In recent weeks, the Consumer Product Safety Commission (CPSC) has issued important guidance on several issues raised by new standards contained in the Consumer Product Safety Improvement Act of 2008 (CPSIA). As CPSC continues to clarify key provisions of the statute, we wanted to alert you to agency action regarding several significant issues.1 To meet the statutory effective dates, many companies had to make compliance decisions in advance of CPSC guidance and new rules. Companies should revisit these decisions in light of recent developments to ensure their policies and procedures coincide with those of CPSC.
Topics addressed in this update include:
- New tracking label requirement for children’s products
- Determining accessibility of lead-containing component parts
- Factors for determining civil penalties
- Lead content limits in certain materials or products
- Recent statement of policy regarding phthalate restrictions
- Public hearing regarding FY2011 priorities and strategic plan
Tracking Labels for Children’s Products
After soliciting comments from the public regarding the CPSIA’s tracking label requirement for children’s products,2 CPSC has released informal guidance in the form of Frequently Asked Questions and a statement of policy regarding the interpretation and enforcement of section 103(a), as well as individual statements from the Commissioners. Importantly, the policy statement indicates that CPSC “anticipates that there will be a period of education” when the requirements take effect. Echoing sentiments contained in Commissioner Moore’s statement, the policy statement indicates the agency will consider the good faith efforts of manufacturers to educate themselves regarding compliance with this requirement and determine its applicability to their business, and likely will not seek penalties if required information is inadvertently omitted.
The Frequently Asked Questions and policy statement also contain important guidance on the agency’s position on practical issues related to the regulation’s implementation:
- When considering the reasonableness of a manufacturer’s decision regarding what information to include in its markings, CPSC will look to the individual company’s situation, although ultimately each manufacturer is “responsible for making a reasonable judgment” about its own approach to tracking labeling. CPSC will also consider the practices of the company’s peer manufacturers.
- The term “label” should not be assigned a singular definition, as CPSC does not believe the required information must appear in one discrete location, but may include various marks in different places on the product or package.
- Manufacturers that sell products in sets, such as building blocks, may find it unnecessary to mark all pieces in the set.
- Marking the products with a code and website address where the required information may be found is acceptable as long as the manufacturer and private labeler is also identified.
- Marking both the package and the product may not be practical, such as in instances where the product is too small, the toy is meant to be stored in a box or other packaging (e.g. board games), the product is sold in bulk vending machines, a physical mark would weaken or damage the product, the product surface would be impossible to mark, or the mark would ruin the aesthetics of the product.
- Location of production may be indicated by listing the city, state, and country of manufacture, and date of manufacture may be indicated with a date range.
Both the policy statement and Frequently Asked Questions contain valuable information for any manufacturer subject to these requirements and should be reviewed in detail as you contemplate how to comply with this federal mandate.
Accessibility of Lead-Containing Component Parts
The CPSIA provides for specific lead limits in children’s products. As of August 14, 2009, products designed or intended primarily for children 12 years and younger may not contain more than 300 ppm of lead. The statute exempts component parts of a product that are not accessible to a child from these limits. Section 101(b)(2) specifies that a component part is not accessible 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 of the product.
Section 101(b)(2)(B) of the CPSIA requires CPSC to issue a final rule regarding what products or classes of components will be considered “accessible” for the purpose of determining whether the lead limits contained within the statute for children’s products apply. Earlier this year, CPSC published a notice of proposed rulemaking containing a proposed framework for determining accessibility.3 The final rule, published August 7, 2009, is substantially the same as proposed and establishes the application of two existing test methods for determining accessibility.
- First, the accessibility probes used to determine whether a sharp point or edge is accessible will be used to determine whether a lead containing component part is accessible.4
- Second, the use and abuse tests methods used to determine the normal use and reasonable and foreseeable abuse of toys and other articles intended for children will be used to evaluate potential lead hazards.5
A number of key points were made in the preamble, including:
- Inaccessible component parts will not require testing or certification for compliance with the lead limit.6
- CPSC takes the position that the scope of accessibility, as contemplated by Congress, does not extend to instances beyond physical accessibility, such as exposure to lead through leaching, ingestion or mouthing of the object. The agency supported its position by noting that the statute specifically identifies physical exposure as a determining factor for accessibility and that the potential of exposure due to mouthing and other forms of contact would be considered under the existing “use and abuse” evaluation.
