News Archive

Summary

This Report highlights U.S. and foreign developments in consumer product safety during December 2009.  In December, the CPSC identified members of the Chronic Hazard Advisory Panel that will study and assess phthalates and their alternatives.  The CPSC also issued an Interim Enforcement Policy on Component Testing and Certification of Children's Products and Other Consumer Products to the August 14, 2009 Lead Limits.  Finally, the Commission announced revisions to the Stay of Enforcement of Testing and Certification Requirements, including lifting the stay as to some products, most notably including a one-year extension of the stay for certification to the lead content limit in children's products.  The EPA has established a "Chemicals of Concerns" list which includes phthalates. 

At the state level, California announced that it will unveil in February proposed rules to reduce toxic chemicals in consumer products.  In Illinois, beginning this month retailers will be required to place warning labels on children's jewelry, child care articles, and toys with high levels of lead.  Internationally, in Canada the Senate adopted amendments to the consumer product safety legislation (C-6) setting the stage for further House consideration.  In Europe, the German Minister of Food, Agriculture and Consumer Protection continues to call for amendments to the EU Toy Directive.

Consumer Product Safety Commission News

CPSC Appoints Panel to Study Phthalates

• Chronic Hazard Advisory Panel:  On December 23, the CPSC released the names of seven members of the Chronic Hazard Advisory Panel ("CHAP") who will study and assess phthalates and phthalate substitutes.  Section 108 of the CPSIA requires the CPSC to appoint a CHAP to examine the potential effects on children's health of phthalates and phthalate alternatives as used in children's toys and child care articles.  The CHAP members are independent scientists chosen from a list created by the National Academy of Sciences. The list includes: Dr. Chris Gennings (Medical College of Virginia); Dr. Russell Hauser (Harvard School of Public Health); Dr. Holger Koch (Ruhu University of Bochum, Germany); Dr. Andreas Kortenkamp (University of London); Dr. Paul Lioy (Robert Wood Johnson Medical School); Dr. Dr. Philip Mirkes (Washington State University, Vancouver) and Dr. Bernard Schwetz (U.S. Dept. of HHS (retired)).  At a recent CPSC staff meeting with representatives of the Non-Phthalate Ester Plasticizers Panel ("NPEPP") of the American Chemistry Council ("ACC"), Michael Babich (Directorate for Health Sciences) stated that the first meeting of the CHAP will be early 2010 and the CHAP process will last two years. More Information: http://www.cpsc.gov/about/cpsia/chapselect.pdf

Enforcement Policies And Stays of Enforcement

• Interim Enforcement Policy on Component Testing and Certification of Children's Products and Other Consumer Products to the August 14, 2009 Lead Limits:  On December 28, the CPSC announced an interim enforcement policy regarding component testing and certification of children's products and other consumer products to the 90 parts per million (ppm) lead paint limit and to the 300 ppm lead content limit for children's products.  Those limits took effect on August 14, 2009.  Manufacturers and importers must, however, still comply with the lead paint and lead content limits.  Under the policy:

• Any children's product that bears paint and is manufactured after August 14, 2009, must be certified as in compliance with the 90 ppm lead paint limit.

• Paint and consumer products that are subject to the lead paint limits, but are not intended primarily for children age 12 and younger, (e.g., certain furniture) must be certified to the 90 ppm limit based on a test of each product or a reasonable testing program.  That requirement had been stayed as of January 30, 2009 and the stay will be lifted as of February 10, 2010.  A domestic manufacturer or importer may base its certification to the 90 ppm lead paint limit on its own testing of each paint used by any third-party test lab, on paint certifications from any person, or on a combination of those methods.

• Children's metal jewelry manufactured after August 14, 2009, must be certified as in compliance with the 300 ppm limit on lead in any accessible metal part.

• Children's products must be certified as in compliance with the 300 ppm lead content limit only if they are manufactured after February 10, 2011 and only as to accessible parts that are not subject to the Commission's determination regarding certain materials that never exceed the lead content limit.  Note, that children's products must still comply with the 300 ppm lead content limit.

• Until the Commission issues rules addressing when certification can be based on testing of paints before they are applied to a product, the Commission will permit certification of a Children's product to the 90 ppm lead paint limit if, for each paint used on the product, the domestic manufacturer or importer who certifies the product either has obtained a test report or holds a paint certificate (as further described by the policy).

