Welcome to Dorsey's Consumer Products Law blog. This blog provides visitors with informative, up-to-date and easy-to-understand commentary on consumer products matters. Our purpose is to help manufacturers, importers, warehousers, retailers, e-tailers, consumers, and lenders better understand the legal issues impacting the consumer products industry.
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July 30, 2010 | Posted by
Kurt Whitman
A group representing various sectors of the wireless industry has filed a lawsuit in the Northern District of California challenging San Francisco’s new ordinance requiring retailers to disclose radiation levels of the mobile devices they sell. San Francisco Mayor Gavin Newsom signed the “Cell Phone Right-to-Know Ordinance” (“the Ordinance”) into law on July 1, 2010. It will take effect beginning in February 2011. The plaintiff, CTIA—The Wireless Association® (“CTIA”), is a Washington D.C. nonprofit membership organization that advocates for many of the wireless industry’s largest manufacturers and retailers . CTIA initially protested the new ordinance by pledging to move its wireless trade show from San Francisco–the show’s location for five of the past seven years. The lawsuit reflects an even stronger move on the part of the wireless industry to combat local cell phone regulation.
The CTIA Complaint
In its complaint, CTIA asserts in three counts that San Francisco has violated the Supremacy Clause of the U.S. Constitution by attempting to preempt federal law:
• First, CTIA claims that federal law impliedly preempts the Ordinance because the regulatory field of wireless communications belongs exclusively to the federal government.
• Second, CTIA asserts that the Ordinance conflicts with federal law by challenging the FCC’s past determination that FCC-compliant wireless handsets are safe and do not require emission warnings. This claim also states that the Ordinance disrupts Congress’s goal of uniform regulations for wireless communications and upsets the carefully balanced mandated goals of the current standard: (1) to encourage rapid deployment and increased usage of wireless communications within an efficient U.S. telecommunications infrastructure and (2) to protect public health and safety. CTIA argues that the FCC has adopted a safe standard for radio frequency emissions when it set the Specific Absorption Rate limit, and disclosure of already-safe levels would only confuse and mislead consumers.
• Third, CTIA asserts that the Ordinance is in clear violation of the Communications Act because the Act explicitly prohibits States from regulating the “entry of . . . any commercial mobile service.” 47 U.S.C. § 332©(3)(A). This prohibition includes state-imposed warning and label requirements.
CTIA seeks a declaration that the Ordinance violates the Supremacy Clause and is preempted by federal law; an injunction prohibiting San Francisco from implementing, enforcing, or threatening to enforce the Ordinance; and costs, attorneys’ fees, and other expenses.
Recent Cell Phone Safety Trends
San Francisco’s Ordinance arrives in the midst of a recent trend to acknowledge a possible link between cell phone use and health risks. In May, the World Health Organization released its Interphone Study , which analyzed cell phone use and its link to brain cancer. Eleven European nations, Japan, and New Zealand participated in the study. Although the decade-long research did not show a conclusive link between cell phone use and cancer, “suggestions” did exist that heavy cell phone use could increase the risk of brain tumors. Researchers concluded that further research is merited.
In response to the Interphone Study, CTIA issued a statement advocating continued research but verifying the FCC’s currently safe standards. CTIA’s Vice President of Public Affairs John Walls stated, “Interphone’s conclusion of no overall increased risk of brain cancer is consistent with conclusions reached in an already large body of scientific research on this subject.”
Some nations have not waited for definitive results—France has passed legislation that requires cell phones to be sold with an earpiece or headset and forbids advertising to young children or providing cell phones to children under six. In the U.S., both Maine and California have considered legislation requiring warning labels on cell phones.
In June, Ohio Congressman Dennis Kucinich pledged to propose a federal law that would require cell phone warning labels. Kucinich acknowledged the lack of a definitive connection between cell phone use and cancer but claimed that studies funded by the telecommunications industry—like the Interphone Study—were “significantly less likely to find a link between cell phones and health effects.” Kucinich called for a “first-class research program” in the U.S. to find answers and in the meantime a federal labeling law to err on the side of protection.
