Bisphenol A Officially Declared Toxic by Canada

(FoodProductionDaily.com – Rory Harrington)

Canada became the first country in the world yesterday [October 13] to declare bisphenol A (BPA) to be a toxic substance that poses risks to human health and the environment. The announcement by the Canadian Health and Environment Ministries confirmed the chemical had formally been added Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA 1999).

“The Government of Canada has a strong record of taking action on Bisphenol A to protect the environment and health of Canadians,” said Environment Minister Jim Prentice. “We are continuing our leadership on this issue and...working hard to monitor and manage Bisphenol A.”

BPA is an industrial chemical used to make a hard, clear plastic such as re-usable polycarbonate baby bottles. It is also used in the manufacture of epoxy resins, which act as a protective lining on the inside of metal-based food and beverage cans. Read more here.

Canada Consumer Product Safety Act Consultation: Administrative Monetary Penalties

(International Law Office – Penny S Bonner and Martha A Healey, Ogilvy Renault LLP)

On August 25 2010 Health Canada announced another consultation on regulations under the proposed Canada Consumer Product Safety Act.

The intent of the proposed Administrative Monetary Penalties Regulations would be to provide details on how a penalty for a violation under the proposed act would be calculated, including ‘gravity factors’, weighting and penalty values. The regulations would:

• contain information classifying violations as minor, serious or very serious;

• identify how gravity factors of history and risk would be used to calculate the penalty; and

• provide for a range of penalties associated with the ‘total gravity values’.

This new consultation is the fourth such consultation launched by Health Canada over the last few months. Even though Health Canada is releasing consultation documents (as opposed to actual draft regulations), this activity shows a clear intent to move actively forward, or be seen to be moving forward, with draft regulations for the proposed act. In turn, this may be a sign that Health Canada will push swift passage of the proposed act once Parliament returns from the summer recess in September.

The consultation on the proposed Administrative Monetary Penalties Regulations is open for comment until November 7, 2010. Read more here.

Toy Makers Fight for Exemption from Rules

(New York Times – Andrew Martin)

Is a football mainly for children? What about a Halloween costume or a model train?

None of the above, manufacturers say, as a new federal crackdown on dangerous toys has left some in the industry crying foul and not wanting to play. The Consumer Product Safety Commission has been swamped with requests to exempt playthings from the new regulations, put in place after extensive toy recalls several years ago.

The Consumer Product Safety Improvement Act of 2008 gave the commission the job of defining a “children’s product” – which includes such things as toys, clothing and household goods – and eventually enforcing the act. But coming up with that definition has become so difficult that the commission has postponed votes three times. Another vote is scheduled for Wednesday, but it is unclear if the five commissioners – three Democrats and two Republicans – can reach an agreement this time. A spokesman for the commission declined to comment. Read more here.

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.

Consultation Regarding Exemption Regulations under the Proposed Canada Consumer Product Safety Act

(Penny Bonner et al., Ogilvy Renault LLP)

On August 6, 2010, Health Canada announced that it would be conducting a consultation regarding proposed Exemption Regulations pursuant to the proposed Canada Consumer Product Safety Act (the “CCPSA”), which would provide stakeholders with the opportunity to provide their comments.

The proposed Exemption Regulations would exempt certain classes of consumer products from compliance with specified provisions of the proposed CCPSA or other regulations made pursuant to the CCPSA:

i. products manufactured domestically or imported into Canada then exported for sale;
ii. products which can be imported and then brought into compliance with the CCPSA; and
iii. products manufactured, imported or advertised for testing, research or exhibition.

The consultation document available for comment regarding Consumer Products Non-Compliant with Requirements in Regulations, can found by clicking here.

The exemption with respect to preparation and maintenance of documents is for any recipient of a consumer product where the consumer product is donated (i.e., given for no consideration) and the donation is from a person other than a manufacturer, importer, distributor or retailer.

The consultation document available for comment regarding Preparing and Maintaining Documents can found here.

Any comments related to these documents will be taken into consideration. These consultations are open for comment until October 19, 2010.

