on how to assure safety while minimizing test burdens.

Keller and Heckman's Consumer Product Safety Team advises clients regarding compliance with laws and regulations enforced by the Consumer Product Safety Commission as well as related laws applicable to consumer products, including green chemistry and environmental requirements. For more information contact Sheila A. Millar, millar@khlaw.com or JC Walker, walker@khlaw.com.

[1] An Act To provide the Consumer Product Safety Commission with greater authority and discretion in enforcing the consumer product safety laws, and for other purposes, HR 2715, available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=112_cong_bills&docid=f:h2715eh.pdf.