President Signs Legislation Amending CPSIA; New Rulemakings Required

Date: Aug 19, 2011

On August 12, 2011, President Obama signed into law HR 2715[1] ("Act"). We previously highlighted the changes this Act makes to the Consumer Product Safety Improvement Act of 2008 ("CPSIA"). In addition to those changes, which include prospectively applying the 100 ppm lead limit only to products manufactured after August 14, 2011, the Act directs the Consumer Product Safety Commission ("CPSC") to initiate several rulemakings, which we highlight below.

Reducing Third Party Testing Burdens. Within 60 days of enactment, CPSC must seek public comment on opportunities to reduce the cost of CPSIA's third party testing requirements. The Act specifically identifies questions CPSC must address, which include information on redundancy with existing testing requirements of other U.S. government agencies, redundancy in testing required for two or more importers of a product that is substantially similar or identical in all material respects, whether sampling procedures are appropriate for similar products of a manufacturer, and whether national or international regulations provide adequate assurances of compliance. CPSC must review the public comments within one year of enactment and provide new or revised third party testing requirements if it determines that such requirements will reduce third party testing costs. This rulemaking may ultimately provide relief from the testing burdens for products or materials that meet the Food and Drug Administration's (FDA) requirements for food contact.

Inaccessibility Proceeding for Phthalates Requirements. The Act provides an exemption for inaccessible component parts from CPSIA's phthalates requirements applicable to toys and child care articles. Within one year of enactment, CPSC must either adopt a rule that provides guidance with respect to what components will be considered inaccessible for phthalates testing purposes, or adopt the same inaccessibility guidance for phthalates that it issued for CPSIA's lead requirements.

Phthalates Notice of Requirements. Apart from HR 2715's rulemaking requirements, CPSC recently issued another important request for comments of interest to those who use phthalates: its Notice of Requirements ("NOR") for accreditation of third party conformity assessment bodies to test for phthalates. The NOR requires testing for affected products manufactured 90 days after it was issued, which was August 10, 2011. Comments are due September 9, 2011.

The NOR explains that only plastic parts or other components which could conceivably contain phthalates must be tested, although Footnote 2 of the NOR references non-plastic components only. The explicit reference to only non-plastic components in the NOR is in contrast to CPSC's August 2009 phthalate component testing guidance that identified synthetic textiles (polyester, acrylic, nylon), polyethylene, and polypropylene as among the materials that "do not normally" contain phthalates and "might not" require testing. The NOR also states that CPSC may revise its draft phthalates guidance issued in February 2009. That guidance currently excludes from the requirements child care articles that are "secondary products," which are products that may be used for feeding, sucking, sleeping, or teething of a child under three, but that are predominantly used by the parent, like a bottle warmer or breast pump.

Future rulemakings on testing at the CPSC will continue to have a significant impact on businesses.

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.