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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January 05, 2010 | Posted by
Nena Street
Acknowledgement: Kristin M. Stastny, an associate in Dorsey's regulatory affairs practice group prepared the following post on CPSC-rulemaking under CPSIA.
The Consumer Product Safety Commission (CPSC) is requiring manufacturers of products for infants and toddlers to take steps to keep in touch with people who purchase cribs, strollers, bassinets, and other items from those manufacturers. On December 16, 2009, the CPSC voted unanimously to approve the new rule that will require manufacturers of durable infant and toddler products to establish and maintain a registration card program.
Under the new rule, manufacturers will have to provide postage-paid consumer registration forms with every infant and toddler product and keep records of those who register. The final rule prescribes the text and format for registration cards and establishes requirements for registration through the internet. The rule also requires that manufacturers establish a means of permanently placing the manufacture’s name and contact information, model name and number, and the date of manufacture on each product. According to the statement of Commissioner Thomas H. Moore, the CPSC intends that the product registration cards will promote a higher rate of product registrations and, in turn, provide better notification for product owners, thereby increasing the overall effectiveness of the recall process and preventing unnecessary deaths from durable infant and toddler products.
For manufacturers of full-size cribs and nonfull-size cribs, toddler beds; high chairs, booster chairs, and hook-on chairs; bath seats; gates and other enclosures for confining a child; play yards; stationary activity centers; infant carriers; strollers; walkers; swings; and bassinets and cradles, the final rule goes into effect 180 days after publication in the Federal Register. For manufacturers of children’s folding chairs; changing tables; infant bouncers; infant bathtubs; portable toddler bed rails; and infant slings the final rule goes into effect 365 days after publication in the Federal Register. For all product categories not listed, there is no current registration requirement imposed. However, the CPSC has reserved the right to make any future additions to the list through notice and comment rulemaking.
January 11, 2010 | Posted by
Nena Street
As of January 1, 2010, Illinois law requires lead warning labels for children’s jewelry, child care articles, and toys containing paint that contain more than 40 parts per million (ppm) lead content. With a labeling threshold of 40 ppm, significantly lower than the federal lead content limit of 300 pm, the Illinois Lead Poisoning Prevention Act adds a substantial new regulatory burden for manufacturers or importers wishing to sell children’s products in Illinois.
Illinois Warning Requirement
Specifically, the Illinois Law provides that “no person, firm, or corporation shall sell, have, offer for sale, or transfer [children’s jewelry, child care articles, or toys containing paint] that contain a total lead content in any component part of the item that is more than 0.004% (40 parts per million) but less than 0.06% (600 parts per million) by total weight or a lower standard for lead content as may be established by federal or State law or regulation unless that item bears a warning statement that indicates that at least one component part of the item contains lead.”
The Illinois Law requires each warning label to contain at least the following language: “WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD.” Warning labels must be located on the product itself or on the label of the immediate container of the product. The law also provides that compliance with hazardous substance labeling requirements under the Federal Hazardous Substances Act constitutes compliance with the Illinois warning label requirements.
Violation of the Illinois Lead Law is punishable as a Class A misdemeanor. The Attorney General or the State’s Attorney in which the violation occurs may also bring an action for enforcement of the Illinois Law, a temporary restraining order or preliminary injunction, or may seek a civil penalty.
Preemption Problem?
Whereas CPSIA requirements govern the lead content of children’s products, the Illinois Lead Law requires a warning statement on certain products with lead content above 40 ppm but below the federal limit. As detailed in a previous post, the 2008 Consumer Product Safety Improvement Act (CPSIA) lowered the lead content limit for children’s products to 300 ppm, and this limit will become progressively lower in coming years, to reach a potential low point of 100 ppm in August of 2014. CPSIA also lowered the lead paint limit for all consumer products, not just children’s products, to 90 ppm.
