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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February 02, 2009 | Posted by
Nena Street
On Friday, the Consumer Product Safety Commission (CPSC) approved a proposed stay of enforcement for certain testing and certification requirements under the Consumer Products Safety Improvement Act (CPSIA).
The stay of enforcement delays most new certification and testing requirements adopted under the CPSIA until February 10, 2010. The stay does NOT delay implementation of lead or phthalate content limits which go into effect on February 10, 2009, but the stay does delay the requirement that manufacturers or importers of such products “prove” their compliance through product testing and certification.
The stay does not apply to third party testing and certification requirements for: (1) the ban on lead in paint and other surface coating for products made after December 21, 2008; (2) standards for cribs and pacifiers made after January 20, 2009; (3) the ban on small parts made after February 15, 2009; and (4) the limits on metal components for children’s jewelry made after March 23, 2009. Nor does the stay apply to certification requirements for all-terrain vehicles built after April 13, 2009 or pool drain cover requirements. Finally, the stay does not apply to pre-CPSIA testing and certification requirements.
As Dorsey Partner Mark Kaster told Alana Semuels of the Los Angeles Times on Friday, the delay will buy time for thousands of companies that hadn’t heard about the law until recently. “It’s going to help a large contingent of companies that really are in total confusion about what the CPSIA is trying to accomplish.” Read Semuel’s entire article, Children’s product sellers get 1-year reprieve on lead testing.
February 02, 2009 | Posted by
Nena Street
Under the CPSC stay that was issued on Friday 1/30/09, companies would not be required to provide testing or certification documentation regarding the compliance of their products with certain new CPSIA rules and standards.
The agency took this action because of the utter confusion over interpretation and applicability of the CPSIA. For example, the agency is working on rulemaking pertaining to applicability of the CPSIA to electronic products, inaccessibility of components in children's products containing lead and determinations on whether certain materials will not inherently exceed lead content limits. There is also confusion over expensive phthalate testing which is crippling many small business owners -- assuming they could even get testing data which is backlogged for weeks.
Notwithstanding the agency's action, the CPSC stay may have limited practical utility, because the commission stated that "the stay does not relieve [companies] of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009, dealing with lead, phthalates and a number of other toy standards. Any changes to these requirements will need to be addressed by Congress." Bottom line, consumer products (including existing inventory) that exceed an applicable CPSC standard (such as the 600 ppm standard for total lead in children's products) are still deemed a banned hazardous substance and can't be sold after February 10, 2009, unless Congress jumps in and amends the law.
Also, CPSC stay has no legal effect on the ability of state attorney generals to enforce the testing and certification provisions of the law. While the CPSC recommends that the AG's do not undertake enforcement, some AG's may disregard the recommendation and seek to enforce the law. We may also see third-party lawsuits challenging the stay.
There are a few proposals now floating around Congress to amend the CPSIA, but it is unclear whether Congress will act before 2/10/09. While the CPSIA is a well-intentioned law, there comes a time to step back from the brink, reassess and make reasonable changes to strengthen the path forward.
February 02, 2009 | Posted by
Nena Street
Two bills which seek to reduce the amount of toxic chemicals in children’s products sold in Minnesota were recently introduced into the Minnesota Legislature.
The proposed Bisphenol A (BPA) Free Baby Products Act (HF326/SF225) would phase out the use of BPA in children’s products intended for children age three and under. BPA is a chemical used in some baby bottles, sippy cups, and infant formula containers.
The proposed Toxic Free Kids Act (HF250/SF225) would create a standardized approach to evaluating chemicals in children’s products. The Act would grant Minnesota’s Pollution Control Agency (MPCA) authority to review the safety of chemicals in children’s products and create a “priority chemicals list” based on children’s exposure and chemical toxicity. The Act would then require manufacturers to phase out priority chemicals when safer alternatives become available. In addition, the Act would allow the state to access the Interstate Chemicals Clearinghouse (IC2) to facilitate information sharing with other states that have similar laws.
