MINTZ LEVIN PRODUCT SAFETY REPORT
November 4, 2009

Summary
This Report highlights U.S. and foreign developments in consumer product safety during October 2009. The CPSC announced that it will host a public hearing on November 10 to discuss the required establishment of a public consumer product safety incident database. 

The Commission also released a Statement of Policy to provide guidance on the testing and certification of children's products for compliance with the lead content limits under CPSIA.  In fiscal year 2009, 39 companies paid a record $9.8 million in fines to the CPSC. Mattel Inc. settled consumer lawsuits relating to the recall in 2007 of toys containing high levels of lead.  Legislation has been introduced to require household cleaning products to have labels that list all ingredients. 

At the local level, the Suffolk County, New York legislature passed a ban on drop-side cribs.  In Canada, the Senate held hearings on the comprehensive new product safety legislation (Bill C-6).  Chairman Tenenbaum and her Chinese counterpart agreed to work together on product safety issues at the Consumer Product Safety Summit. 

In Europe, the EU General Product Safety Committee voted to move forward with safety standards for children's sleep products.  The investigation into problems related to Chinese drywall in homes also continues.  A U.S. House Resolution was introduced to urge mortgage holders to allow temporary forbearance without penalty for homes damaged by Chinese drywall.

Consumer Product Safety Commission News
Rules, Notices and Comments Sought
-        Third Party Testing For Certain Children's Products; Notice of Requirements for Accreditation of Third party Conformity Assessment Bodies to Assess Conformity with the Limits on Total Lead in Children's Products:  On October 29, the CPSC issued in the Federal Register a notice of requirements that provides the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing per the limits on total lead in children's products under the CPSIA. The requirements were effective upon publication in the Federal Register. 

Comments in response to the notice must be submitted by November 30.  The notice provides the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing per CPSC-CH-E1001-08, Standard Operating Procedure for Determining Total Lead in Children's Metal Products (Including Children's Metal Jewelry), issued December 4, 2008 and CPSC-CH-E1002-08, Standard Operating Procedure for Determining Total Lead in Non-Metal Children's Products, issued February 1, 2009. 

Criteria for other children's product safety rules will be identified in the future.  The Commission will maintain a list of third party conformity assessment bodies whose accreditations it has accepted and the scope of each accreditation.  It will also accept registration for accreditation online. 

· Ballot Vote Sheet: http://www.cpsc.gov/library/foia/foia10/brief/totallead.pdf.

· Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/totallead.pdf. 

· The Commission also sought comments on October 29 on the form to be used to identify third party conformity assessment bodies that meet the requirements to test for compliance to specified children's product safety rules. Comments are due no later than December 28, 2009.  Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/registration.html

Statements Of Policy
- Testing And Certification Of Lead Content In Children's Products:  The CPSC issued a Statement of Policy to provide guidance on the testing and certification of children's products for compliance with the lead content limits under CPSIA. The Statement of Policy provides some guidance on testing and certification of component parts for lead content, including two detailed examples.  Notably, the Statement of Policy clarifies that "[s]ome retailers may want manufacturers and importers to test and certify their products, but those tests and certificates are not required by the Commission for the materials or products on the list" of products exempt from the lead content limit. In addition, the Statement of Policy for the first time explicitly allowed component testing in lieu of final product testing for lead in substrate, at least to some extent, e.g., where "exempted" natural materials are in a product, only the not-exempted components/materials need be tested.  However, this general allowance was limited only to lead in substrate.    Statement of Policy: http://www.cpsc.gov/about/cpsia/leadpolicy.pdf.

Public Meetings And Hearings
- October 14 Commission Briefing/Public Meeting:  On October 14 there was a Commission Briefing/Public Meeting.  The topics discussed were:

· Lab Accreditation Requirements for Lead:  Commissioner Northup raised concerns about the CPSC accreditation of proprietary ("firewalled") labs, advocating that they lose their accreditation if they pass product that turns out to violate CPSC standards.  Commissioner Nord, on the other hand, complained that there did not appear to be allowance for the retroactive acceptance of products tested and passed by proprietary labs prior to their receiving CPSC accreditation to test that specific, mandatory standard.  Commissioner Adler suggested that CPSC accredited labs should have to prove not only that they make appropriate training and informational materials available to their staff, but also that the staff actually undergo that training and read the appropriate materials.

· Brass Lead Exclusions Petition:  Commissioner Adler and Commissioner Nord voiced frustration about the inflexibility of the statute and the fact that common sense should be infused into interpretations of the statute.  See further discussion of the Petition below.