• Until the Commission issues rules regarding when children's products may be certified to lead content limits based on testing of components separately from the final product, the Commission will permit certification of a children's product as being compliant with the 300 ppm lead content limit if, for each accessible component of the product, the domestic manufacturer or importer who certifies the product either has obtained a test report or holds a component certificate (as further described by the policy).

• In testing paints for compliance with lead limits, third-party test labs can test a combination of different paint samples so long as they follow procedures to ensure that no failure to comply with the lead limits will go undetected.

• Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/comppol.pdf.

• Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements:  On December 28, the Commission announced its decision to revise the terms of its stay of enforcement of certain testing and certification provisions of Section 102(a) of the CPSIA.  The stay was originally announced on February 9, 2009, and it was intended to be in effect until February 10, 2010.  The Notice announces changes to the stay, including when it will lift as to certain testing and certification requirements.

• Children's Products For Which the Stay of Enforcement Is Lifted and Third Party Testing Will Become Necessary:  The Commission lifted the stay of enforcement with regard to rules applicable to bicycle helmets, bunk beds, rattles, and dive sticks.  Children's products subject to the regulations for those products will require testing by a recognized third party lab and certification based on that testing.  The Commission did not lift the stay for bicycle regulations as applicable to all bicycles (children's and non-children's).  It will also keep the stay in effect until February 10, 2011 for total lead content in metal children's products and in non-metal children's products tested per CPSC-CH-E1001-08, Standard Operating Procedure for Determining Total Lead in Children's Metal Products, or CPSC-CH-E1002-08, Standard Operating Procedure for Determining Total Lead in Non-Metal Children's Products.

• Products For Which the Stay of Enforcement Is Lifted and Third Party Testing Will Become Necessary: The Commission lifted the stay with regard to several rules applicable to non-children's products.  Examples include the ban on lead-in-paint and on furniture and the standard for refrigerator door latches.  Products subject to those statutes and regulations will require testing based upon a reasonable testing program, and manufacturers will need to issue a certificate of general conformity to the statutes or regulations ("General Conformity Certificate" or "GCC") beginning on February 10, 2010 for all products manufactured after that date.

• Consumer Products or Children's Products Where the Commission is Continuing the Stay of Enforcement Until Further Notice:  The Commission will continue the stay of enforcement for certain consumer and children's products until further notice.  These products must still comply with applicable regulations, including testing requirements.  Examples include carpets and rugs, wearing apparel, caps and toy guns, phthalates, ASTM F963, and electronic toys.

• Products With Pre-Existing Requirements:  Manufacturers, importers, and private labelers of youth sized ATVs and mattresses primarily intended for children age 12 or younger must modify their certificates to include all of the information required by section 14(g) of the CPSA.  These products are also subject to the third party testing and certification requirements in section 14(a)(2) of the CPSA.  Similar rules apply to other products with pre-existing requirements such as matchbooks, lawnmowers, and swimming pool slides.

• Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/stay.pdf.

Final Rules

• Registration Requirements For Durable Infant or Toddler Products:  On December 16, the Commission approved (5-0) a new rule requiring manufacturers of durable infant or toddler products to establish and maintain a registration card program.  Under the rule, each manufacturer of a durable infant or toddler product must: 1) provide a postage-paid consumer registration form with each product; 2) keep records of consumers who register their product with the manufacturer; and 3) permanently place the manufacturer's name and contact information, model name and number, and the date of manufacture on each product.  The rule has specific requirements for the text and format of registration forms.  It also sets forth requirements for internet registration.  The rule applies to 18 product categories, including, for example, cribs, toddler beds, high chairs, booster chairs, bath seats, and changing tables.  Federal Register Notice:  http://www.cpsc.gov/businfo/frnotices/fr10/durable.pdf.

Public Meetings And Hearings

Upcoming Meetings

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

• Public Workshop: Establishment of A Public Consumer Product Safety Incident Database:  The Commission will host a two-day, staff-conducted public workshop on January 11 and 12, 2010 to receive views from all interested parties on establishing a public consumer product safety incident database.  The workshop will consist of five meetings on separate aspects of the database.  Those areas are: data analysis and reporting, reports of harm, manufacturer notification and response, additional database content, and materially inaccurate information.  The Notice lists specific questions for discussion under each topic.  Requests to make oral presentations and the written text of those presentations were due by 5pm on January 4, 2010.  Those interested in attending the workshop in person must register online at www.cpsc.gov/meetingsignup.html.  Written comments are due no later than 5pm on January 29, 2010.  Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/jandbworkshop.pdf.