CTIA’s current lawsuit has the potential to help guide government agencies and legislative bodies in their continued concern about cell phone radiation. With more than 285 million mobile phones in the U.S. and 4.5 billion mobile phones globally , the lawsuit will certainly be an interesting development in the months to come.
July 19, 2010 | Posted by
Elizabeth Gray
On Tuesday, July 13, the U.S. Consumer Product Safety Commission (CPSC) issued a voluntary recall in cooperation with Tween Brands, Inc. of about 137,000 pieces of children’s jewelry containing high levels of cadmium, a toxic heavy metal. Tween Brands owns Justice, the clothing store for preteen girls formerly known as Limited Too. The recall is the sixth in a series of recent product callbacks due to hazardous levels of cadmium. Cadmium, a naturally occurring metal, ranks 7th on the Center for Disease Control’s priority list of the 275 most hazardous substances in the environment. It is carcinogenic, and can cause bone softening, brain damage, and kidney failure. Children can be exposed if they bite, suck on, or swallow cadmium.
The Tween Brands recall was prompted by test reports submitted by the company. A Tween Brands spokeswoman, Carrie Bloom, said the recall was decided "out of an abundance of caution." The recall involves 19 different styles of metal necklaces, bracelets and earrings. Customers can return the jewelry to Justice stores for a full refund. View the CPSC’s press release announcing the recall.
Similarly, on June 30, the CPSC issued a recall of 66,220 children’s bracelets and 2,220 rings distributed by SmileMakers, Inc, citing high levels of cadmium in the products. The jewelry was distributed for free at doctor and dentist’s offices, and the recall instructs parents to simply discard the products. The CPSC also issued a recall on June 8 in cooperation with McDonald’s. The agency recalled over 12 million “Shrek” movie-themed drinking glasses that were sold at restaurants nationwide. The paint on the glasses contained elevated levels of cadmium, and the CPSC was concerned that children would touch the paint and put their hands in their mouths. McDonald’s offered a $3 refund for the glasses, which is $1 more than their purchase price.
Product manufacturers, most in Asia, have begun using cadmium in products more frequently due to the Consumer Product Safety Improvement Act of 2008 (CPSIA), which set a new, stringent standard for lead in children’s products (read more in Scott Peterkin’s May 24 post and Nena Street’s February 22 post). Cadmium prices have recently plummeted, so the metal provides a convenient and inexpensive substitute for lead. Though the CPSIA contains some regulation of cadmium, the standards limiting its use are significantly less strict than those regulating lead, and only apply to painted toys, not jewelry.
Fashion industry representatives are calling for a review of national cadmium standards in consumer products. Responding to this concern, the CPSC has started a scientific literature review of cadmium and other heavy metals, and is developing a highly protective standard for cadmium in children’s products. Currently, the agency applies a legal guideline that allows action against “hazardous levels” of cadmium without setting specific allowable levels. Earlier this year, CPSC Chairwoman Inez Tenenbaum publicly warned manufacturers in Hong Kong not to replace lead with cadmium or other toxic metals. The agency reiterated its warning to Asian manufacturers during the announcement of Tuesday’s Tween Brands recall. Some American companies have started voluntarily testing for cadmium in their children’s jewelry as a preventative measure. To read more about recent cadmium-related recalls, see http://www.themonitor.com/articles/jewelry-40761-cadmium-children.html.
Identical bills are pending in the U.S. Senate and House of Representatives that prohibit the sale or distribution of children’s jewelry containing cadmium, barium, and antimony. (S. 2975, the Safe Kids’ Jewelry Act, and H.R. 4428, the Children’s Toxic Metals Act). As well, several states have passed legislation limiting or banning cadmium in children’s products. (See Scott Peterkin’s May 24 post and Nena Street’s February 22 post.) Recent actions include:
• Connecticut: H.B. 5314 (signed into law June 4, 2010) prohibits the manufacture, sale, and distribution of children’s jewelry that contains more than 75 parts per million of cadmium, beginning July 1, 2014.