· Lead Determination Guidelines:  see discussion of this Statement of Policy above.

·  Recreational Off highway Vehicles Off Highway Vehicles ANPR: see discussion above; and

· Toy Safety Certification Program (TCSP), Toy Industry Association, Consumers Union, and Consumer Federation of America:  the presenters announced that they are developing a specific toy manufacturing related standard and requirements document to add to ISO 9001 accreditation for TSCP approved toy factories.  The Consumer Federation of America stated that the program has good aspects, but also has some serious deficiencies.  Chairman Tennenbaum and Commissioners Nord and Adler generally praised the program, but Commissioner Northup questioned the program's burden on small toy manufacturers.

· Webcast: http://www.cpsc.gov/webcast/index.html. 

Upcoming Meetings
The CPSC has reinstituted its practice of regular commission hearings-check the master calendar regularly for updates: http://www.cpsc.gov/calendarmast.html. Upcoming Public Meetings/Hearings include:

- Testing and Certification:
On November 9, the Commission will conduct a public hearing to discuss a guidance document on testing and certification.  The Commission Briefing/Meeting will take place from 1-3pm in Hearing Room 420.

-  Public Database:
On November 10, the Commission will conduct a public hearing to receive views from all interested parties on Section 212 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Establishment of a Public Consumer Product Safety Incident Database.  Participation by members of the public is invited. Oral presentations will become part of the public record. The hearing will begin at 9:00 a.m., Bethesda Towers, Hearing Room 420.  Requests to make oral presentations were due November 3, 2009.  Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/dbhearing.html.

- Testing, Certification, and Labeling:
On October 29, the General Counsel issued a draft Federal Register notice and ballot vote sheet announcing a two day workshop to be held on December 10-11 to discuss "issues relating to testing, certification, and labeling certain consumer products pursuant to section 14 of the Consumer Product Safety Act." The CPSA requires the Commission to initiate a program by which a manufacturer or private labeler may label a consumer product as complying with certain certification requirements.  Under the statute, the Commission must establish protocols and standards for (a) ensuring that a children's product tested for compliance with a children's product safety rule is subject to testing periodically and when there has been a material change in the product's design or manufacturing process, including the sourcing of component parts; (b) testing of random samples; (c) verifying that a children's product tested by a conformity assessment body complies with applicable children's product safety rules; and (d) safeguarding against the exercise of undue influence on a third party conformity assessment body by a manufacturer or private labeler.  The notice acknowledges that it is difficult to devise a regulatory approach that meets all of those goals, and that is why it seeks to conduct the workshop.  The ballot vote is due on November 5.  Ballot Vote Sheet: http://www.cpsc.gov/library/foia/foia10/brief/producttesting.pdf.

Requests For Exclusion
- Brass and Mechanical Components:
By live vote, the Commission today denied the petition by Learning Curve Brands, Inc. that certain brass and other mechanical components of its replica and toy die-cast items be exempted from the lead limits of CPSIA § 101.  The specific component identified in the request was the brass collar that secures each wheel of the product (a toy tractor) to the axles.  The staff recommended that the Commission deny the request because some contact with the lead-containing component of the toy could  occur (per a wipe test), and that contact could result in lead being ingested or absorbed.  Ballot Vote Sheet: http://www.cpsc.gov/library/foia/foia10/brief/learningcurve.pdf.

Recalls
- In October there were 28 CPSC-administered recalls. Three of them were children's products (burn hazard, choking hazard, and violation of lead paint and phthalate limits). Note that the recall for violation of the phthalates limits of Section 108 of the CPSIA (of a soft plastic toy inflatable bat) was the first recall for violation of that Section).  October Recalls: http://www.cpsc.gov/cpscpub/prerel/prereloct09.html.

Civil Penalties
- FY 2009 CPSC Penalties - $9.8 Million
During fiscal year 2009 (which ended September 30), 39 companies paid fines totaling more than $9.8 million for violations that included drawstrings on children's clothing and lead paint in toys.