Recalls

• In December there were 49 CPSC-administered recalls.  The abnormally high number of recalls is due to the numerous recalls of roman shades and roll up blinds by multiple firms.  Millions of units of window coverings were recalled because they present a serious risk of strangulation to young children.  Repair kits are available.  December Recalls: http://www.cpsc.gov/cpscpub/prerel/prereldec09.html.

Civil Penalties

• RC2 Corporation agreed to pay a $1.25 million civil penalty for allegedly violating the federal lead paint ban.  CPSC staff alleged that RC2 Corporation and one of its wholly-owned subsidiaries imported and sold various Thomas & Friends wooden railway toys with paints or other surface coatings that contained lead levels above the legal limits.  Press Release:  http://www.cpsc.gov/cpscpub/prerel/prhtml10/10094.html.

• Excelligence Learning Corporation agreed to pay a $25,000 civil penalty for allegedly violating the federal lead paint ban.  The company allegedly imported over 33,000 units of children's products that contained lead paint above the 0.06 percent legal limit between August 2000 and August 2007.  The products were recalled in late 2007 and early 2008.  Press Release:  http://www.cpsc.gov/cpscpub/prerel/prhtml10/10055.html.

Other News

• Petition on Lead Paint Testing:  On July 9, Intertek Consumer Goods NA, Inc. (Intertek) and The American Apparel & Footwear Association (AAFA) filed a Petition to Amend and Interpret 16 C.F.R. § 1303 and CPSIA § 102(a) to Explicitly Authorize "Spray Sampling," "Multiple Stamping," and "Finished Component Part" Testing As Acceptable Procedures Under the CPSA and CPSIA.  The petition, which Mintz Levin drafted and filed, requests that the CPSC expressly approve certain lab testing procedures as methods for determining the presence of lead paint in toys and other children's products.  Neither the Commission or CPSC staff have approved or otherwise affirmatively recognized the acceptability of these three testing procedures.  In contrast, CPSC staff has interpreted Section 102 of the CPSIA to mean that only a complete and fully assembled or "final" product sample may be submitted to labs for testing to product safety standards covered by that section.  Intertek and the AAFA assert in their petition that these procedures are fully permissible under Section 102 of the CPSIA based on the intent and language of the section, and are sound policy considerations.  In short, these methods, argue Intertek and the AAFA, will save manufacturers millions of dollars in testing without any adverse impact on testing reliability.  In December, the CPSC Office of the General Counsel docketed the Intertek-AAFA petition as a petition for rulemaking under the Consumer Product Safety Act (CPSA) (Petition CPIO-l).  On December 11, the Commission voted 5-0 to approve the Federal Register notice requesting public comment on the petition.  Thus, the Commission will formally consider the petition after receiving public comments, which are due on February 26, 2010.

• Petition: http://www.cpsc.gov/library/foia/foia10/petition/intertekapfa.pdf.

• Federal Register Notice: http://www.cpsc.gov/businfo/frnotices/fr10/spray.pdf

• Third-Party Testing And Firewalled Laboratories Questions and Answers:  Per the CPSIA, testing under certain CPSA standards must be conducted by third-party conformity assessment bodies and, in some cases, may be conducted by laboratories that are owned, managed, or controlled by a manufacturer or private labeler if the lab is accredited by the CPSC and puts extra safeguards in place ("firewalled labs").  In December, the CPSC posted a compilation of questions and answers regarding the requirements and approval process for certifying third-party testing and firewalled laboratories.  Questions and Answers:  http://www.cpsc.gov/about/cpsia/testlabqa.pdf.

Other Federal News

Legislation

• Chairman Waxman (D-CA) Attempts to Attach CPSIA Amendment to Defense Appropriations Bill:  House Energy and Commerce Chairman, Henry Waxman (D-CA), attempted unsuccessfully in mid-December to attach a narrow CPSIA "technical corrections" amendment to the 2010 Defense Appropriations Bill.  The amendment sought to provide the CPSC with some added flexibility to grant exemptions from the Section 101(a) lead content ban for children's products containing "functional lead," i.e., if the agency determines that lead is required for functional purpose.  If an exclusion were to be granted by the CPSC, the product would be required to bear a warning label indicating there is accessible lead and to provide directions for safe use.  The Waxman amendment also proposed to exempt "ordinary books" from the lead limits.  Ordinary books do not include those with inherent play value or those that are toys.  The amendment did not succeed as Senate and House Republicans, notably, Sen. Kay Bailey Hutchison (R-TX), Ranking Republican on the Senate Commerce Committee, protested that members were not afforded an opportunity to consider and contribute to the CPSIA amendment.  A similar effort is likely in January.