The scope and intent of the Toxic Free Kids Act raises questions as to whether and to what extent it would be preempted by the CPSIA. Overall, the CPSIA did not significantly alter the preemption provisions of the Consumer Product Safety Act (CPSA). The CPSIA clarified that the CPSC could not expand or constrict the preemption provisions in the Acts which it implements (e.g., Federal Hazardous Substances Act (FHSA), Flammable Fabrics Act (FFA), CPSA, Poison Prevention Packaging Act (PPPA)), and specifically provided that it could not extend the reach of the Acts to preempt State or local common law or State statutory law regarding damage claims. The CPSIA also clarified that the CPSIA and FHSA did not affect state warning requirements that were in effect on August 31, 2003 (a nod to California's Proposition 65).
Minnesota is not the only state considering this course of action. The proposed Minnesota Toxic Free Kids Act is modeled after a similar law on the books in Maryland since April 2008 known as An Act To Protect Children's Health and the Environment from Toxic Chemicals in Toys and Children's Products.
February 04, 2009 | Posted by
Nena Street
During our Webinar presentation today, a participant asked whether the CPSC has posted a list of accredited testing laboratories.
Here you go: List of Accredited Testing Laboratories
Note the only labs listed are those accredited to conduct third party testing for the regulations which are not delayed under the CPSC stay of enforcement.
Lead Paint (effective date 12/21/2008)
Full-Size Cribs (effective date 01/20/2009)
Non Full-Size Cribs (effective date 01/20/2009)
Pacifiers (effective date 01/20/2009)
Small Parts Rule (effective date 02/15/2009)
Lead Content in Children's Metal Jewelry (effective date 03/23/2009)
February 05, 2009 | Posted by
Nena Street
This Monday, February 9th, the CPSC will vote on whether to grant a request from the Consumer Product Safety Commission coaltion of the National Association of Manufacturers (NAM CPSC Coalition) to stay the effective date of the new lead content limit of 600 parts per million (ppm) which is to become effective on the following day.
Citing to the practical impossibility of compliance, the NAM CPSC Coaltion, comprised of more than 60 manufacturers, requested a stay of 185 days or until 90 days after the commission issues final rules implementing the lead content limit found in Section 101 of the act.
February 05, 2009 | Posted by
Nena Street
Today, Senator Jim DeMint (R-SC) introduced Senate Bill 374 to amend the Consumer Product Safety Act to provide regulatory relief to small and family-owned businesses.
Co-sponsors of the bill include Senators Saxby Chambliss (GA), David Vitter (LA), and Roger F. Wicker (MS). The bill has been referred to the Committee on Commerce, Science, and Transportation
Read Senator DeMint's Blog about his proposed legislation.
February 12, 2009 | Posted by
Mark Kaster
A federal judge just held that the phthalate prohibitions of Section 108 of the CPSIA unambiguously apply to existing inventory, and that the General Counsel Opinion Letter issued by the CPSC on November 17, 2008 to the contrary must be set aside.
United States District Court Judge Paul Gardephe of the Southern District of New York granted the Natural Resources Defense Council’s motion for summary judgment, denied the CPSC’s cross-motion for summary judgment, declared that the CPSC has violated the CPSIA and the Administrative Procedures Act and set aside the November 17, 2008 General Counsel decision.
See the court decision here:NRDC Court Decision
February 09, 2009 | Posted by
Mark Kaster
CPSC issued an enforcement policy for lead in children's products effective February 10, 2009. Under the policy, CPSC spells out guidelines for enforcement of the 600 ppm lead limit. Manufacturers, importers, distributors, and retailers should be aware that CPSC will not impose penalties against anyone for making, importing, distributing, or selling:
- children's product to the extent that it is made of certain natural materials, such as wood, cotton, wool, or certain metals and alloys which the Commission has recognized rarely, if ever, contain lead;
- an ordinary children's book printed after 1985; or
- dyed or undyed textiles (not including leather, vinyl or PVC) and non-metallic thread and trim used in children's apparel and other fabric products, such as baby blankets.
