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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June 08, 2009 | Posted by
Mark Kaster
The California Assembly passed AB 1329. Beginning on January 1, 2013, the proposed law would ban the use of retail rigid packaging composed primarily of PVC used to hold, protect or display a product. A year later the ban would extend to flexible PVC packaging. The law would apply to covered containers in “the shape of a sack, pouch, or other packaging shape, including a shrink or stretch wrap.”
The main argument behind the bill is that PVC contaminates plastic recycling streams and that PVC packaging contributes disproportionately to the state’s solid waste burden.
Click here for a copy of the California bill.
The California Assembly passed the bill on June 4th. The legislation now moves to the California Senate.
June 22, 2009 | Posted by
Nena Street
Another deadlock. In a tie vote (1-1) on June 5, 2009, CPSC failed to act on a request from Writing Instrument Manufacturers Association (WIMA) to exclude the tips of ballpoint and roller ball pens from CPSIA lead limits. Commissioner Moore voted to deny the request while Commissioner Nord voted to approve the request. In the event of a tie vote, Nord voted that a stay of enforcement should be granted until a definitive vote is cast and Moore voted that no stay of enforcement should be granted. Unless and until CPSC reconsiders the issue ballpoint and roller ball pens which are “children’s products” will be subject to CPSIA lead limits.
Which pens?
CPSIA lead limits do not apply to all pens, just to those that are consumer products designed or primarily intended for children 12 years of age or younger. Most pens are not children’s products, so the WIMA requested exemption would cover just a narrow subset of pens. In a written statement, CPSC General Counsel Falvey explained that the lead limits do not apply to “pens that are as likely to be used by adults as by children,” further noting that “just because an ordinary ballpoint pen might be marketed once a year as a back to school item does not convert that pen from a general purpose item to a children’s product under the CPSIA.”
Without an exclusion, no ballpoint or roller ball pens may be designed or intended as children’s products. Why? Because the tiny tips on the pens contain lead in excess of CPSIA limits and there is no known substitute for that lead.
Commissioner Moore's perspective
Commissioner Moore concluded that the Commission did not have sufficient discretion to grant the exclusion and that there was not a compelling reason for the stay. Arguing against the stay of enforcement, Moore noted that it would “granting a stay would allow the pens that children are most likely to find play value in, and, therefore, are most likely to handle as playthings, to be made and marketed during the period of the stay.” Moore underscored the narrow application of the lead limits and claimed that he does not expect the agency to turn into the “pen police” and rather that industry members should police themselves.
Commissioner Nord's perspective
Focusing on the risk of harm, Commissioner Nord voted in favor of the exemption. Nord noted that in the briefing package, staff concluded that harm through normal use of a lead-containing pen is extremely remote and would come through ingestion, which is particularly remote given the age of children for whom ballpoint pens are appropriate. In conclusion, Nord wrote:
“The Commission needs to spend its resources focusing on products that actually hard children, not chasing speculative harms that are not relevant to the real world. Removing perfectly safe products will needlessly limit consumer choice and, more importantly, not advance consumer safety. If Section 101(b) [providing CPSC authority to grant exclusions to the lead limits] has any meaning at all, then a rulemaking proceeding to consider an exclusion for children’s pens should be initiated.”
June 22, 2009 | Posted by
Nena Street
Connecticut adopted a ban on bisphenol-A (BPA) this month as Public Act 09-103. Beginning on October 1, 2011, no one may manufacture, sell, offer for sale, or distribute any reusable food or beverage container that contains BPA within the state of Connecticut. The ban will also extend to infant formula or baby food that is stored in a plastic container, jar or can that contains bisphenol-A.
Connecticut is now the second state to enact a ban on BPA.
June 24, 2009 | Posted by
Mark Kaster
We will be putting up a consumer product safety question for discussion. The answers will be forthcoming in following weeks along with a new question posed. Check back frequently and let us know if you have a question.
We recently posed Question #7:
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?
Response:
The CPSIA covers a wide range of products, but principally targets children’s products, children’s toys and child care articles. The limits for lead and phthalates are prescribed under the CPSIA, but the law does provide the Consumer Product Safety Commission (CPSC) with some limited ability to set future compliance limits.
A Children’s Product is defined as a consumer product designed to intended for children 12 years or younger
A Children’s Toy is a product designed to intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays
A Child Care Article is a product designed or intended by the manufacturer to facilitate sleep or the feeding of children 3 and younger or to help such children with sucking and teething.
For Lead, there are two distinct statutory requirements as follows:
1. Lead in paints and surface coating materials. The CPSC regulates lead in paint and surface coating under existing regulations at 16 CFR Part 1303. The current lead limit is 600 parts per million (ppm). This limit reduces to 90 ppm on August 14, 2009.