- $600,000 Civil Penalty for Violation of Lead Paint Ban: On October 1, the CPSC announced that Target Corp. agreed to pay a civil penalty of $600,000 for violation of lead paint limits in toys. The penalty resolves the Commission's allegations that from May 2006 to August 2007, Target knowingly imported and sold toys with paint or surface coatings that exceeded the lead limits.  Chairman Tenenbaum stated that "[t]his penalty should remind importers and retailers that they have always had the same obligation to meet the strict lead limits as the manufacturers."  Press release: http://www.cpsc.gov/cpscpub/prerel/prhtml10/10001.html

- Mattel Settlement:
Mattel Inc. has agreed to settle a class action consumer lawsuit relating to the recall in 2007 of toys containing high levels of lead. The settlement could total more than $50 million.  News article: http://www.google.com/hostednews/ap/article/ALeqM5h2VyaKG1Zeaj8bnrH09Y692wJU-QD9BAVCSG3

Other News
- Responses to the Government Accountability Office (GAO) Reports:

· In August 2009, the GAO published a report, Consumer Product Safety Commission: Better Data Collection and Assessment of Consumer Information Efforts Could Help Protect Minority Children.  GAO made two recommendations in that report for CPSC action: 1) enhance data collection to better understand the relative risk of product-related injury among minority and nonminority children; 2) further develop safety messages targed at racial and ethnic groups at highest risk of injury from certain products.  In response, the CPSC published in October New Actions To Reduce Deaths And Injuries To Minority Children.  The report outlines the activities the Commission is taking to address the GAO's recommendations.  The CPSC states in the report that it intends to integrate information collection through the public database it is required to develop under CPSIA (to post consumer incident reports).  The CPSC also highlighted its new social networking initiative as a way to increase its outreach efforts.  CPSC's Report: http://www.cpsc.gov/about/cpsia/GAOminorities.pdf. 

·  In August 2009, GAO also issued a report entitled Consumer Safety: Better Information and Planning Would Strengthen CPSC's Oversight of Imported Products.  GAO made three recommendations for CPSC action: 1) ensure expeditious implementation of key CPSIA provisions; 2) strengthen CPSC's ability to target shipments of unsafe consumer products; and 3) develop a long-term plan for ensuring the safety of consumer products entering the United States, including long-term plans for international engagement.  The CPSC published in October New Actions to Strengthen Oversight of Imported Products in response to GAO's report.  In the report the staff noted that it will likely propose mandatory generic defect rules for hairdryers and drawstrings within the next six months under CPSA § 15J.  The Commission also highlighted its efforts to coordinate with Customs and Border Protection.  Finally, the CPSC noted that it is working to revise its strategic plan in 2010.  CPSC's Report: http://www.cpsc.gov/about/cpsia/GAOresponse.pdf. 

- Commissioner Nord Launches Blog:
Commissioner Nord launched a blog called Conversations with Consumers on October 31. The first entry discussed component testing, periodic testing, lead exclusions, and Chinese drywall.  Blog: http://nancynord.wordpress.com/

Other Federal News
Legislation
- Household Product Labeling Act.  Senator Franken introduced legislation, to require household cleaning products, such as furniture polish and laundry detergent, to carry labels that list all of their ingredients.  The current law requires that product labels only list immediately hazardous ingredients.  S. 1697: http://thomas.loc.gov/cgi-bin/query/z?c111:S.1697

State News
- California
In early October, Governor Schwarzenegger vetoed California Assembly Bill 147, known as the "California RoHS Bill."  The Bill would have required producers of electronic devices to prepare and be ready to produce technical documentation or other information demonstrating that electronic equipment is not prohibited from sale by the RoHS directive.

- New York
On October 13, the Suffolk County Legislature voted to ban the sale of drop-side cribs.  If the municipality signs the law, it will be the first such restriction in the United States.  News article:   http://blogs.consumerreports.org/safety/2009/10/new-yorks-suffolk-county-moves-to-ban-dropside-cribs.html

International Consumer Product Safety News
Canada
Consumer Product Safety Legislation (Bill C-6)
- Status of the Bill:  In June 2009, the Canadian Consumer Product Safety Act (CCPSA) unanimously passed in the House.  The bill is currently pending in the Senate and has been referred to the Social Affairs, Science and Technology Committee.  The Senate Committee held hearings on the legislation on October 21, 28, and 29.  On behalf of a Canadian Industry Coalition, Mintz Levin's Chuck Samuels answered questions before the Committee on the legislation.  Chuck's comments to the Senators focused on due process rights related to recall orders and the confidentiality and disclosure of information provided to the Canadian government in the event of an incident.  The bill is expected to pass the Senate and receive Royal assent (enactment into law) in the coming weeks.  It would then come into force in early 2010.   Chuck also recently moderated panels on the C-6 legislation at the International Consumer Product Health and Safety Organization (ICPHSO) and I.E. Canada conferences in Toronto, Canada. Current Status of C-6: http://www2.parl.gc.ca/Sites/LOP/LEGISINFO/index.asp?Language=E&Chamber=N&StartList=A&EndList=Z&Session=22&Type=0&Scope=I&query=5655&List=stat

Health Canada
- Recall Notices (October 2009)
20 items reported, including 4 children's products.