- As 16 C.F.R. 1500.50-1500.53 contain test methods for toys and articles intended for children in three separate age groups, slight revisions were made to the final rule to clarify that the tests would be applied according to the specific age group for which the product is intended.
The preamble also addresses the use of fabric coverings as a barrier to accessibility; the effect of aging on accessibility; and the agency’s interpretation of the phrase “lead-containing component part.” Finally, CPSC notes that it will address certification requirements and standards for ensuring children’s products are tested for compliance with applicable safety rules in a separate rulemaking.
Civil Penalty Factors
The CPSIA requires CPSC to issue a final rule providing the interpretation of the civil penalty factors found in the CPSA.7 Recently, CPSC posted a draft interim final interpretive rule to its website. In addition to providing definitions of key terms, the draft rule provides guidance regarding the agency’s proposed interpretation of the criteria set out in the CPSIA. Importantly, the rule provides examples on the factors that the agency believes falls within the catchall criteria, “Other factors as appropriate.” Factors include the violator’s safety/compliance program, history of noncompliance, economic gain from noncompliance, and failure to respond in a timely and complete fashion to CPSC’s requests for information or remedial action. The final rule will become effective upon publication.
Lead Content Limits on Certain Materials or Products
Earlier this year, CPSC issued a proposed rule that would establish certain materials as inherently lead free: precious and semiprecious gemstones, pearls, wood, natural fibers (including cotton, silk, wool and hemp), and other natural materials (including coral, amber, feathers, fur, untreated leather), as well as certain alloys and metals. Products and components made from these materials would be exempt from section 101(a) and therefore relieved of the lead content testing requirements in section 102 for the purpose of supporting the required certification.
Based on comments received, the agency has issued a final rule that also exempts the following materials, in addition to those listed in the proposed rule:
- Paper and similar materials made from wood or other cellulosic fiber and coatings on such paper which become part of the substrate.
- CMYK process printing inks (excluding spot colors, other inks that are not used in the CMYK process, inks that do not become part of the substrate, and inks used in after-treatment applications, including screen prints, transfers, decals, or other prints).
- Textiles (excluding after-treatment applications, including screen prints, transfers, decals, or other prints) consisting of dyed or undyed natural and manufactured fibers.
- Other plant-derived and animal-derived materials (including animal glue, bee’s wax, and seeds).
Statement of Policy Regarding Phthalate Restrictions
After soliciting comments earlier this year, CPSC has issued a statement of policy regarding the new phthalate prohibitions applicable to children’s toys and child care articles that became effective February 9, 2009.8 In the statement, CPSC describes its current position on component part testing with respect to section 108 of the CPSIA, but notes that a company may adopt an alternative approach if it satisfies the requirements of the CPSIA. According to the statement, CPSC believes that phthalate testing should be limited to “plasticized component parts,” i.e., those plastic parts or other product parts which could conceivably contain phthalates. CPSC believes this interpretation is more protective to human health than testing phthalate content as a percentage of the entire toy or child care article and effectuates the intent of Congress.9
The statement of policy also provides examples of products that may contain phthalates (polyvinyl chloride, certain soft or flexible plastics and rubbers, foam rubber or plastic) and therefore require testing, as well as products that do not normally contain phthalates (unfinished metal, natural wood, textiles made from natural fibers, or common synthetic fibers), which might not require testing or certification. However, the responsibility remains on the manufacturer to determine whether testing or certification is required for its product or product components.
Public Hearing Regarding FY 2011 Priorities and Strategic Plan
On August 25, 2009 CPSC held a public hearing regarding the development of its agenda, priorities, and strategic plan for the next fiscal year. While many of the speakers discussed issues unrelated to the CPSIA, a number advocated that CPSC set aside additional resources to the implementation of the CPSIA. Key suggestions included dedicating additional resources toward increasing agency transparency and industry education; further exploration and guidance regarding the use of X-Ray florescence technology as a lead content screening tool; and providing scientific support for the broad application of consumer safety requirements.