The Commission states that they generally will not prosecute someone for making, selling or distributing items in these categories even if it turns out that such an item actually contains more than 600 ppm lead.
Sellers will not be immune from prosecution if CPSC's Office of Compliance finds that someone had actual knowledge that one of these children's products contained more than 600 ppm lead or continued to make, import, distribute or sell such a product after being put on notice.
CPSC staff will seek recalls of violative children's products or other corrective actions, where appropriate.
The agency intends to issue interim rules this week covering lead in electronic products.
CPSC still expects companies to meet their reporting obligation under federal law and immediately tell the agency if they learn of a children's product that exceeds the new lead limits starting on February 10, 2009.
This could lead to a significant number of product recalls starting this week.
A copy of the full CPSC press release can be found here: CPSC Press Release on Lead 2 6 09
February 11, 2009 | Posted by
Mark Kaster
As of February 10, 2009, children's toys and child care articles cannot contain more that 0.1% of six phthalates (DEHP, DBP,BBP, DINP, DIDP, and DnOPA) regardless of when they were manufactured. The CPSC said in a press that they will abide by a NY Federal Court decision ruling that the prohibition on phthalates applies to products in inventory.
Under the CPSIA, a "children's toy" is defined as a product intended for a child 12 years of age or younger for use when playing. The CPSC has stated that it will follow the definition of toy in the ASTM F-963 mandatory toy standard which exempts such things as bikes, playground equipment,musical instruments, and sporting goods (except for their toy counterparts).
The CPSIA also prohibits phthalates in "child care article," which include products that a child 3 and younger would use for sleeping, feeding, sucking or teething. By way of example, a pacifier/teether would be an item that would help a child with sucking or teething; a sippy cup would facilitate feeding; and a crib mattress would facilitate sleeping.
While the CPSC requires compliance with the law, the agency has stayed testing and certification requirements as outlined in our earlier blog on 2/2/09.
A copy of the CPSC press release can be found here:CPSC Press Release on Phthalates
February 11, 2009 | Posted by
Mark Kaster
NEW TO OUR BLOG - A FEATURE WE CALL OUR QUESTION OF THE WEEK #1
We will be putting up a consumer product safety question each week. The answers will be forthcoming the following week along with a new question. Check back frequently and let us know if you have a question.
Question #1
Do the CPSIA testing certification requirements apply if a company's products are under the jurisdiction of the CPSC, but there are currently no mandatory CPSC standards that apply to the products, only voluntary standards?
February 12, 2009 | Posted by
Mark Kaster
The CPSC has issued a guide for small businesses, resellers and charities regarding compliance with consumer product safety standards, rules and requirements.
The guide can be found here: CPSC Guide for Small Businesses
February 16, 2009 | Posted by
Emily Willits
A number of states considered or passed legislation regulating phthalates in 2007 and 2008, a trend that is likely to continue in 2009. For instance, in 2007 California enacted a 0.1 percent limit on certain phthalates in toys and child care articles. California’s phthalates law went into effect on January 1, 2009. Vermont and Washington state also enacted phthalates laws in 2008. Washington’s Department of Ecology subsequently withdrew portions of its proposed rules implementing the Washington law due to concerns about preemption by the CPSIA. Other states with proposed phthalates legislation in 2007-2008 included Connecticut, Hawaii, Illinois, Maryland, Minnesota, Missouri, New Jersey, New York, Rhode Island, and West Virginia.
Under the preemption provisions in the Consumer Products Safety Act (which apply to the CPSIA), states may not adopt phthalate limits that are different than those contained in the CPSIA. States may enact identical limits, giving them the ability to enforce the standards separately under state law. In addition, section 108(d) of the CPSIA expressly allows states to regulate chemicals that are used to replace phthalates as they are phased out. We expect a number of states to be active in this area in the upcoming year; stay tuned for future posts.
February 16, 2009 | Posted by
Nena Street
Congress authorized the CPSC to establish alternative lead limits for electronic devices that cannot feasibly meet the 600 ppm lead content limit currently in effect for all children’s products. On February 12, 2009, the CPSC published an Interim Final Rule to provide certainty regarding exemptions for children’s electronic devices that are in the stream of commerce and fall within the scope of the exemption.