NEW on the Health Canada CCPSA Website: Exemption Regulations Consultation

(Health Canada)

Regulatory consultation on the proposal for the making of Exemption Regulations respecting consumer products non-compliant with requirements in regulations and preparing and maintaining documents under the proposed Canada Consumer Product Safety Act

Product Detained by CPSC at a Port? CPSC has Issued FAQS

(Lexology)

Since the Consumer Product Safety Commission (“CPSC”) began issuing its own import detention notices in June, some companies have struggled to obtain the release of detained products, particularly to determine the process the CPSC would follow and minimize the detention period. The CPSC has now issued frequently asked questions (“FAQs”) to help companies navigate the process.

Historically, Customs and Border Protection (“CBP”) had issued notices for potential CPSC violations, so CPSC hopes to eliminate CBP as the middleman

CPSC will send a detention notice to the importer of record, broker, and CBP, typically by e-mail. If CBP has also detained the product, those issues will be resolved first. CPSC will only detain products described in the notice, so the importer or broker should contact CBP to obtain the release of other products in the shipment. Conditional release or exportation of products is also possible on a case-by-case basis. Detention notices are not subject to protest, but companies will have five days to submit information supporting admissibility of the product and can request an administrative hearing. CPSC will try to make admissibility decisions within 30 days of detention.

Given these new procedures, importers of consumer products should be in close contact with their brokers and respond quickly to detention notices. Companies may also take a proactive approach by working with the CPSC compliance officer at CPSC headquarters to facilitate communications with the CPSC representative at the relevant port.

Consumer Product Safety Commission Inspectors Now Responsible for Enforcement of Product Safety Laws at U.S. Ports of Entry

(Robin E. Harvey and Lourdes Perrino, Baker & Hostetler LLP)

Beginning mid-June, 2010, the Consumer Product Safety Commission (CPSC) has been posting inspectors at U.S. ports of entry for the purpose of enforcing product safety statutes and regulations. Before, screening always had been performed by Customs inspectors, who could call in CPSC inspectors when they thought it necessary or appropriate.

Containers are being seized at both air and sea ports, requiring importers and customs brokers to produce general conformity certificates for all products and product testing compliance certificates for products specifically identified under the Consumer Product Safety Improvement Act (CPSIA) as requiring specialized testing for lead and phthalate content. So far, reports from the field indicate that seized goods are being released almost immediately after the proper certificates are produced. However, seized products not intended for use by children and not tested in conformity with CPSIA requirements are being detained by the CPSC as alleged non-conforming goods, until inspectors are satisfied that the seized goods should not be considered children’s products. Importers and customs brokers benefit from having on hand documentation to support the position that seized merchandise are not children’s products. […]

Impact of CPSC Agents at U.S. Ports

The addition of an agency charged with vigilance at U.S. ports and armed with new powers and penalties may cause concern for foreign exporters and for importers, especially in the handling of Chinese goods because goods from China triggered these developments. Certainly the general move to greater vigilance and penalties was intended to persuade exporters and importers alike to be more vigilant themselves. In addition, despite the increased budget and staffing, the CPSC remains shorthanded for its new tasks. It has been able to deploy only a small number of inspectors at each of the ten largest ports in the U.S.

Importers and exporters might deduce that consumer goods and food will be delayed at major ports. So far, that concern would be misplaced. Early reports from New York’s Kennedy International Airport and the port at Savannah GA indicate that release of detained goods generally has been prompt. The key is to have the proper documentation ready. Inspectors are proving cooperative and responsible. They are not bottling up goods unnecessarily, but they do represent a greater commitment in the United States to protect against unsafe products being imported from other countries. Read more here.

Customs Brokers Oppose Agent Requirement

(Journal of Commerce – R.G.Edmonson)

Proposed foreign manufacturers act could backfire, say forwarders

Customs brokers are asking the House Ways and Means Committee to weigh in on legislation that would require foreign manufacturers to have registered agents in the U.S. to represent them in state and federal courts.

