In the face of inaction at the federal level on TSCA reform, the state of Washington, like California and many others, enacted the Children’s Safe Products Act in 2008. While the part of that statute that prohibited the sale of children’s products containing lead, cadmium or phthalates was later preempted by the federal Consumer Product Safety Improvement Act, Washington’s Department of Ecology has been working steadily on a set of regulations to implement the remaining statutory provisions, which appear poised to take effect in April 2011.

If you make children’s products for sale in Washington, or are a part of the supply chain for the sale and distribution of such products, you will want to be sure you know if they contain one of the listed “chemicals of high concern to children” (CHCC). You can find this list here.

Washington’s Notice Requirement

If a product contains a CHCC on this initial list, then the manufacturer, the importer, the distributor and entity marketing the product under its name or trademark must each file a notice annually with the state of Washington.

The notice must include the name of the CHCC, the total amount of the CHCC by weight in the product or its range of composition in the product (e.g., .02 -.1 percent), as well as identifying information about the manufacturer, the product component and the function of the CHCC in the product component, among other requirements. There is no need to report actual product formulations or identify the specific facility responsible for the introduction of the CHCC in the children’s product. The draft regulations provide for some additional protections for confidential business information.

Failure to provide the annual notice can result in civil penalties from $5,000 to $10,000 per violation. Washington’s Department of Ecology has stated that it will look at the vigorousness of the manufacturer’s supply chain quality control program—and the use and enforcement of contract specifications—in determining penalty amounts in civil enforcement actions.

When the Washington Notice Must Be Filed

Depending on the size of the entity (based on gross annual sales) and the product type, the first notices will be due 12 months from the time of adoption of the regulations. Interestingly, trade associations are permitted to provide notice for a consortium of manufacturers by product category.

Longer time frames are provided for the first notice based on the size of the manufacturer or entity reporting and product type.

Click here to view table

Largest are those entities with annual aggregate gross sales of $1 billion. Large are those with sales between $250 million and $1 billion. Medium are those with sales between $100 million and $250 million. Small are those with sales between $5 million and $100 million. Smaller are those with sales between $100,000 and $5 million. Tiny are those with sales less than $100,000.

Tier 1 products are products intended for children three years or under, and products for children 4-11 years of age intended to be put in a child’s mouth or applied to the body.

Tier 2 products are those intended to be in prolonged (greater than one hour) contact with a child’s skin (e.g, clothing, jewelry, bedding, car seats). Tier 3 products are those intended for short (less than one hour) contact with a child’s skin (e.g., toys). Tier 4 products are those not intended for direct contact with skin or mouth and may require case-by-case determinations.

Other States Likely to Follow

As federal regulatory efforts appear stalled, and California’s leading Green Chemistry Initiative at least temporarily shelved while the state’s new administration focuses nearly exclusively on budgetary issues, Alston & Bird believes that this activity in Washington will be replicated in other states, as each jurisdiction experiments with its own form of product safety regulations.

Product manufacturers would be well advised to stay current on such multi-state developments