The rule recognizes exemptions for certain lead-containing component parts in children’s electronic devices that are unable to meet the standard CPSIA lead limits due to technological infeasibility and in which the use of lead is necessary for the proper functioning of the component part. Exemptions for lead include: lead blended into the glass of cathode ray tubes, electronic components and fluorescent tubes; lead used as an alloying element in steel (if less than .35% lead by weight); lead used in manufacture of aluminum (if less than .4% lead by weight); and lead used in lead-bronze bearing shells and bushings, among others.
The rule also provides that components of electronic devices that are removable and replaceable, like batteries or light bulbs, and that are inaccessible when the product is assembled and in functional form (or are otherwise exempted) are exempted. Comments on the Interim Final Rule must be submitted to the CPSC by March 16, 2009.
February 20, 2009 | Posted by
Sara Peterson
ASTM issued an updated version of its toy safety standard, F963-08, on February 18, 2009. The prior version, F963-07, was identified in Section 106 of Consumer Product Safety Improvement Act as a mandatory consumer product safety standard. The standard became mandatory under the CPSIA on February 10, 2009, although enforcement of testing and certification requirements related to the standard has been stayed by the Consumer Product Safety Commission until at least February 10, 2010.
Under the CPSIA, ASTM’s newly revised standard will become the mandatory standard 180 days after ASTM notifies the Commission of the revision, unless the Commission determines, within 90 days after receiving notice, that the proposed revision does not improve the standard.
Revisions incorporated in F963-08 address ingestion of magnets, acoustics, yo-yo tether toys, impaction hazards from toys, jaw entrapment, and folding mechanisms and hinges. The testing requirements for lead in toys and the ban on composite testing remain the same as in the F963-07 version.
The ASTM F963-08 Standard is available for purchase on ASTM’s website. I know Congress has done it before (e.g., the ASTM standard for environmental site assessments), but I still find it a little odd to have a mandatory legal standard that you cannot access for free.
We have been asked how the CPSC Stay of Enforcement impacts the need to comply with ASTM F963. We will examine this issue soon in a future post.
February 20, 2009 | Posted by
Mark Kaster
NEW TO OUR BLOG - A FEATURE WE CALL OUR QUESTION OF THE WEEK
We will be putting up a consumer product safety question each week. The answers will be forthcoming the following week along with a new question. Check back frequently and let us know if you have a question.
Last week we posed Question #1:
Do the CPSIA testing certification requirements apply if a company's products are under the jurisdiction of the CPSC, but there are currently no mandatory CPSC standards that apply to the products, only voluntary standards?
Response
The Consumer Product Safety Improvement Act at Section 102(a) requires every manufacturer of a product which is subject to a consumer product safety rule under the Act or similar rule, ban, standard, or regulation under any other Act enforced by the CPSC, to issue a certificate. See, 15 United States Code 2063(a). If a product is not regulated under a rule, ban, standard, or regulation enforced by the CPSC, a certificate is not mandated by the law. The issue is whether a product is regulated in any way -- and that is a more detailed inquiry that covers a large range of laws, regulations and even interpretive guidance.
The CPSC enforces not only the Consumer Product Safety Act but also consumer products regulated under the Federal Hazardous Substances Act, the Flammable Fabrics Act, the Poison Prevention Act, the Children's Gasoline Burn Prevent Act, the Refrigerator Safety Act and the Virginia Graeme Baker Pool and Spa Safety Act.
In many cases, the CPSC has not issued a definitive list of rules, standards or regulations, so an importer, manufacturer, distributor, retailer or reselling may not fully comprehend the requirements that may apply to the consumer products they sell. This can lead to uncertainty about the scope of any General Conformity Certification that may be required under the CPSIA.
The lines get further blurred when looking at what constitutes a consumer product -- defined to mean a product produced for sale or use by a consumer around the home or school. This would not include commercial or industrial products, but often products may have a dual use or purpose that may trigger a conformity certificate and reasonable program of testing requirement.