In a letter to the committee’s leadership Jeff Coppersmith, president of the National Customs Brokers and Forwarders Association of America, said that requiring foreign companies to have a U.S. proxy to appear in legal proceedings would prompt other countries to reciprocate.

“It will be very difficult and expensive for small and medium-sized companies to maintain registered agents in all the foreign markets to which they export,” Coppersmith said. U.S. companies would also face uncertainty in the way foreign legal systems would treat them.

A House Energy and Commerce subcommittee last week took testimony on the proposed Foreign Manufacturers Legal Accountability Act. The bill is supported by the Consumer Product Safety Commission, which says lack of a U.S. agent makes it difficult to bring foreign manufacturers to account for unsafe products.

Fixing ‘Unintended Consequences’

(Industry Week – Jill Jusko)

Proposed legislation to modify 2008’s sweeping consumer product safety law is drawing mixed reactions from manufacturers

Sean Hilbert is among the manufacturers keeping a close eye on proposed draft legislation aimed at modifying the Consumer Product Safety Improvement Act of 2008 (CPSIA). So far, the president of Cobra Moto is not entirely pleased with what he sees. “It’s moving in the right direction. It’s not moving fast enough,” he says.

The draft legislation in question is the Consumer Product Safety Enhancement Act of 2010 (CPSEA), introduced by Rep. Henry Waxman (D-Calif.) in March and debated in late April at a hearing before the House Subcommittee on Commerce, Trade and Consumer Protection. It aims to address what some have called the “unintended consequences” of the CPSIA, a sweeping law that reformed U.S. consumer safety laws in the wake of a seeming groundswell of recalls of children’s products, many due to unsafe lead levels.

Among the unintended consequences, the law’s critics say (and proponents as well), is the wide range of children’s products swept up by the lead provisions – even for products not likely to be ingested or mouthed by children, as well as burdensome and expensive testing procedures that could drive smaller manufacturers out of business (and already have, in some instances). The complexity of implementing the legislation is evidenced by several stays of enforcement of lead-content limits for certain products as well as third-party testing requirements. Read more here.

Procedural Changes for Shipments Detained for Product Safety Violations

(World Trade Interactive)

U.S. Customs and Border Protection has announced that effective June 14 the Consumer Product Safety Commission is implementing the use of its detention authority under the Consumer Product Safety Improvement Act of 2008. As a result, unless there is a customs violation, CBP will no longer detain CPSC-regulated products under 19 USC 1499; instead, CPSC will detain under its own authority and CBP will act as custodian of the merchandise.

Notices of detention will be issued by CPSC to the importer with copies to CBP and the customs broker. These notices will provide a description of the suspected violation, a citation of the statute governing the suspected violation and contact information for the CPSC officer. All concerns related to a CPSC detention should be addressed to the CPSC contact and not to CBP. However, if a shipment is detained under both CBP and CPSC authority, detention notices will be issued by both agencies and resolution will need to be sought with both to obtain release of the shipment.

Feds Seeks to Again Boost Product Safety Laws

(Montreal Gazette – Amy Minsky, Canwest News Service)

The Harper government will soon reintroduce a product safety bill giving it the power to issue recalls only months after a similar bill died in Parliament over political infighting between the Conservatives and Liberals.

Health Minister Leona Aglukkaq made the announcement Monday after touring part of Health Canada’s product safety laboratory in Ottawa, where she looked through recently recalled baby walkers, playpens and jewelry containing high levels of lead.

The new bill, expected to be tabled Wednesday, will also require that companies begin to report safety-related incidents to the government. Read more here.

Product Safety Bill Being Retooled, Gov’t Acknowledges

(Canada.com – Sarah Schmidt, Canwest News Service)

Health Minister Leona Aglukkaq is making changes to the government’s product safety bill after chastising Liberal senators for fiddling with the legislation last year.

The change of heart comes after a bruising few months late last year, when Liberal senators, who enjoyed a plurality in the upper chamber, amended the bill after it passed the House of Commons unanimously. Had the Senate not approved the handful of amendments in December, the bill would have become law before the new year. Instead, the amended bill was sent back to the House of Commons, where it died when Parliament was prorogued.

