CPSC Finalizes Product Safety Information Database Rule

The Consumer Product Safety Commission (CPSC) has finalized the rule that creates a consumer product safety information database as required under the Consumer Product Safety Improvement Act of 2008. The rule will be effective 30 days after publication in the Federal Register, and the database is apparently expected to be accessible to the public at SaferProducts.gov in March 2011. The CPSC commissioners divided 3-2 along party lines in approving the rule.

The database will consist of reports of harm allegedly caused by consumer products under CPSC’s jurisdiction; the reports may be submitted by consumers, government agencies, health care professionals, child care providers, and public safety entities. The rule requires specific information that must be submitted in the reports, including a product description, the manufacturer or labeler’s identity, an incident narrative, and when the incident happened. Verification procedures are also specified. Certain information will be redacted or otherwise treated as confidential, and manufacturers will have their own portal for submitting comments on the reports.

CPSC will provide certain information from the incident reports to manufacturers within five days of receipt “to the extent practicable,” and manufacturers may comment on the information contained in the reports. Anyone involved in the process of submitting or commenting on incident reports may request that the report and/or manufacturer comment be excluded from the database or corrected “because it contains materially inaccurate information.”

Those requesting exclusion or correction bear the burden of proving with relevant evidence that “the designated information is materially inaccurate.” If such a request is made before the incident report is published, “the Commission cannot withhold the report of harm from publication in the Database until it makes a determination. Absent a determination, the Commission will publish reports of harm on the tenth business day after transmitting a report of harm to the manufacturer or private labeler.”

Where CPSC finds that information in a report or comment is materially inaccurate before publication on the database, the agency must decline to add the information to the database, correct the information and then publish, or add information correcting the inaccurate information and then publish. Material already published on the database can be removed or corrected if determined to be materially inaccurate after publication. The database will include a prominent notice that CPSC “does not guarantee the accuracy, completeness, or adequacy” of information on the database submitted by those outside the agency.

The Republican commissioners, who do not support the rule, are reportedly concerned that too many persons or entities may file reports, making it too easy for plaintiffs’ lawyers and competitors to post bogus information. They also apparently contend that adverse information will be posted too quickly and will not give manufacturers sufficient protection from inaccurate postings. According to a news source, before the commissioners approved the final rule, the Republicans blocked a final vote and posted an alternative proposal on the agency’s Website that would have, among other matters, restricted those who could file a report. See The New York Times, November 23, 2010.

EPA Seeks Public Input on Phthalates Research

The Environmental Protection Agency (EPA) held a December 8-9, 2010, workshop under the auspices of an independent panel of experts that reviewed risks associated with exposure to cumulative mixtures of six selected phthalates.

The National Academy of Sciences has recommended that EPA “group chemicals that cause common adverse outcomes and not focus exclusively on structural similarity or on similar mechanisms of action” and that “phthalates and other agents that cause androgen insufficiency or block androgen-receptor signaling, and are thus capable of inducing effects that characterize components of the phthalate syndrome, should be considered in a cumulative risk assessment.”

In response, EPA is researching (i) “whether prenatal exposures to phthalates are associated with adverse effects in male and female offspring”; (ii) “how phthalates interact in mixtures with other phthalates, toxic substances, and pesticides to induce adverse effects, in particular disruption of reproductive development in males and females”; and (iii) “approaches to integrate new data on multiple phthalates into a cumulative mixtures assessment.” EPA will accept comments until January 4, 2011. See Federal Register, November 15, 2010.

CPSC Provides Criteria for Accepting Accreditation of Third Parties Assessing Children’s Sleepwear

The Consumer Product Safety Commission (CPSC) has issued a notice that “provides the criteria and process” for its acceptance of accreditation of third-party conformity assessment bodies that test the flammability of children’s sleepwear. These third-party conformity assessment bodies certify that children’s sleepwear conforms to federal law. Sleepwear sizes 0 through 6X and 7 through 14 manufactured after February 17, 2011, cannot be “imported for consumption or warehousing or distributed in commerce” unless the manufacturers and importers (i) have “samples of any such product, or samples that are identical in all material respects to such product, tested by a third party conformity assessment body accredited to do so” and (ii) issue a certificate that the sleepwear complies with the applicable compliance standards based on testing. See Federal Register, November 19, 2010.

White House Seeks Comments on Nanotech-Related Research

The White House Office of Science and Technology Policy has published a notice requesting public comment on the National Nanotechnology Initiative’s draft “Strategy for Nanotechnology-Related Environmental, Health, and Safety Research.” Comments are requested by January 6, 2011.

