Draft Rule Lays Out Interpretation of “Children’s Product” under Product Safety Law

(World Trade Interactive)

The Consumer Product Safety Commission will vote Sept. 9 on whether to accept a draft final interpretative rule providing additional guidance on the factors considered when evaluating what is a children’s product under the Consumer Product Safety Improvement Act of 2008.

The CPSIA defined “children’s product” as a consumer product designed or intended primarily for children 12 years of age or younger. This law also specifies certain factors that are to be taken into consideration when making a determination about whether a consumer product meets this definition, including the manufacturer’s intended use of the product; the packaging, display, promotion and advertising of the product; consumer perception; and the CPSC’s Age Determination Guidelines. Read more here.

Cadmium Products Now in Crosshairs of Federal and State Legislators

(Lexology – Robert B. Hopkins et al., Duane Morris LLP)

With lead banned in children’s products by the Consumer Product Safety Improvement Act of 2008 (CPSIA), many American politicians, regulators and consumer groups are now calling for a ban on cadmium, another toxic metal that has been used in consumer products. Cadmium is a soft, bluish-white, natural metal with a very-low melting point. It has been used in batteries and jewelry, as well as in coatings on consumer products. Various studies have concluded that it is toxic and that certain exposure levels can lead to significant health problems. As a result, the use of cadmium has been on the decline in recent years. However, with the recent lead ban, it has been reported that some non-U.S. manufacturers in the last two years have turned to cadmium as a replacement for lead.

Cadmium is strictly regulated in the European Union. In the United States, the laws addressing cadmium are not as comprehensive. Only one federal statute deals with its use in consumer products, and this law – in place since 2008 as part of the CPSIA – only bans its use in coatings for children’s toys. This toy-coatings ban is enforced by the Consumer Product Safety Commission (CPSC). No particular CPSC federal statute bans the use of cadmium in other consumer products, including children’s products such as jewelry. The CPSC has a general enforcement statute in place, known as the Federal Hazardous Substances Act (FHSA), which theoretically permits it to ban products containing "hazardous substances." Read more here.

CPSC Outlines Lead Ban Exemptions for Children’s Electronic Devices

(World Trade Interactive)

The Consumer Product Safety Commission has issued a final rule concerning certain electronic devices for which it is not technologically feasible to meet the limits on lead content in children’s products.

The Consumer Product Safety Improvement Act of 2008 provides that as of Aug. 14, 2009, products designed or intended primarily for children 12 and younger may not contain more than 300 ppm of lead. This limit will be further reduced to 100 ppm as of Aug. 14, 2011, unless the CPSC determines that it is not technologically feasible to meet this lower limit. The CPSIA further provides that these lead limits do not apply to component parts of a product that are not accessible to a child; i.e., parts that are not physically exposed by reason of a sealed covering or casing and do not become physically exposed through reasonably foreseeable use and abuse of the product, including swallowing, mouthing, breaking or other children’s activities, as well as the aging of the product. Paint, coatings or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child. Read more here.

GAO Urges Consumer Agency to Speedily Implement Laws on Imports

(NASDAQ – Darrell A. Hughes, Dow Jones Newswires)

The U.S. Consumer Product Safety Commission should work “expeditiously” to implement key provisions of federal law to ensure that imported consumer products are better regulated, a government report released Friday said.

The report by the Government Accountability Office also recommends that the commission resolve issues it has with the U.S. Customs and Border Protection, saying that it “does not have access to key [customs] import data it could use to target incoming shipments for inspection.”

The Consumer Product Safety Commission has agreed with the GAO’s recommendations, according to the report.

Consumer advocates have criticized the commission for not implementing portions of the Consumer Product Safety Improvement Act that address U.S. consumer protection. Read more here.

CPSIA Raises Civil Penalties, Lowers Acceptable Lead Levels

(ConsumerReports.org)

This Friday three important provisions of the Consumer Product Safety Improvement Act take effect that lower acceptable lead levels, raise the amount of civil penalties and require tracking of children's products. Here are the details:

Lead
The legislation reduces the total lead content in children's products to 300 parts per million (ppm) from 600 ppm and also limits the amount of lead in surface coatings or paint to 90 ppm.

The lead rules also apply to children's jewelry.

In 2007, dubbed the "Year of the Recall," millions of toys were recalled because they violated lead levels.

Civil penalties
The Consumer Product Safety Commission is also hiking its civil penalties for companies that fail to report hazardous products to the agency in a timely manner from $8,000 per violation with a maximum of $1.825 million to $100,000 per violation with a maximum of $15 million.

"If the record of recent CPSC-announced recalls is any indication of the approach companies have taken to date in complying with this reporting requirement, then many manufacturers, importers, distributors and retailers could be subject to increased penalties for reporting violations" commented Alan Schoem, a former CPSC compliance director, in the Product Safety Letter.

He added that a "reinvigorated Commission" led by new chairman Inez Tenenbaum could pose a challenge for companies that do not have processes and procedures in place to report a product defect or potential defect to the CPSC. A quick look at some recent recalls that we've written about (string trimmers, tea kettles, baby floats) shows that many companies wait far too long to alert the CPSC after getting reports of defective products.

Tracking labels
Also starting Friday, U.S. companies are required to put tracking information on all toys and children's products. The requirement is for a tracking label or other distinguishing permanent mark that contains certain basic information, including the source of the product, the date of manufacture, and more detailed information on the manufacturing process such as a batch or run number.

"The primary purpose of the distinguishing marks is to aid in the quick and effective facilitation of recalls involving children’s products," said Tenenbaum in a written statement.

Lead-Footed Safety Issues

(Washington Times – Carter Wood, National association of Manufacturers)

It’s a safe bet that no member of Congress has ever given a speech proudly endorsing a bill to close mom-and-pop businesses, hurt low-income shoppers, cause libraries to discard children’s books and ban products ranging from dirt bikes to ballpoint pens.

Last year, Congress overwhelmingly passed a law that did all these things – forcing small businesses to close and punishing manufacturers, retailers and consumers. Yet the Consumer Product Safety Improvement Act (CPSIA) became law with few warnings – and no congressional floor speeches – about the serious economic harm it would cause.

To be sure, the CPSIA came in response to the public’s legitimate concern about dangerous toys and products, especially those contaminated by lead paint. Reports in 2007 produced a media storm and political pressure. Manufacturers and retailers alike welcomed increased funding and staffing for the CPSC. But Congress went further. Read more here.

Product Safety Law Imposes Major Burdens on Auto Suppliers

(Search Autoparts.com)

A legislative reaction to recent toy recalls has unexpectedly impacted the automotive industry – one far removed from children’s products.

Congress responded to the highly publicized lead paint toy recalls in 2007-08 by passing the Consumer Product Safety Improvement Act of 2008 (CPSIA), which requires specific safety-compliance certifications by suppliers.

But despite no connection between children’s products and general automotive maintenance and care products, one CPSIA provision and its interpretation – unless amended – threaten to sweep all such products into a broad safety certification net that will impose significant costs, among other burdens, on these product suppliers, with no demonstrated safety need or benefit to the distribution chain or the consumer. Read more here.