China
AQSIQ (The General Administration of Quality Supervision, Inspection and Quarantine)
CPSC-AQSIQ Consumer Product Safety Summit.  Chairman Tenenbaum met with her counterpart from AQSIQ at the Summit held in Beijing, China to discuss lead in children's products, toys, cigarette lighters, fireworks, electrical products, and all-terrain vehicles.  Chairman Tenenbaum emphasized the following points at the Summit: i) that there is no inherent conflict between trade and safety; and ii) that the best way to protect families is to build safety into products during design and manufacturing. As a result of the Summit, the Chinese government agreed to hold Chinese suppliers responsible for implementing best practices in manufacturing.  CPSC stated that U.S. importers will also be held accountable if their products are hazardous or if they violate U.S. products safety requirements.  Chairman Tenenbaum's Statement: http://www.cpsc.gov/pr/tenenbaum102809.html

Europe
RAPEX
RAPEX is the EU rapid alert system for all "dangerous" consumer products, with the exception of food, pharmaceutical and medical devices.  Each week reports are published with an overview of the dangerous products reported by the national authorities. The weekly overview provides information on the product, the possible dangers, and the measures that were taken by the reporting country (including "voluntary recall," "mandatory recall, "withdrawal from market," "voluntary corrective action," and "market ban.").

- Report (October 2009):  138 consumer products reported, including a total of 75 toys, children's clothing, and other child care articles (one of which was recalled for excessive lead content).  Report: http://ec.europa.eu/consumers/dyna/rapex/rapex_archives_en.cfm

DG SANCO
The Directorate General for Health and Consumers is primarily responsible for EU laws on the safety of consumer products and food.

- The EU General Product Safety Committee voted on October 21 to more forward on standards for sleep products for children.  Final requirements will likely not be in place for two years.  The proposed standards would include safety requirements for crib mattresses, crib bumpers, children's duvets, baby sleeping bags, and suspended baby beds.  Press release: http://ec.europa.eu/consumers/citizen/my_safety/docs/IP_sleeping_prod_en.pdf

Vietnam
- The Vietnam Textile and Apparel Association (Vitas) is attempting to address concerns regarding product testing requirements of certain importing countries, including the U.S. under CPSIA.  Vietnam does not currently have a laboratory eligible to conduct CPSIA tests.  News article:  http://www.bernama.com/bernama/v5/newsworld.php?id=446896

Other News
Chinese Drywall
- CPSC Drywall Status Update:  The CPSC issued an October update on the status of the investigation.  To date, the CPSC has received nearly 1,900 incident reports relating to drywall from 30 states and the District of Columbia since December 2008.  The focus of the investigation has been on pursuing the scientific basis of the problem and on tracing the chain of commerce for the defective product.  CPSC's Drywall Information Center: http://www.cpsc.gov/info/drywall/index.html

- CPSC-AQSIQ Consumer Product Safety Summit.  At the US-China Summit, Chairman Tenenbaum asked China to help pay for the damage to U.S. homes resulting from Chinese-made drywall.  News article: http://online.wsj.com/article/SB125564911387588795.html#

- Legislation.  Representative Nye introduced a resolution in the House to urge banks and mortgage holders to work with families affected by contaminated drywall and to allow temporary forbearance without penalty on payments on their home mortgages.  H.Con.Res. 197: http://thomas.loc.gov/cgi-bin/query/z?c111:H.CON.RES.197:

- CPSC Meeting.  On October 8, homeowners met with CPSC representatives to discuss concerns relating to Chinese drywall.  News article: http://www.wvec.com/news/topstories/stories/wvec_local_100709_drywall_cpsc_dc_.1f3e52efa.html

International Consumer Product Safety Caucus
- ICPSC recently held a conference on Product Traceability and Tracking Labels in Stockholm, Sweden.  74 delegates from 20 countries attended the first global regulators conference focusing on product traceability and tracking labels.  Members of ICPSC include CPSC and representatives from several other countries in Asia, Australasia, North and South America and Europe.  Information on conference:   http://www.icpsc.org/Stockholm_Conference.html