Written by Teresa Zink
Based on a recent HB Litigation Conferences teleconference
The Consumer Product Safety Improvement Act of 2008 (H.R. 4040), signed into law on Aug. 14, has been described as providing the largest expansion of the authority of the Consumer Product Safety Commission since the agency was established in 1972. The CPSIA provides the CPSC with additional funding and staffing, new laboratory facilities, increased enforcement powers, greater oversight of imported products, and new requirements for children’s toys and products.
To help answer questions and compliance issues raised by the new regulations, HB Litigation Conferences brought together three knowledgeable experts to discuss the Act at a teleconference held Dec. 2, 2008.
Francis Citera is co-chair of the Greenberg Traurig Products Liability and Mass Torts Practice Group, Dr. Sanjeev Gandhi serves as a technical director for Consumer Testing Services in SGS and Ed Weil is a Supervising Deputy Attorney General in the Environmental Section of the California Attorney General’s Office.
Starting with some of the basics of the Act, Citera noted that “although the legislation applies to all consumer products, most of the provisions are targeted towards children’s products,” which are broadly defined to include “any consumer product designed or intended primarily for children 12 years of age or younger.” Citera noted that the Age Determination Guidelines set out in the Act, “relate children’s ages to toy characteristics and play behavior,” however difficulties may arise in attempting to extrapolate the guidelines to other areas, such as jewelry and apparel.
Lead and phthalates are the two big issues involved in the regulation of children’s products, according to Citera, and the new legislation provides specific regulation of both.
The Act reduces the limit of lead allowed in surface coatings or paint to 90 ppm, effective in August 2009. The current federal standard is 600 ppm “so this is obviously a very dramatic decrease” Citera says, and it could go even lower. According to Citera, the lead limit will be reviewed every five years “and CPSC by regulation may revise downward the limit to require the lowest amount of lead that the CPSC determines is technologically feasible.”
Further, according to Citera, there are phased-in limits on the total lead content by weight for any part of any children’s products which are: 600 ppm, 180 days following the date of enactment which is Feb. 10, 2009; 300 ppm by Aug. 14, 2009 and 100 ppm three years following the date of enactment, Aug. 14, 2011. However, if the CPSC determines that 100 ppm is not technologically feasible for a product or a product category, it may establish a new standard lower than 300 ppm. The CPSC may also exclude a product or material from the prohibition of total lead “if the Commission determines that the product or material will neither result in the absorption of any lead into the human body nor have any other adverse impact on public health or safety,” according to Citera.
A point of concern is the apparent retroactive application of the lead ban, Citera said, noting that in a Sept. 12, 2008 advisory opinion, CPSC General Counsel Cheryl Falvey concluded that the 600 ppm lead limit applies to product in inventory or on store shelves as of the effective date of Feb. 10, 2009 and that efforts by industry to have that opinion reconsidered have been unsuccessful.
CPSC took a different position with respect to phthalates, a family of compounds that are designed to make plastic more flexible, Citera said. As of Feb. 10, 2009, it will be illegal for “any person to manufacture for sale, distribute in commerce, or import, any children’s toy or childcare article that contains three phthalates at levels higher than 0.1 percent.”
According to Citera, in both October and on Nov. 28, 2008, Falvey of the CPSC clarified that the phthalate ban does not apply to footwear or apparel and on Nov. 17, she issued an opinion that the phthalate ban would apply only to products manufactured on or after Feb. 10, 2009.