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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July 01, 2009 | Posted by
Nena Street
In late June, Maine became the first state to require manufacturers to establish recycling programs for compact fluorescent light bulbs containing mercury. The new law, titled "An Act To Provide for the Safe Collection and Recycling of Mercury-containing Lighting," will go into effect on September 12, 2009.
Starting on January 1, 2011, all domestic manufacturers or importers of light bulbs containing mercury must implement a state-approved recycling program. As part of the program, the manufacturer must establish collection centers to accept used bulbs from consumers at no cost. Also under the new law, manufacturers must also meet California mercury standards for lamps by 2012.
July 07, 2009 | Posted by
Nena Street
For the next two years (until July 1, 2011), certain parts of children’s bikes, jogger strollers, and bicycle trailers (here “bikes”) will not be subject to CPSIA lead limits. The Consumer Product Safety Commission voted to stay enforcement of the lead content limit for bike components made with metal alloys. Specifically, permissible metal alloys include steel with up to 0.35% lead, aluminum with up to 0.4% lead, and copper with up to 4.0% lead.
Temporary stay granted instead of permanent exemption
Earlier this year, the Bicycle Product Suppliers Association (“BPSA”) petitioned the CPSC to exempt metal alloys from the lead content limit. The CPSC denied the BPSA request for an exemption and instead granted a temporary stay of enforcement. The stay of enforcement applies to all replacement parts provided that the replacement parts contain lead in equal or lesser amounts than the original parts.
Manufacturers must file report in August 2009
By August 29, 2009 (60 days from stay enactment), all manufacturers (and some distributors) covered by the stay must file a report identifying all bike models produced between May 1, 2008 and May 1, 2009, and offering a detailed account of the lead contained in the metal alloy components of each bike.
Manufacturers must file comprehensive plan in December 2009
By December 31, 2009, each covered manufacturer must provide a comprehensive plan to the CPSC describing how and when it intends to reduce the lead exposure from each metal alloy identified in the first report. The report must also address any adverse safety impacts that could result by accelerating the time frame to reduce the lead.
Manufacturers who timely submit the August report and the December plan, may be eligible for an extension of the stay beyond July 1, 2011.
Commissioner Moore explains benefit of stay
In a written statement accompanying the stay, Commissioner Moore expressed concern that enforcement of the lead limits could impair the structural or mechanical integrity of children’s bicycles. Citing a recent rise in bicycle recalls involving cracking frames, breaking handlebars and stems, and breaking forks due to causes unknown to the CPSC, Moore explained that the stay is necessary to allow the industry time to ensure that substitutes for lead do not compromise the structural or mechanical integrity of the bicycles.
Commissioner Nord explains necessity of stay
Commissioner Nord’s written statement takes a different tone. Nord first notes that “enforcement of the law as written by Congress would limit the availability and increase the costs of a product that is almost synonymous with childhood.” Because lead strengthens the safety of bikes, Nord concludes that a stay of enforcement is their only option. As for the requirement that manufacturers develop plans to reengineer their products to remove lead, Nord states “we are requiring that manufacturers use scarce resources in challenging economic times to attempt to address a risk that children just do not encounter.”
Commissioner Nord explains risk of CPSC reliance on stays
Nord concludes her written statement with the following warning and a call for Congress and the agency to take deliberate steps to amend the CPSIA:
It is very troubling that the commission has had to resort to using stays of enforcement to avoid the unexpected, and, in some cases, the dangerous consequences that would result from enforcement of the CPSIA. Such a result does not increase consumer confidence and creates uncertainty in the marketplace. There are those who would add that, at some point, regular use of stays open the agency up to legal challenge for not enforcing the law.
July 17, 2009 | Posted by
Nena Street
Hawaii adopted its Electronic Waste Recycling Act in 2008. Act requirements apply to manufacturers, retailers, and consumers, including households, government entities, businesses and nonprofit corporations. Under the law, manufacturers of covered electronic devices (CEDs) must register with the Department of Health (DOH) and pay an annual registration fee, submit a recycling plan to the DOH, and label all CEDs offered for sale or delivery in Hawaii with a permanently affixed brand label. Retailers of CEDs must provide customers with information on CED collection services in the state. Consumer must recycle CEDs.
What electronic devices are covered?
The law covers consumer electronic products, including: computers, computer printers, computer monitors and portable computers with a screen size great than 4 inches diagonally. CEDs do not include electronic devices that are a part of (a) motor vehicles; (b) equipment for industrial, commercial or medical use; © appliances, such as washing machines, refrigerators, or ovens; or (d) telephones.
Televisions are not yet covered under the Hawaii Electronic Waste Recycling Act. Under the law, DOH is to be crafting a separate plan for the collection, transportation, and recycling of televisions. If the new plan is not implemented by January 1, 2011, then televisions will be subject to the new law and the definition of CED will be expanded to include televisions.
Who is a manufacturer?
