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The Product Safety Report©

August, 2008
Law Offices of David H. Baker LLC 
www.dhbakerlaw.com 
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Highlights of New Product Safety Law

Introduction:
Later this month, President Bush is expected to sign into law the Consumer Product Safety Improvement Act of 2008.  The new law is the largest, most encompassing and most significant amendment to the Consumer Product Safety Act and the other Acts administered by the CPSC, since the agency’s formation in 1973.  The new law is 161 pages in length, includes forty one sections (many with multiple subparts) and runs the gamut from children’s product safety to Pool and Spa Safety Act technical amendments.  In this report, I will highlight some of the key changes to the law.  I would, of course, be pleased to discuss with you any of these issues in greater detail, or any of the other provisions in the new law.

Section 101: Lead

Total Lead Standard
As promised by Congressional leaders, the new law contains a total lead standard.  Effective six months from enactmentall children’s products (as defined in Section 245, see below) must contain no more than 600 parts per million (PPM) total lead content by weight.  Effective one year from enactment, the standard drops to 300 PPM.  Then, dependent upon a CPSC analysis, effective three years from enactment, the standard may drop to 100 PPM.  If the CPSC determines that 100 PPM is not technologically feasible, it must do so through a notice and comment type procedure, including a hearing.  In my judgment, the CPSC is very likely to conclude that 100 PPM is not technologically feasible.  However, the 300 PPM standard is statutory, so industry needs to learn to live with it (and fast).

Definition of Children’s Product
Children’s product is defined in Section 245, Technical and Conforming Amendments, for the first time in the CPSC’s history, as follows:

The term ‘children’s product’ means a consumer product designed or intended primarily for children 12 years of age or younger.

In determining whether a consumer product is primarily intended for a child 12 years of age or younger, the following factors shall be considered:

  • A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
  • Whether the product is represented in its packaging, display, promotion or advertising as appropriate for use by children 12 years of age or younger.
  • Whether the product is commonly recognized as being intended for use by a child 12 years of age or younger.
  • The Age Determination Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines.

Section 245(a).

Thus, if your product is labeled for, marketed to, or used by, children 12 or under, you are selling a children’s product, for CPSC purposes.  This definition also comes into play in other applications under the Consumer Product Safety Act, including tracking labels.

Exclusion, Exception and Inaccessibility
There are procedures for excluding certain products or materials.  Again, such an analysis must be done with notice and a hearing.  There are also exceptions for certain component parts that are not accessible through normal and reasonably foreseeable use and abuse of the product.

The CPSC is also directed to issue a rule within one year (one of about twenty rulemakings the CPSC is directed to undertake by Congress) as to what products or components are considered inaccessible.

Congress also made it clear that this lead statutory provision supercedes anything in ASTM F963.  So if you are having a product tested under ASTM F963, which includes lead and other heavy metal testing, the product must also meet this new lead provision.

Ban on Lead in Surface Coatings Standard
The new law also includes a tightening of the existing lead in surface coatings ban.  Under the new law, effective one year from enactment, the 600 PPM standard in 16 CFR Part 1303.1, Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint, drops to 90 PPM. In addition, the CPSC is directed to review this standard at least every five years and by regulation revise downward the limit to require the lowest amount of lead that the Commission determines is technologically feasible to achieve.

X-Ray Fluorescence Testing
The CPSC is specifically directed to use X-Ray Fluorescent (“XRF”) technology to measure lead in paint or other surface coatings; where the total paint weight or surface coating is less than or equal to l0 mg or covers less than or equal to 1 cm2.  However, the CPSC is also directed to complete a study within one year of “the effectiveness, precision, and reliability of x-ray fluorescence technology” and to consider other alternative methods of measuring lead in paint.  If the CPSC concludes that it is reasonable to use XRF equipment (or other alternatives), it may promulgate regulations governing the use of such equipment.

