On August 14, 2009, several new consumer product safety requirements entered into effect pursuant to the Consumer Product Safety Improvement Act of 2008 (“CPSIA”). These requirements include:
- Lead content: On or after August 14, it is unlawful to manufacture, import, sell, or offer for sale a children’s product that has more than 300 ppm of lead in any part (except electronics) that is “accessible” to children.
- Lead in paint and similar surface-coating materials: The limit for lead in paint and similar surface-coating materials for consumer use decreased from 600 ppm to 90 ppm. The lead paint limits apply to toys and other articles intended for children, as well as certain furniture products. Products subject to these limits cannot be sold, offered for sale, imported or manufactured on or after August 14 unless they meet the new lower lead limits.
- Civil penalties: Civil penalties increased substantially to a maximum of US$100,000 per violation and up to a maximum of US$15 million for a related series of violations. Previously, civil penalties were a maximum of US$8,000 per violation and up to a maximum of US$1.825 million for a related series of violations.
- Tracking labels: Pursuant to Section 103(a) of the CPSIA, manufacturers must place permanent distinguishing marks (tracking labels) on any consumer product primarily intended for children 12 years old and younger manufactured on or after August 14. The permanent marks must enable consumers to ascertain basic information, including the manufacturer or private labeler, location, the date of manufacture, and more detailed information on the manufacturing process such as a batch or run number. The permanent distinguishing marks must appear on the product itself and its packaging to the extent practicable.
On July 20, 2009, the US Consumer Product Safety Commission (“CPSC”) issued guidance on the tracking label requirements for children’s products. Specifically, the CPSC’s guidance, entitled “Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act,” includes discussion on compliance and enforcement, effective date, responsibility for compliance, applicability, format and content of tracking labels, description of the required “permanent mark,” acceptability of marking the packaging rather than the product, placement and location of marks, entity to be cited in marks, date of production and applicability to small-volume manufacturers and crafters.
- Catalog advertising: Advertising for certain toys and games intended for use by children from three to six years old must have warnings regarding potential choking hazards to children younger than three years of age. The requirement to include warnings in Internet advertisements went into effect on December 12, 2008. There was a grace period for the requirement for catalogues and other printed materials, which expired on August 9, 2009. All catalogues and other printed materials distributed on or after August 9, regardless of when they were printed, must include the appropriate warnings.
- Phthalates: On August 17, 2009, the CPSC published notice in the Federal Register of its policy entitled, “Statement of Policy: Testing of Component Parts With Respect to Section 108 of the Consumer Product Safety Improvement Act.” Section 108 of the CPSIA prohibits the sale of certain products containing specified phthalates. The CPSC’s policy statement establishes its position with respect to testing product components to determine whether they contain phthalates in excess of the statutory limits, and the CPSC has posted a new test method, Test Method: CPSC-CH-C1001-09.2, “Standard Operating Procedure for Determination of Phthalates,” dated July 27, 2009 on its Website at http://www.cpsc.gov/about/cpsia/CPSC-CH-C1001-09.2.pdf. Comments on the policy were required to be received by the CPSC on or before September 16, 2009.