The CPSIA rules and regulations will be evolving. We can help you assess the need for a conformity certificate and a "reasonable" program of testing. Check back often on our blog to see what's new.
One last note: As explained in an earlier blog, the CPSC issued a stay of enforcement for testing and certifications for many products which delays the requirement for certifications and testing until 2/10 or until the agency issues further rules or guidance.
Now for this weeks new Question of the Week #2
Does the CPSIA allow me to export a product if I have not yet instituted a program of testing and I don't know if my product is compliant with a CPSC rule, ban, standard or regulation?
Check back with us next week for our response. Also, let us know what you think of our blog and questions you may have about consumer product safety. MRK
February 24, 2009 | Posted by
Mark Kaster
The CPSC is requesting comments by March 12th regarding the scope of the Phthalate Ban under Section 108 of the CPSIA. See, CPSC Phthalate Draft Guidance . The Phthalate Ban went into effect on February 10, 2009.
Under the ban, it is unlawful for any person to manufacturer for sale, offer for sale, distribute in commerce, or import into the United States any children's toy or child care article that contains certain regulated phthalates in concentrations greater that 0.1 percent.
But what is a children's toy or child care article? Are these categories broadly or narrowly defined? What about dual use products? The CPSC is seeking input from the regulated community on these questions.
Section 108 of the CPSIA defines a “children’s toy” as a “consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.”
The CPSIA defines a "child care article" as "a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething." While the law uses the word "facilitate," it is not defined. According to Webster’s Dictionary, facilitate means to "to make easier." The distinction between products that are subject to the ban and those that are not is unclear. When does a product have play value? Is there a difference between products that "facilitate" feeding, sleeping, sucking, or teething for the child directly verses products that may "facilitate" those processes only indirectly, such as through the parent.
The CPSC is required to consider the level of involvement or proximity of the child and product under the following factors: •A statement by the manufacturers about the intended use of the product, including a label on the product if such statement is reasonable.
•Whether the product is represented in its packaging, display, promotion or advertising as appropriate for use by the ages specified.
•Whether the product is commonly recognized by consumers as being intended for use by a child of the ages specified.
•The Age Determination Guidelines issued by the CPSC in September 2002, and any successor to such guidelines.
For child care articles, the CPSC has proposed that products used directly in the mouth by the child are primary products subject to the phthalate regulation. For example, teethers and pacifiers go directly into the child’s mouth. Products that have direct contact with the child, but may or may not have direct mouth contact, would also be considered primary products. For example, baby blanket, high chair, sipping cup, feeding bottle, bibs and crib teething rail would be primary child care products.
Another class of products to be considered includes consumer products that are not necessarily in direct physical contact with the child, but are in close proximity to the child, such as cribs, crib mattresses, toddler mattresses, mattress covers, or mattress pads. These products may or may not be considered to facilitate sleep.
Products that are used by the parent, but have no contact with the child, are considered secondary products and would not be subject to the regulation under the CPSC's proposed regulation. For example, a consumer may use a bottle warmer, bottle cleaning products, breast pumps, nursing shield/pads, and highchair floor mats to prepare to feed the infant. While these products makes the process easier for the adult feeding the infant, the products and child have no direct interaction.
Another category of child care articles includes products that have multiple functions. Typically, these child care articles are products that offer parents/caregivers an alternative to holding their child, such as bouncers, swings, and strollers. The CPSIA states that if the product is "designed or intended by the manufacturer to facilitate sleep or feeding" it is subject to the phthalate ban.
There CPSC is evaluating many product categories to determine the scope of the regulation. Is a book bag, diaper bag, sports bag, fanny pack, school tote, wallet or backpack a covered product? What about a child’s watch? Do school products like pens, paper and artsy supplies constitute toys or learning tools? How about an electronic device that happens to bear the logo of a cartoon character or pop culture icon – is this a toy?