CPSIA mandates that if the lead content of a product exceeds the applicable limit, then the product is a banned hazardous substance under the Federal Hazardous Substances Act (FHSA). The FHSA bans the introduction of or receipt in interstate commerce of any banned hazardous substance. Under existing federal law, there is no requirement that lead-containing children’s products that meet the federal standards bear a lead-content warning.
The Illinois Attorney General and Legislature have taken the position that the State’s lead warning requirement is not preempted by federal law because it imposes a labeling requirement, as opposed to a lead content limit like that imposed by the CPSIA. Despite state confidence, a careful review of legislative history and court interpretation of key CPSIA and FHSA provisions, including those provisions relating to preemption, places the law in ambiguous legal territory. Given the regulatory burden the Illinois Law places on manufacturers and importers, I suspect the preemption question is likely to be settled in court at some point.
In a recent article, Manufacturing Jewelers & Suppliers of America considered the impact of the Illinois Lead Law on manufacturers of children’s jewelry and assessed the likelihood of federal preemption. The MJSA article also contains helpful links to regulatory guidance for manufacturers of jewelry.
January 25, 2010 | Posted by
Nena Street
Acknowledgment: Kristin M. Stastny, an associate in Dorsey's regulatory affairs practice group prepared the following post.
The number of states with electronic waste legislation is growing every year. Of those states having electronic waste legislation, the vast majority have followed an extended producer responsibility approach—placing responsibility on manufacturers of covered products to deal with recycling of those products. While there are some common elements to producer responsibility laws, it is essential that producers be familiar with the specific requirements of the statutes in those states where it sells products.
Scope of E-waste Problem
Electronic waste, or e-waste is a relatively new concept, which we discussed in a previous post. E-waste describes discarded, surplus, obsolete, or broken electrical or electronic devices and now makes up approximately five percent of all municipal solid waste worldwide, and growing. In fact, e-waste is the fastest growing component of the municipal solid waste stream because people are upgrading their mobile phones, computers, televisions, audio equipment and printers more frequently than ever before. In the United States alone, approximately 130,000 computers are thrown away every day and over 100 million cell phones are thrown away each year.
States with E-waste Laws
To date, twenty states and New York City have passed legislation mandating statewide electronic waste recycling programs. Several other states are considering such legislation in the coming year. The Electronic TakeBack Coalition publishes a list of all states with e-waste legislation with links to the statutes.
In addition to the twenty states that currently have e-waste legislation enacted, a number of states are currently considering adopting or amending their e-waste laws including Arizona, Georgia, Hawaii, Iowa, Kentucky, Maine, Missouri, New York, Pennsylvania, South Carolina, Texas, Utah, Vermont, and Wisconsin.
Extended Producer Responsibility Approach
Extended producer responsibility (EPR) is a policy that requires manufacturers to accept responsibility for all stages in a product’s lifecycle, including “end-of-life” management when people discard the product. EPR policies generally require manufacturers to fund the collection, recycling, or safe disposal of discarded products.
Currently there are 31 states with at least one producer responsibility law in place. In 2006 there were only 16. And producer responsibility legislation is gaining ground in areas other than electronics, including pharmaceuticals, packaging, plastics, and even carpeting. As more states adopt and amend e-waste legislation, it is likely that this producer responsibility approach will become even more widespread.
Except for California, all state e-waste laws have taken a an extended producer responsibility approach, mandating that manufacturers of electronic products pay for recycling of those products. California’s law, on the other hand, has taken a Consumer Fee approach, requiring consumers to pay a fee at the time of purchase of electrical or electronic devices, which is then used to reimburse recyclers and collectors.
In general, legislation following the producer responsibility approach has used three primary components: (1) manufacturer registration requirements and fees, (2) producer established recycling programs, and (3) market share or return share fee systems to pay for collection and recycling costs.
State regulatory schemes vary greatly, however, with respect to what products are covered, what producers are covered, and what obligations covered producers must meet. Producers should become familiar with the regulations in all states in which they operate and keep abreast of regulatory changes.
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