The draft describes the research that 25 federal agencies believe is needed to adequately assess the environmental, human health and safety aspects of nanomaterials, and includes information about the state of the science and an analysis of the gaps and barriers to achieving the necessary research. The core research areas involved are nanomaterial measurement, human exposure assessment, human health, the environment, and risk assessment and risk management methods.

AP Study Claims Lead, Cadmium in Collectible Glasses Exceed Federal Limits

Recent testing commissioned by the Associated Press (AP) has reportedly found that lead on collectible drinking glasses depicting comic book characters exceeds the 0.03 percent federal limit for children’s products “up to 1,000 times.” According to the November 22, 2010, AP article, decorative enamel on Superman, Wonder Woman and “The Wizard of Oz” glasses made in China and purchased at a Warner Brothers Studios store in Burbank, California, contained 16 to 30.2 percent lead. Relatively high cadmium levels were also reportedly found on the glasses.

In response to the AP report, Consumer Product Safety Commission (CPSC) spokesperson Scott Wolfson told a news source that the commission would conduct its own tests that will focus on “how much of the metal could come off of the cup and onto a child’s skin and into their mouths.” Federal regulators will reportedly determine whether the glasses are children’s products and, therefore, subject to strict lead limits. If the commission deems them outside that definition, the lead levels would evidently be legal.

AP’s specially commissioned laboratory apparently studied 13 new glasses and 22 old ones, which dated from the late 1960s to 2007. Spokespersons for the importer of the drinking glasses and Warner Brothers were quoted as saying that they considered the products targeted to adult collectors. See AP and Product Liability Law 360, November 22, 2010.

FTC Proposes Privacy Browser Setting for Consumers’ Online Use

The Federal Trade Commission (FTC) has issued a preliminary staff report that proposes a framework for businesses and policymakers to protect the privacy of consumers using the Internet. FTC staff seeks stakeholder comments on the proposed framework until January 31, 2011, and a final report will follow The report coincides with a recent congressional hearing during which FTC officials testified that a “persistent” browser setting could allow consumers to choose whether companies can collect data about their online searching and browsing. According to an agency press release, although online tracking can help targeted advertising efforts, FTC “supports giving consumers a ‘Do Not Track’ option because the practice is largely invisible to consumers, and they should have a simple, easy way to control it.” The option could be accomplished through legislation or “potentially through robust, enforceable self-regulation,” FTC said. “The advantage of industry doing something themselves is that they can move much more quickly than lawmakers,” FTC Chair Jon Leibowitz told news sources.

If Congress chooses to enact legislation, FTC urged it to consider such issues as (i) the benefits that online “behavioral” advertising provides consumers; (ii) “an option that lets consumers choose to opt out completely or choose certain types of advertising they wish to receive or data they are willing to have collected about them”; and (iii) new FTC authority to fine violators to “provide a strong incentive for companies to comply with any legal requirements, helping to deter future violations.” See Legal Times, December 1, 2010; FTC Press Release, December 2, 2010.

Canada Announces “Tough” Lead Regulations

Canada recently announced stringent new rules that will regulate the amount of lead in children’s toys and certain products. Government officials have set lead limits in toys for children younger than age 3 at 0.009 per cent, down from 0.06 percent. The regulations, which will apparently be published before the end of 2010 under the existing Hazardous Products Act, will also apply to products that children younger than 3 put into their mouths, such as baby bottles, “soothers,” beverage straws, and baby bibs. The rules will not apply to kitchen utensils.

“The health and safety of our children is a top priority,” Heath Minister Leona Aglukkaq said in a November 29, 2010, Health Canada press release. “As a mom, I’m proud that our new, tough regulations will make Canada a world leader in strict lead reduction in consumer products, especially toys.” Health Canada is also reportedly amending regulations to significantly reduce the total lead allowed in consumer paints and surface coatings of certain products, including those applied to children’s toys and furniture. It is unknown what, if any, impact the new children’s product regulations may have on U.S. lead limits. See Health Canada Press Release; Postmedia News, November 29, 2010.

Civil and Appellate Procedure Rule Revisions Take Effect

Among the federal rules changes that took effect December 1, 2010, are changes to Civil Rule 26, shielding draft reports by testifying expert witnesses with work-product protection, and Appellate Rule 29, requiring amicus briefs to identify whether “a party’s counsel authored the brief in whole or in part,” “a party or a party’s counsel contributed money that was intended to fund preparing or submitting the brief,” and “a person—other than the amicus curiae, its members, or its counsel—contributed money that was intended to fund preparing or submitting the brief and, if so, identifies such person.” See The Third Branch, November 2010.