Consumer Products Law Blog

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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CPSC Staff Approves Composite Testing for Lead Paint

The CPSC staff has approved use of a composite test procedure for the analysis of lead in paint and other similar surface coatings. While the test procedure is not mandatory and does not change existing accreditations for compliance with the lead paint standard, the new procedure does signal a move to balance the requirement for testing and testing cost considerations. The CPSC staff has concluded that the test method is sufficient to evaluate products and components with lead paint or lead in surface coatings for compliance with the CPSIA standard of 90 ppm which becomes effective on August 14, 2009. The test procedure can be found here:

CPSC Lead Paint Testing

Question of the Week #6

NEW TO OUR BLOG - A FEATURE WE CALL OUR QUESTION OF THE WEEK

We will be putting up a consumer product safety question every week. The answers will be forthcoming the following week along with a new question posed. Check back frequently and let us know if you have a question.

We recently posed Question #5: Does the CPSC regulate products that contain nanotechnology?

Response: The U.S. Consumer Product Safety Commission (CPSC) was created in 1973, well before there was serious consideration on the use of nanotechnology in consumer products. The agency, however, has jurisdiction to regulate most all “consumer products,” defined to mean:

any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise….

So, what exactly is nanotechnology and nanomaterials?

Nanotechnology is the process that directly manipulates matter at the atomic level to fabricate new molecules and materials. Nanomaterials are defined as materials/particles that range from 1 to 100 nanometers in length. The use of nanotechnology and nanomaterials is intriguing because the ability to make tiny molecular changes may allow for significant improvements in the performance and durability of materials and products. However, while we may achieve better and more effective products with nanotechnology, there is significant uncertainty as to whether nanomaterials cause any adverse consequences to the environment or to human health and safety.

According to the CPSC, nanomaterials represent a wide range of compounds that may vary significantly in their structure, physical and chemical properties, and potentially in their behavior in the environment and in the human body. The CPSC staff has not yet taken a position on exposure to or the health effects that may result from exposure to nanomaterials in consumer products. The agency is currently working with other federal agencies, such as the EPA, OSHA, the Nanoscale Science, Engineering and Technology (NSET) and the Nanotechnology Environmental Health Issues (NEHI) to promote the sharing of data and best available practices for regulation of nanomaterials.

A recent study by the Woodrow Wilson International Center for Scholars and the Pew Charitable Trusts concluded that the CPSC is ill-prepared for regulation of nanotechnology in consumer products. The study recommended that the CPSC build a nanotechnology knowledge base and expertise. It also encouraged companies and the agency to work cooperatively to allow for review of product research studies, risk assessments and safety data. The study called for the CPSC to convene a Chronic Hazard Advisory Panel (CHAP) to evaluate the health and safety risks associated with nanoproducts currently on the market that are intended for use by children. It also appealed to industry to begin work on voluntary safety standards for the most prevalent nanoproducts currently on the market and those that are intended for use by children. Last, the study urged Congress to amend the Consumer Product Safety Act to give CPSC the authority to require manufacturers to identify any nanomaterials in their products.

A copy of the study can be found here:

CPSC and Nanotechnology study

It is particularly noted that the laws that govern CPSC oversight of consumer products do not provide for “pre-market” approval from the agency before a product is distributed in commerce. This presents an interesting question of regulation. Should companies be required to prove the safety of their products that incorporate nanotechnology and nanomaterials prior to commercialization? We already have such a system for EPA’s pre-market review of “new” chemicals under the Federal Toxic Substances Control Act. Should a similar program be implemented for nanomaterials? These questions are under significant debate in a large number of forums.

The CPSC’s regulation of nanotechnology and nanomaterials in consumer products is an evolving process. The agency has current authority to regulate nanomaterials, but the agency’s regulatory paradigm responds to acute risks and otherwise relies on corporate self-reporting. This may be ineffectual in assessing chronic or long term safety concerns relating to nanomaterials in consumer products. A new regulatory model may be needed.