Requirements under the Hawaii law apply to manufacturers. “Manufacturer” is defined broadly under the law to include anyone who (a) makes or made CEDs under their own brand; (b) sells or sold CEDs under a brand that they licensed; © makes or made CEDs without affixing a brand; (d) makes or made CEDs and affixed a brand that they did not own and were not licensed to use; and (e) private labelers (retailers who sell or sold CEDs made by others under a brand that the seller owns). Note the retroactive tone of each requirement. Manufacturers that sell 100 or fewer computers annually in Hawaii are exempt.
Who is a retailer?
Retailers include any person who offers new CEDs for sale (not including resale), through any means, including stores, catalogs or online.
Compliance tips
Much of the Hawaii law is already in effect. If your company is subject to this law, it is important to review it and plan for compliance without delay. Here is a short summary of some requirements applicable to manufacturers and retailers.
As of January 1, 2009, all manufacturers of new CEDs must have registered with DOH and paid a $5,000 annual fee. The next registration fee is due at the beginning of 210. As June 1, 2009, all manufacturers selling CEDs in Hawaii must have filed a plan with the DOH detailing a plan to establish, conduct and manage its program for the collection, transportation, and recyling of CEDs sold in Hawaii. Beginning on October 1, 2009, manufacturers must label all CEDs with a permanently affixed and readily visible brand label.
DOH offers a list of the CED manufacturers had registered or received an exemption by DOH, as of July 2009. Under the law, the list is to be updated by DOH on the first day of each month. Each retailer who sells CEDs must review the list before selling a CED. To ensure compliance, a retailer must confirm that manufacturer is on the current list as of the date an order is placed.
July 30, 2009 | Posted by
Mark Kaster
TOXIC HEAVY METALS IN PACKAGING
The Toxics in Packaging Clearinghouse (TPCH) was formed in 1992 to promote packaging legislation originally drafted in 1989 by the Council of North Eastern Governors (CONEG). The packaging legislation seeks to reduce the amount of heavy metals in packaging and packaging components that are sold or distributed throughout the United States. Specifically, the law is designed to phase out the use and presence of mercury, lead, cadmium and hexavalent chromium in packaging in states that enact the legislation. Since packaging comprises approximately one-third of the waste stream, legislation will reduce the amount of heavy metals entering the municipal solid waste stream, landfills and incinerators.
The packaging legislation, in various forms, has been successfully adopted by nineteen states including California, Connecticut, Florida, Georgia, Illinois, Iowa, Maryland, Maine, Minnesota, Missouri, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and Wisconsin.
Under the model law, the term "package" refers to a container providing a means of marketing, protection or handling of a product and shall include a unit package, an intermediate package and a shipping container as defined in American Society for Testing and Materials (ASTM) D 996. The term also includes carrying cases, crates, cups, pails, rigid foil and other trays, wrappers and wrapping films, bags and tubs.
A "packaging component" is defined to mean any individual assembled part of a package such as, but not limited to, any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks and labels.
As noted above, four specific heavy metals are targeted for elimination or reduction under the model law: mercury, lead, cadmium, and hexavalent chromium. According to the TPCH, scientific studies have shown that these metals pose significant environmental and health hazards as toxic constituents of incinerator ash and stack emissions or landfill leachate.
Under the packaging legislation, companies are not permitted to sell or distribute any package or packaging component to which any of the four metals has been intentionally introduced. The law also requires that the “incidental presence” of the metals (i.e., the presence of one of the four regulated metals as an unintended or undesired component of the final package) be reduced to 100 parts per million.
In most states that have adopted the packaging laws, the manufacturers and suppliers of packaging and packaging components must furnish a certificate of compliance to customers upon request. This does not apply to the retailer except where the retailer sells its own private-label products. You should consult your state law for specific requirements and applicability determinations.
The TPCH model legislation is often compared to packaging restrictions in Europe. The table below provides a comparison of US and European packaging standards.
Toxics In Packaging U.S./EU Comparison Chart
A recent TPCH study found that fourteen percent of retail packaging failed a screening test for toxic heavy metals may be in violation of state laws. The report entitled, An Assessment of Heavy Metals in Packaging: 2009 Update, found that lead concentrations detected in printing inks and colorants used on plastic bags were 20 times greater than the model packaging law standards.
Lead or cadmium were also reportedly found in flexible PVC packaging that is often used to package home furnishings, pet supplies, cosmetics and toys. TPCH reports that heavy metals are used as heat and ultraviolet stabilizers in PVC resin to control degradation during processing and use.
According to TPCH, Wal-Mart is taking a proactive approach to require suppliers to provide a certificate of compliance with state toxics in packaging laws or submit packaging samples for testing before they can sell their products in Wal-Mart stores.
The packaging restrictions are enforced separately in each state that has adopted the laws. Penalties for non-compliance vary from state-to-state. In New York, the penalties range from up to $10,000 for the first violation to $25,000 per violation for each violation thereafter, with each package on the shelf constituting a separate and distinct violation. In Connecticut, a violation could result in a penalty of $10,000 per day per violation. The TPCH states that companies can expect more aggressive enforcement of state toxics in packaging laws in the future.
The TPCH report, An Assessment of Heavy Metals in Packaging: 2009 Update, is available for download from the TPCH website at packaging_09_update.pdf
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