Preemption (Lead)
Finally, arguably the most important provision, and not added until the last minute, “any ban imposed by subsection (a), or rule promulgated under subsection (a) or (b) of this section shall be considered a regulation of the Commission promulgated under or for the enforcement of Section 2(q) of the Federal Hazardous Substances Act.”  This language means that the new total lead standard is a preemptive regulation under the Federal Hazardous Substances Act.  In my mind, this preemption is quite clear.  However, I have already heard some debate that the preemption provision only applies to the total lead standard (promulgated under subsection a and b), as opposed to the surface coatings standard (under subsection f).  This should be a very interesting discussion as we go down the road.  Historically, the surface coating regulation/ban had been treated as preemptive.  The specific exclusion of a reference to subsection (f) will make for some interesting court decisions, if this issue is litigated.

Section 102:  Mandatory Third Party Testing for Consumer Products

Mandatory Third Party Testing for Consumer Products Subject to Act
Another important provision is Section 102 which states that “…every manufacturer of a product which is subject to a consumer product safety rule under this Act or similar rule, ban, standard, or regulation under any other Act enforced by the Commission…” shall certify based upon a testing program, that such program complies with all rules, ban, standards, etc.  This provision covers a lot of ground.  For example, bicycles, lawn mowers, lighters and pencils are also subject to such standards.  Query:  are all of these industries required to certify?  I am sure that many are not even aware of this provision.  This new mandatory certification requirement goes into effect 90 days after enactment, so manufacturers will have to act quickly.

Certification for Certain Children’s Products
If the product is a children’s product (e.g., intended for children 12 or under), there are additional obligations including providing samples to a third party testing organization and ultimately issuing a certificate that the children’s product complies with the rules and regulations administered by the CPSC.  This latter requirement will apply “to any children’s product manufactured more than 90 days after the Commission has established and published notice of the requirements for accreditation of the third party conformity assessment bodies…” Section 102(a)(3).  Congress gives the Commission 30 days after enactment of this new law to publish requirements for accreditation for lead paint, 90 days after enactment to publish requirements for small parts and 10 months after enactment for all other children’s products.

Section 105: Labeling Requirement for Advertising of Toys and Games
Retailers, manufacturers, private labelers, etc. that advertise toys and games, must set forth all applicable FHSA warnings in their advertisements, including on websites and in catalogues.  The CPSC has been concerned for years that on line customers do not see the warnings on products until they actually receive the product in the mail.  Retailers are required to exercise due diligence in garnering this information from their suppliers.

Section 108:  Phthalates

DEHP, DBP and BBP
Although there was not much substantive scientific support for a federal limit on phthalates, the Congress followed the lead of Europe, Canada and many states and established a limit on phthalates in certain children products. Under the new law, it will be unlawful to sell children’s toy or childcare articles that contain more than 0.1%  di(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP)  or benzyl butyl phthalate (BBP).  Senators Kerry, Boxer and Klobuchar were very insistent on this issue.  The new federal limit goes into effect six months after enactment.

DINP, DIDP and DnOP
Congress also imposed so-called interim limits of 0.1% on “any children’s toy that can be placed in a child’s mouth, or child care article, that contains concentrations of more than 0.1% of diisononyl phthalate (“DINP”), diisodecyl phthalate (“DIDP”) or di-n-octyl phthalate (“DnOP”)”, effective six months after enactment.  I gather that there was less scientific support for setting a federal limit for these chemicals, hence, the interim nature of the relief.

However, apparently recognizing the questionable nature of going forward with this relief, Congress has directed the CPSC to appoint a Chronic Hazard Advisory Panel (“CHAP”) “…to study the effects on children’s health of all phthalates and phthalate alternatives as used in children’s toys and child care articles.”  Section 108(b)(2).

The ultimate result of the CHAP is to be a report to the full Commission.  Based upon this report, the Commission is to issue a rule to “…determine, based on such report, whether to continue in effect the prohibition under paragraph (1)…”  Section 108(b)(3)(A).  So, depending upon the results of the CHAP, the interim standard for DINP, DIDP, DnOP, may stand or fall.