We expect to see a more debate on nanotechnology regulation in the coming year, both in the halls of science and at the legislature. As the old adage goes, you can’t stop progress and innovation. The question is can you keep it safe?

Now for this weeks new Question of the Week #6: I have read about the safety limits for lead and phthalates under the CPSIA. I also understand the several states have adopted different lead and phthalate standards. What standards apply to my products?

Check back with us for our response. Also, let us know what you think of our blog and questions you may have about consumer product safety.

Minnesota bans BPA, adopts statewide approach to regulate chemicals in children's products

Child sippy cupLast week, Minnesota became the first state to ban bisphenol A (BPA) in children’s baby bottles and sippy cups. At the same time, Minnesota Governor Tim Pawlenty also signed the Toxic Free Kids Act, which creates a statewide approach to evaluating chemicals in children’s products.

Suffolk County, New York is the only other jurisdiction to have banned BPA in children's cups. Other states considering a BPA ban include California, Connecticut, Michigan and New York.

To learn more about the new laws, check out my earlier post Minnesota Legislature Considers Toxic Free Kids Act and BPA Free Baby Products Act.

Obama pledges increased CPSC funding, nominates new CPSC chair, expands commission

Nearly a year after Congress rewrote consumer product safety laws and fundamentally redefined the duties of the Consumer Product Safety Commission, significant changes to agency funding and leadership appear imminent. According to a recent announcement by President Obama, agency funding will soon double, the agency will finally have a chair, and the commissioner ranks will swell from two to five.

Federal fundingEarlier this month, President Obama announced plans to double CPSC funding. Toward that end, Obama requested a 71% increase in agency funding over 2007. Given the recent expansion of CPSC authority, a two-fold increase may be inadequate to enable the agency to execute the ambitious agenda adopted by Congress in the CPSIA.

In addition, President Obama nominated Inez Moore Tenenbaum to lead the Consumer Products Safety Commission. I find it troubling that despite the sweeping legal changes and expedited rulemakings which have occurred during the past year, the position of commission chair has been vacant. It has actually been vacant since summer 2006 and Commissioner Nancy Nord has been Acting Chairman of the agency during that time. More troubling than operating without a chair while making high impact decisions is that fact that one commissioner seat has been vacant during this time. Indeed, the CPSC has operated with only two commissioners, Nancy Nord and Thomas Moore for the past few years. Even before 2006, the agency had been operating with only three commissioners for over 15 years. You can review a chronology of CPSC commissioners at their website. To address this issue, Obama appointed Robert S. Adler as a new CPSC Commissioner, bringing (with Tenenbaum) the commissioner ranks to four. Obama promised to add a fifth commissioner.

Chicago bans BPA in baby bottles

baby bottlesThis week Chicago became the first city in the nation to ban bisphenol-A (BPA) in baby bottles and sippy cups. BPA is a chemical commonly used in plastic water bottles and food containers to make the container clear and shatter-resistant.

Following the lead of one county (Suffolk County, NY) and one state (Minnesota), Chicago is now the third jurisdiction in the US to ban BPA in baby cups. We may see more laws emerge this season because similar bans are pending in Congress and a dozen state legislatures. Canada is the only country to ban importation of baby bottles containing BPA.

It is unclear whether BPA poses a health risk and both sides of the debate tout scientific studies to bolster their position.

On the one hand, the US Food and Drug Administration has approved use of BPA in consumer products which contact food. Echoing this sentiment, the Chemistry Council said

This new Chicago law is contrary to the global consensus on the safety of BPA and ignores the expert evaluations of scientists and government bodies from around the world. These particular restrictions on the sale of baby bottles and sippy cups, intended for use by children under the age of three and which contains bisphenol A (BPA), are unwarranted.

The movement to ban BPA is led by several nonprofit and advocacy groups. According to the Environment News Service, in the past 12 years, over 100 studies have reportedly concluded that BPA is dangerous to animals and that a study by the Center for Disease Control and Prevention (CDC) found that 95% of Americans tested had BPA at levels equivalent to those found to cause abnormalities in animals.

Expect the debate over BPA will continue to increased in the coming months.