State News

• California: The California Department of Toxic Substances Control is scheduled to unveil proposed rules to reduce toxic chemicals in consumer products in February 2010.  California A.B. 1879, enacted in 2008, requires the department to adopt final regulations that identify and prioritize "chemicals of concern" in consumer products by January 1, 2011.  More Information: http://www.dtsc.ca.gov/PollutionPrevention/GreenChemistryInitiative/index.cfm.

• Illinois: As of January 1, 2010, retailers in Illinois are required to place warning labels on children's jewelry, child care articles with more than 40 ppm lead content and toys with more than 40 ppm of lead in pant.  The Illinois Lead Poisoning Prevention Act further requires that the labels be on the product or on the product's immediate container and must state: "WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD."  The Illinois Attorney General has maintained that the CPSIA does not preempt the Illinois law.  Illinois Lead Poisoning Prevention Act:  http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1523&ChapAct=410%20ILCS%2045/&ChapterID=35&ChapterName=PUBLIC+HEALTH&ActName=Lead+Poisoning+Prevention+Act.

International Consumer Product Safety News

Canada

Consumer Product Safety Legislation (Bill C-6)

• Status of the Bill:  In June 2009, the CCPSA legislation (also known as C-6) unanimously passed the House.  In early December, the Senate's Social Affairs, Science and Technology Committee reported the bill out of committee to the entire Senate with various amendments related to due process and civil liberty concerns, reporting requirements for defective products, voluntary recalls and decision making responsibility at the Ministry of Health.  On December 15, 2009, at the third reading of the legislation, the entire Senate, led by a bloc of liberal senators, narrowly adopted two sets of amendments to the bill, thereby sending the bill back to the House of Commons for its consideration of the amended bill.  It remains to be seen whether the Senate version can be reconciled with the House version. The House of Commons is currently in recess until January 25, 2010.  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 (December 2009):  29 items reported, including 10 children's products.  Report: http://cpsr-rspc.hc-sc.gc.ca/PR-RP/home-accueil-eng.jsp

• 2010 WHO Meeting on BPA:  Canada announced that it will host the World Health Organization's scientific experts meeting on bisphenol-A in October 2010.  Press release: http://www.hc-sc.gc.ca/ahc-asc/media/nr-cp/_2009/2009_198-eng.php

China

AQSIQ

The General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ) is a ministerial administrative organ directly under the State Council of the People's Republic of China in charge of national quality, metrology, entry-exit commodity inspection, entry-exit health quarantine, entry-exit animal and plant quarantine, import-export food safety, certification and accreditation, standardization, and administrative law-enforcement.

• PR Campaign:  China has launched a global add campaign to improve the image of products made in China.  Press release: http://www.mnn.com/earth-matters/politics/stories/made-in-china-gets-a-makeover

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 (December 2009):  141 consumer products reported, including a total of 64 toys, children's clothing, and other child care articles (3 of which were recalled for excessive lead content).  Report: http://ec.europa.eu/consumers/dyna/rapex/rapex_archives_en.cfm

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 (December 2009):  141 consumer products reported, including a total of 64 toys, children's clothing, and other child care articles (3 of which were recalled for excessive lead content).  Report: http://ec.europa.eu/consumers/dyna/rapex/rapex_archives_en.cfm

Germany

• Amendments to EU Toy Directive:  The German Minister of Food, Agriculture and Consumer Protection (BMELV) is pressing for amendments to be made to the EU Toy Directive before it becomes applicable throughout Europe in 2011.  The Minister has expressed particular concerns regarding the need for lower limits on lead and cadmium in toys.  Press release:  http://www.bmelv.de/cln_173/SharedDocs/Pressemitteilungen/EN/2009/293-AI-EU-ToyDirective.html

Phthalates

• EPA Regulation:  The Environmental Protection Agency announced that it is establishing a "Chemicals of Concern" list that may lead to regulation of the identified chemicals.  Phthalates are among the four chemicals on the initial list.  Press release: http://yosemite.epa.gov/opa/admpress.nsf/0/2852c60dc0f65c688525769c0068b219?OpenDocument

Phthalates

• EPA Regulation:  The Environmental Protection Agency announced that it is establishing a "Chemicals of Concern" list that may lead to regulation of the identified chemicals.  Phthalates are among the four chemicals on the initial list.  Press release: http://yosemite.epa.gov/opa/admpress.nsf/0/2852c60dc0f65c688525769c0068b219?OpenDocument