Preemption (Phthalates)
Under Section 108(d), these new federal phthalate standards are specifically considered to be consumer product safety standards under the Consumer Product Safety Act, and hence preemptive of state requirements relating to the same risk of injury under Section 26 of the Consumer Product Safety Act.  However, Congress also specifically states that these new standards shall not be construed to “…affect any State requirement with respect to any phthalate alternative not specifically regulated in a consumer product safety standard under the Consumer Product Safety Act.”  Id.  So to the extent that a state regulates something other than the phthalates listed above, such as BPA, the state law will not be preempted and will have the force and effect of law.

Section 211: Public Disclosure of Information

Changes to Section 6(b) Notice and Comment
If you regularly comment on notifications from the CPSC on incidents with your products under Section 6(b), the time frame for commenting has been tightened up from 30 days to 15 days.   Similarly, the Commission may file an expedited review of a decision not to disclose a document or documents.

Section 213:  Consumer Product Database
The Commission is directed to develop a publicly available consumer product database within two years of enactment of the new legislation.  Section 213(a)(3).  The database shall include:

  • reports of harm relating to the use of consumer products received by the Commission from consumers, government, health care professionals, child service providers, and public safety entities.
  • information from corrective action programs.
  • comments received on the incidents.

There is limited opportunity for manufacturers to comment on the inclusion of an incident report in the database.

This was a highly controversial provision as in the past such information simply was not readily available to consumers, or plaintiffs attorneys.  It will be interesting to see how the provision is implemented, and how it effects product safety litigation in the future.

Section 217: Penalties

Civil Penalties
The maximum civil penalty for most violations, including reporting violations, is increased from $1.825 million to $15 million.  The Congress had been all over the map on this issue, ranging from $10 million to $100 million.  The new penalty amount goes into effect, the earlier of when the Commission completes a rulemaking to establish the new penalty amount, along with minor changes to the penalty guidelines, or one year from date of enactment of the new legislation.  My guess is that one year is the more likely date.  The CPSC has a lot of work to do in the next twelve months.  I do not think it is likely that all of these various rulemakings will be completed on time.

Criminal Penalties
The maximum criminal penalty for violations of the Consumer Product Safety Act is increased from one year to five years for knowing violations of the Act.  In addition, directors, officers and agents who have “knowledge of notice of non-compliance received by the corporation…” are now specifically subject to these criminal penalties.

In addition, Congress specifically allows for asset forfeiture for violations of any of the Acts.  This is something that has been pushed for by Eric Stone, the former Director of the Legal Division in Compliance, and Robert La Haie, who oversees CPSC related litigation at the Department of Justice, and has been applied in several recent cases prosecuted by Justice under other federal statutes.

Section 218:  State Attorneys General Actions
This very controversial provision authorizes state attorneys general to bring court actions against residents of its state for certain violations of the Consumer Product Safety Act, including for substantial product hazards.  Notice of such actions to the Commission is required under the new statutory language.  The Commission may intervene in any such court action, as it desires.

This provision creates a whole new set of regulators enforcing Section 19 of the Act, Prohibited Acts.   15 U.S.C. Section 2068.  It remains to be seen how this arrangement will work out.  It certainly has the potential for chaos for manufacturers and distributors.

Section 219:  Whistleblower Protections
Another very controversial provision is this provision which protects employees who provide company information about an allegedly unsafe product to the federal government (presumably CPSC or Justice), or to state attorneys general.  The employee is now given certain protections from being discharged by the company.

Conclusion:
It would be difficult to include every important provision in the new law in this short six page summary.  If there are issues that you would like to discuss further, please email me at [email protected].  If there are issues that you would like to see covered in this summary, please let me know and I will add them.  It is difficult to craft a memorandum that answers all questions without creating a document longer than the new law itself.

David H. Baker
August 9, 2008