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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May 07, 2010 | Posted by
Kieran Dwyer
The Consumer Product Safety Commission (CPSC) is in the process of implementing requirements for the testing of consumer products. The rules would require reasonable testing for non-children’s products, independent laboratory testing for children’s products, and labeling products to indicate compliance. The rules would implement Section 14(a) and (d) of the Consumer Product Safety Act and Section 102(b) of the Consumer Product Safety Improvement Act of 2008, which require the implementation of testing programs.
For non-children’s products a manufacturer would have to certify that the product has undergone a reasonable testing program which provides a high degree of assurance that the products will comply with all applicable rules, bans, and standards of regulation for that product. The reasonable testing program would be required to have five components, including a product specification that identifies the product, certification testing on samples of the product, a production testing plan to test products manufactured after certification, a remedial action plan for the event a sample fails a test, and a recordkeeping plan for the testing. The rules outline specific requirements for each of these steps.
Third-party testing would be mandated for children’s products. The manufacturer would have to submit samples of the product to a third-party laboratory for certification that the product complies with all requirements for children’s products. The product would have to undergo continued third-party testing during the life of production. The manufacturer would also be responsible for verifying the tests through a second third-party tester. Procedures would be required to assure that undue influence was not exerted on the third party testers by the manufacturer. Finally, there would be mandated record keeping for the testing, and remedial plans would have to be in place in case the products were to fail the tests. The rules give detailed specifications for each of these requirements.
Products certified pursuant to these requirements would be able to bear a label indicating that the product complies with the consumer product safety rules enforced by the CPSC.
These rules, if approved, will be listed at 16 C.F.R part 1107. For more information on the details of these rules or the products regulated, please contact an attorney.
May 14, 2010 | Posted by
Valerie Paula
Proposed legislation titled the Consumer Product Safety Enhancement Act of 2010 (CPSEA), which is sponsored by Energy and Commerce Chairman Henry Waxman (D-CA), is currently being debated in the House of Representatives. The CPSEA, if passed, would amend the Consumer Product Safety Improvement Act and Consumer Product Safety Act. The draft legislation has garnered mixed reactions, including from the CPSC.
Waxman introduced the CPSEA on March 11. The 20 page bill would give the CPSC more flexibility in creating exceptions to lead limits for certain consumer products. The CPSEA would also provide some relief from the strict requirements for small businesses, thrift stores, and small-batch manufacturers.
On April 29, 2010, the CPSEA was debated at a hearing before the House Subcommittee on Commerce, Trade and Consumer Protection. As part of the record, Nancy Nord, CPSC Commissioner, submitted comments on the CPSEA. Nord acknowledged that although “the language of the CPSIA is drafted so tightly” that exclusions to the lead limits “is not workable,” the draft CPSEA exception language “has serious problems that should be addressed before final legislation is enacted.” Nord went on to say the exception language of the draft bill is “subjective, will favor large companies who can better afford the extensive and expensive process, and will be resource intensive for the agency to administer, with little true safety progress to be gained.”
According to Publishers Weekly, a focus of the April 29 hearings was on the possibility of exempting children’s products that contain lead where the lead is considered either inaccessible or necessary. The hearing did not, however, address one industry’s concerns - book publishers - that ordinary children’s books should be exempted from all lead requirements.
There have been previous efforts to amend the Consumer Product Safety Improvement Act and Consumer Product Safety Act in order to add more flexibility. However, all attempts have been unsuccessful to date.
Valerie Paula is an Associate in the Regulatory Affairs Department at Dorsey & Whitney, LLC. Please see our web site at www.dorsey.com.
May 24, 2010 | Posted by
Scott Peterkin
Wal-Mart announced last month that it has begun testing many of the children’s products it sells for cadmium. According to the company’s April 26, 2010 announcement, “all toys, child care articles, children’s costume jewelry and children’s jewelry craft making kits” will be tested for cadmium and must meet Wal-Mart’s requirements. The company’s requirements apply to products manufactured as of April 9, 2010.
Background. Wal-Mart’s decision to limit and test for cadmium stems in part from a media investigative report earlier this year of high levels of cadmium in children’s jewelry sold by U.S. retailers, including Wal-Mart (read more in Nena Street’s post from February 22nd). In recent months, the U.S. Consumer Products Safety Commission (CPSC) has issued a series of recalls involving products containing cadmium, and lawmakers at the state and federal levels have proposed adopting stringent limits on cadmium in children’s products. While not known to be dangerous if simply worn, the concern with children’s items containing cadmium is exposure from biting or sucking on items containing cadmium.
Wal-Mart’s Announcements. On March 5, 2010 Wal-Mart issued a Product Safety and Regulatory Notice to its suppliers of children’s products, informing them of the company’s decision to adopt standards and testing methods for certain heaving metals, including cadmium, in toys, child care articles, children’s costume jewelry, and children’s jewelry-making craft kits. The standards the company has adopted are based on EN 71-3 (British Standard Safety of Toys – Part 3: Migration of certain elements). Under Wal-Mart’s standards, the cadmium soluble limit for substrate components and for surface coatings is 75 parts per million (ppm).
Wal-Mart issued a statement on its new cadmium testing standards on April 26, 2010. In its announcement, the company stated that all covered products “tested on or after April 9, 2010 must meet these new Walmart requirements.” Most recently, Wal-Mart announced on May 19, 2010 that it has pulled a line of necklaces and bracelets that were found in February of this year to contain high levels of cadmium. Though the company had previously announced that it would not go back and test products already in its stores prior to April 9th (the date its new testing standards went into effect), according to its statement last week Wal-Mart has apparently done just that and removed from its shelves “the few products that did not” meet Wal-Mart’s new standards.
Update from the Legislative Front. Wal-Mart’s decision to voluntarily adopt standards for cadmium comes against a backdrop of new and pending state laws regulating cadmium levels in certain children’s products. Below is a list of some of the states that have enacted or are close to enacting cadmium legislation:
• Minnesota S.F. 2510 (signed into law May 15, 2010) – section 27 of this bill adds Minn. Stat. 325E.3891, which establishes a limit of 75 ppm of cadmium in children’s jewelry.
• Illinois H.B. 5040 (passed both houses May 3, 2010) – would enact the Cadmium-Safe Kids Act, which would impose a limit for cadmium of 75 ppm in children’s jewelry.
• California S.B. 929 (passed Senate April 26, 2010) – would amend the Heavy Metal-Containing Jewelry Article of the Health and Safety Code to prohibit the sale of children’s jewelry that contains cadmium in excess of 75 ppm.
Additionally, the Safe Kids Jewelry Act (S. 2975) remains pending in the U.S. Senate. This federal legislation would prohibit the manufacture, sale, or distribution of children’s jewelry containing certain heavy metals, including cadmium. Until Congress enacts such federal legislation, expect the States, CPSC, and the private sector to continue to lead the charge to address cadmium in children’s products.
Scott Peterkin 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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