2. Lead in children’s products. Beginning on February 10, 2009, no children’s product may contain more than 600 ppm of total lead by weight for any part of the product. This limit reduces to 300 ppm on August 14, 2009 and to 100 ppm on August 14, 2011, unless the CPSC makes a determination that such limit is not technologically feasible, in which case the CPSC will set an alterative limit. The CPSC must review and revise downward the lead limit no less than every 5 years (starting in August 14, 2013) to require the lowest amount of lead that is technologically feasible to achieve.
The CPSC has issued guidance regarding the lead limits. The new limits do not apply to component parts that are no accessible to a child through normal and reasonably foreseeable use and abuse. A component part is deemed not accessible if it is not physically exposed by reason of a sealed covering or casing. The CPSC also intends to exclude materials whose lead content is consistently below 300 ppm, such as natural materials, children’s books printed after 1985, dye or undyed textiles (not including leather, vinyl or PVC) and non-metallic thread and trim used on apparel.
STAY OF ENFORCEMENT: AS of January 30, 2009, the CPSC voted to stay the enforcement of testing and certifications requirements. The stay makes it unnecessary for any regulated party to test or certify compliance with the lead content limits until February 10, 201, with two exceptions. First, products that a manufactured after December 21, 2008 and contain lead paint or surface coatings must certify based on testing that the product does not contain lead above the CPSC standard. Second, children’s metal jewelry must be certified as meeting the lead limits. Note, the stay of enforcement does not stay the requirement that lead content be reduced to the levels set forth in the statute. The sale of non-compliant products is subject to possible enforcement action, penalties, state enforcement and civil liabilities to consumers.
For Phthalates, the CPSIA includes a ban on a list of six phthalates (chemicals which make plastic more flexible) in children’s toys and child care articles. Like the lead content limit, 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.
The CPSC is evaluating many product categories to determine the scope of the phthalate ban. 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? The CPSC has been holding a series of meetings and intends to issue additional guidance to help answer these questions.
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 states 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. A number of states (CA, WA and VT) have already enacted consumer product safety laws with phthalate bans. Several other states (CT, HI, IL, MY, MN, MI NJ, NY, RI, WV) have proposed similar laws. Of special note, some state laws may extend the phthalate ban to all children’s products and not just toys and child care articles.
Now for new SAFETY QUESTION #8:
What’s all the hype about drywall?
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.
June 26, 2009 | Posted by
Nena Street
With electronic waste streams mounting each year, states across the nation are attempting to tackle the problem through a wide range of new regulatory schemes. We are keeping close tabs on the dynamic patchwork of state regulation of e-waste for many of our clients. In this series of posts, I will examine and summarize the e-waste laws in select states. This post contains a primer on e-waste.
What is e-waste?
Electronic waste is a general term that includes all electronic items that are discarded by their original owners and destined for reuse, resale, salvage, recycling or disposal. Examples include computers, monitors, cell phones, televisions, and scanners. Such waste is often referred to as e-waste, e-scrap or Waste Electrical and Electronic Equipment (WEEE).
What are the environmental risks of e-waste?
The Environmental Protection Agency offers the summary of environmental risk related to e-waste:
Lead, mercury, cadmium and brominated flame retardants are among the substances of concern in electronics. These substances are included in the products for important performance characteristics, but can cause problems if the products are not properly managed at end of life.
Lead is used in glass in TV and PC cathode ray tubes as well as solder and interconnects; older CRTs typically contain on average 4 lbs of lead (sometimes as much as 7 lbs in older CRTs), while newer CRTs contain closer to 2 lbs of lead.
Mercury is used in small amount in bulbs to light flat panel computer monitors and notebooks.
Brominated flame retardants are widely used in plastic cases and cables for fire retardancy; the more problematic ones have been phased out of newer products but remain in older products.
Cadmium was widely used in ni-cad rechargeable batteries for laptops and other portables. Newer batteries (nickel-metal hydride and lithium ion) do not contain cadmium.
How are states managing e-waste?
State regulatory schemes vary and are in constant flux. To date, 19 states and New York City have enacted e-waste laws. The scope of products covered by e-waste laws vary. For instance, the e-waste law in Illinois applies broadly to nearly all manner of electronic products, while the laws in Oregon, West Virginia and Maryland apply only to computers, laptops, monitors, and televisions.
The regulatory requirements also vary. Some states, such as Illinois and Connecticut, now ban disposal of computers and other electronic products in landfills. In an effort to increase recycling of e-waste (so-called “ecycling”), some states have put the financial burden on the consumer, while others put it on the producer. Hence, states like California require consumers to bear the cost of ecycling programs through payment of a fee at the time of purchase. In other states, such as Maryland and Minnesota, producers bear this cost based on their market share. Another model requires the producer to establish e-waste take back programs, such as in New York State.
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