Phthalate Ban – What’s In and What’s Out

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 See, CPSC Phthalate Draft Guidance .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

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