We are closely following the phthalate developments, both under the Federal law and in the states. Check back often to get the latest updates.
MRK
March 06, 2009 | Posted by
Nena Street
We’ve explained in earlier posts that the CPSIA increased the Consumer Product Safety Commission’s recall authority. This series of posts, titled Consumer Product Recalls 101 will explain what that means to manufacturers, importers, distributors and retailers.
In this first part, I will outline self-reporting requirements. Part 2 will look examine more closely how a company can determine whether it must report under Section 15b. Part 3 will examine how the CPSC Division of Recalls and Compliance evaluates reports of potential product hazards. Part 4 will outline the various recall options. Part 5 will further examine how the CPSIA expanded CPSC recall authority and what it means for businesses participating in the consumer products industry.
First things first. What is a recall? The term “recall” can be used to refer to a variety of corrective actions required by the CPSC and can describe any repair, replacement or refund program.
Part 1: Reporting Requirements
Where to Find Reporting Requirements
Reporting requirements are found in Section 15(b) and Section 37 of the Consumer Product Safety Act and in Section 102 of the Child Safety Protection Act.
Self-Reporting Under CPSA Section 15(b)
Trigger for Reporting Requirement
The CPSC requires all manufacturers, importers, distributors and retailers of consumer products to notify it immediately after obtaining information which reasonably supports the conclusion that a product distributed in commerce (1) fails to meet a consumer product safety standard or ban, (2) contains a defect which could create a substantial product hazard to consumers, (3) creates an unreasonable risk of serious injury or death, or (4) fails to comply with a voluntary standard upon which the CPSC has relied under the CPSIA. Likewise, companies must report upon learning that a product in commerce violates any regulations under other Acts enforced by the CPSC and may constitute product defects which could result in substantial risk of serious injury to the public or an unreasonable risk of serious injury or death.
Do All Parties Really Need to Report?
Yes. However, retailers and distributors may satisfy their reporting obligation by sending a letter to manufacturer or importer of the product describing the defect, risk, or failure to comply. The letter must also be sent to the CPSC Division of Recalls and Compliance.
Where to Report
Companies should file their report with the CPSC Division of Recall and Compliance.
When to Report
Reporting is required “immediately,” which has been interpreted by the CPSC to mean within 24-hours of obtaining reportable information. When the reportable information is obtained by an employee or official of the firm who may be reasonably expected to be capable of appreciating the significance of the information, the CPSC consider the company to have received the reportable information and the clock starts to run on the company’s obligation to report.
If a company learns of potentially reportable information, the CPSC allows up to 10 working days for the company to investigate prior to reporting. In certain circumstances, the CPSC will allow additional investigation time.
Confidentiality of Reports
All reports are initially treated as confidential. In addition, companies can request that their reports remain confidential as trade secret or confidential commercial or financial information. This should be done at the time of reporting.
Reporting Settled or Adjudicated Lawsuits Under CPSA Section 37
Trigger for Reporting Requirement
Generally, manufacturers of consumer products must report information about settled or adjudicated lawsuits if a specific product model is the subject of at least 3 civil actions alleging that the product model was involved in death or serious bodily injury and in each suit the plaintiff prevailed or the settlement involved the manufacturer.
Where to Report
Reports must be filed in writing to the Director of Recalls and Compliance Division of Office of Compliance at the CPSC.
When to Report
Reports must be filed within 30 days after a judgment or final settlement in the last of the 3 lawsuits.
Confidentiality of Reports
Section 37 reports are confidential. The CPSC may not disclose them.
Reporting Child Choking Incidents Under Section 102 of Child Safety Protection Act
Trigger for Reporting Requirement
Each manufacturer distributor, retailer, and importer of products with small parts (such as marbles, small balls, and latex balloons) must report information that reasonably supports the conclusion that a child (of any age) choked on the small part and as a result the child died, suffered serious injury, ceased breathing for any length of time, or was treated by a medical professional.
Where to Report
Reports may be filed with the Division of Recalls and Compliance.
When to Report
Reports must be made within 24-hours of obtaining reportable information.
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