• New Jersey: S-1636 (introduced in the Senate March 4, 2010) prohibits the manufacture, sale, distribution, and importation of products intended for children under 6 that contain any lead, mercury, or cadmium.
• New York: S-9561 (introduced in the Senate January 19, 2010) prohibits the sale of children’s jewelry that contains over 0.5 parts per million leachable cadmium. As well, A-9771 (introduced in the Senate January 26, 2010) bans the use of any cadmium in products made for children under 12.
Elizabeth Gray is a Summer Associate at Dorsey & Whitney LLP. Please see our web site at www.dorsey.com.
July 16, 2010 | Posted by
Valerie Paula
On June 9th, Canada introduced the Canada Consumer Product Safety Act (bill C-36) in the House of Commons. The bill would modernize Canada’s 40 year-old existing consumer product laws and would give the government more oversight and enforcement power.
Bill C-36 amends the schedule of prohibited products to include Bisphenol A in polycarbonate baby bottles. The new law would also prohibit products deemed to be unsafe, prohibit labels with false or deceptive health and safety claims, and give authority to Health Canada to recall dangerous products. The key provisions proposed include:
• A General Prohibition against the manufacture, importation, advertisement or sale of consumer products that pose an unreasonable danger to human health or safety.
• Orders for Corrective Measures, including Recall. This allows for quicker government response to address an emerging health of safety problem.
• Mandatory Reporting of Incidents. Industry must report when they have knowledge of a serious incident, or death, to provide an early warning to the government.
• Ministerial Orders for Test/Study Results. Manufacturers or importers must provide information on products when so ordered to verify compliance or prevent noncompliance.
• Document Retention by Industry. This facilitates product tracing throughout the supply chain, in particular in situations where a consumer product would need to be recalled.
• Increased Fines and Penalties for Violations.
• Administrative Monetary Penalties. Penalties will be allowed to deal with noncompliance, including criminal prosecutions.
• Scope. The new law expands the scope of consumer product laws to cover the manufacture of consumer products.
• Packaging and Labeling. New prohibitions are placed on packaging, labeling or advertising that is false, misleading or deceptive, as it relates to health or safety.
Bill C-36 contains significant differences from a previous product safety bill (C-6) that was introduced in January 2009. Bill C-6 passed the House of Commons, but died in the Parliament. New changes contained in bill C-36 include, but are not limited to, authorizing the Minister to order product recalls, adding specific time frames for a review officer to complete recall orders, and eliminating an exemption from liability for inspectors entering onto or crossing over private property during an inspection.
As noted above, the new law would require industry to provide information to the Minister of Health. Such reporting will be required for any of the following consumer product safety incidents, including near misses:
• An occurrence that resulted or could reasonably be expected to have resulted in death or serious adverse health effects;
• A defect or characteristic that may reasonably be expected to result in death or serious adverse health effects;
• Inadequate labeling or instructions that could lead to such results; and/or
• A recall order or other corrective measure initiated for human health or safety reasons.
Valerie Paula is an Associate in the Regulatory Affairs Department at Dorsey & Whitney, LLP. Please see our web site at www.dorsey.com.
June 11, 2010 | Posted by
Kristin M Stastny
On April 15, 2010, the California Department of Toxic Substances Control (DTSC) released an Outline of its Draft Regulations for Safer Products. This outline is one step toward the adoption of regulations that are likely to significantly affect manufacturers of consumer products that are sold, manufactured, imported, marketed, or distributed in California. The regulations propose to require manufactures to conduct analyses of products containing specifically identified chemicals and to consider alternatives to using those chemicals. The regulations would also authorize DTSC to implement regulatory responses ranging from requests for information to complete prohibitions on the use of specified chemicals. Because DTSC is still in the early stages of developing regulations, manufacturers now have the opportunity become involved in shaping the regulations in ways that will ensure the regulations are not overly costly or burdensome.
Background
In September 2008, California Governor Arnold Schwarzenegger signed two Green Chemistry framework laws—SB 509 and AB 1879. These laws are designed to reduce hazardous chemicals in consumer products and to stimulate the green design and manufacture of such products.
