SAFETY QUESTION #7

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.

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