SB 509 creates an online Toxics Information Clearinghouse—a web-based database, to increase consumer knowledge about the toxicity and hazards of thousands of chemicals used in California. AB 1879 establishes authority for DTSC to develop regulations that create a process for identifying and prioritizing chemicals of concern and to create methods for analyzing alternatives to existing hazardous chemicals. It also allows DTSC to take certain actions based on the alternatives analysis that range from "no action" to "restrictions or bans."
Under the authority of AB 1879, DTSC has released an Outline of its Draft Regulations for Safer Products and is now seeking public comment before initiating its formal rulemaking process.
Proposed Regulatory Framework
The approach proposed by DTSC in its outline would require DTSC to identify “Chemicals Under Consideration,” “Chemicals of Concern,” “Products Under Consideration,” and “Priority Products.” Under DTSC’s outline, these classifications will affect how products are regulated. The list of Chemicals Under Consideration would be developed based on consideration of a number of factors including adverse impacts on the environment, adverse impacts on sensitive subpopulations, physical properties, and anticipated rates of exposure. From that list, DTSC would develop a list of priority Chemicals of Concern. Products under Consideration are products that contain a Chemical of Concern. Priority Products are products from the list of Products under Consideration that are determined to be of highest priority. Products are identified as Products Under Consideration and Priority Products based on consideration of a number of factors identified in the outline. Additionally, any person may petition DTSC to evaluate a chemical or product during the prioritization process to be added as a Priority Product.
The outline proposes the following regulatory framework:
•Certificate of Compliance: Products listed as Priority Products could only be sold with a certificate of compliance stating that the manufacturer is in compliance with, or is exempt from, the regulations.
•Information Submission: The DTSC would have authority to request extensive information from manufacturers including product marketing data and chemical information submitted to the United States Environmental Protection Agency, the Canadian Environmental Protection Agency, or the European Commission under the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulations.
•Alternatives Assessments: Manufacturers of Priority Products would be required to perform an Alternatives Assessment of their product. This process would begin with the preparation of an Alternatives Assessment Work Plan, which would identify the alternatives to be considered and the proposed methodology. DTSC would review the Work Plan for compliance with AB 1879. Once DTSC determined that the Work Plan meets the requirements of AB 1879 and the regulations, the manufacturer would be required to complete an Alternatives Assessment and prepare an Alternatives Assessment Report. Based on this report, DTSC would identify appropriate regulatory responses.
•Regulatory Response: After a manufacturer prepared an Alternatives Assessment Report, DTSC would have authority to determine the most appropriate regulatory response to limit the effect of the Chemical of Concern on public health and the environment. Potential regulatory responses would include: (1) requiring additional information regarding the Chemical of Concern or proposed safer alternative(s); (2) requiring product information disclosure to consumers; (3) placing restrictions on the use of Chemicals of Concern in the consumer product; (4) prohibiting use of Chemical of Concern in the consumer product; (5) imposing safety measures to control access to the Chemical of Concern in the consumer product; (6) requiring end of life management of the product; and (7) requiring research and development with respect to the product. Alternatively, DTSC may determine that no further action is required.
Next Steps
The next step in the regulatory process will be the creation of draft regulations based on the outline already developed by DTSC and any comments received in response to this outline. According to DTSC, the draft regulations will be released in the very near future and will begin a formal rule-making process. Under AB 1879, the regulations must be adopted by January 1, 2011.
Manufacturers who may be impacted by these regulations may want to submit comments to DTSC’s outline, before the formal rulemaking process commences. DTSC is currently accepting feedback on its outline by e-mail at green.chemistry@dtsc.ca.gov. Additionally, interested parties may wish to submit comments during the rulemaking process. To track DTSC’s progress in preparing final regulations, visit DTSC’s Green Chemistry website.
Kristin M Stastny is an Associate in the Regulatory Affairs Department at Dorsey & Whitney, LLP. Please see our web site at www.dorsey.com.
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