Aglukkaq has yet to reintroduce the bill because the government itself is quietly reworking the legislation, even though the original bill received the enthusiastic support from all three opposition parties in the House of Commons. Read more here.

CBP, CPSC Sign Agreement to Promote Consumer Safety

(CBP)

U.S. Customs and Border Protection Commissioner Alan Bersin and U.S. Consumer Product Safety Commission Chairman Inez Tenenbaum today [April 26] signed a memorandum of understanding for CBP’s Import Safety Commercial Targeting and Analysis Center. The MOU will allow CPSC personnel to access CBP commercial automated systems for import safety risk assessments.

“This is an important first step in strengthening our ability to promote consumer well-being and safety,” said Commissioner Bersin. “With this memorandum of understanding, CBP and the Consumer Products Safety Commission will be able to further protect consumers against the importation of dangerous goods into the U.S.”

The MOU gives CPSC the capability to conduct import safety risk assessments and perform targeting work using CBP’s Automated Commercial System.

“This cooperation between federal partners is making U.S. consumers more safe. By identifying and checking consumer products at our ports, we can reduce the flow of dangerous products into our homes,” said CPSC Chairman Inez Tenenbaum.

The Import Safety CTAC reflects the three core principles announced by President Obama’s Food Safety Working Group in July 2009: prevention, surveillance and response. Created in March 2009, the Working Group was tasked with advising President Obama on how to upgrade the U.S. food safety system for the 21st Century.

CBP established the CTAC Oct. 1, 2009, as a fusion center for agencies to share targeting resources, analysis, and expertise to achieve the common mission of protecting U.S. citizens from unsafe imports. In addition to CBP, the government agencies represented at CTAC include the Consumer Product Safety Commission, the Food and Drug Administration, and the U.S. Department of Agriculture’s Food Safety Inspection Service.

Related: Lawmakers Consider Bill to Address Problems with Product Safety Law (World Trade Interactive)

Coalition of Industry Groups Launches Web-Based National Product Recall Program

(The Canadian Press)

A coalition of Canadian industry associations has come together to launch a single standardized program for product recalls. The new recall program will make use of web-based technology created by GS1 Canada, the non-profit organization known for creating and managing bar codes used by businesses.

The new program will not replace or change the existing recall system driven by the Canadian Food Inspection Agency. But the group representing manufacturers, retailers and distributors says it will standardize the communication of recall information between Canadian businesses.

Currently, product recalls are the responsibility of the company involved, and the company works with the Canadian Food Inspection Agency and retailers to execute them. The coalition says this results in significant variation in processes and communication across industry.

The group says the new program will enhance consumer safety and lessen the administrative burden for businesses. Read more here.

CPSC Delays Reporting Deadline [Bicycles]

(Bicycle Retailer – Nicole Formosa)

The Consumer Product Safety Commission has delayed the deadline for bicycle manufacturers to file reports detailing the lead content in their children’s products until October 9.

The deadline was initially set for the end of August, but the Bicycle Product Suppliers Association lobbied the Commission for an extension due to uncertainty as to which components needed to be included in the report. In a 5-0 vote, the Commission agreed last week to grant the request.

The report is required by manufacturers who want to take advantage of the two-year stay of enforcement for a strict new lead limit, as dictated by the Consumer Product Safety Information Act. The law eventually limits the amount of lead in children’s products to 100 parts per million.

The stay specifies that each manufacturer covered by the stay must file a report with the Commission identifying each model of bicycle produced between May 1, 2008 and May 1, 2009, and each component on that bicycle that is accessible to children, the material used for each part and the lead content in parts per million. Suppliers must also explain what their plans are to change the lead content in those products and what the scientific basis is to use a material that includes lead for a particular component. Read more here.

Tools to Track Imports Are Limited

(Aaron Kessler — Herald Tribune.com)

Consumer safety agency can do little about items such as tainted drywall

The Consumer Product Safety Commission is unable to access key shipping information to target suspicious products entering the United States, has no long-term plan for ensuring the safety of those imports and has yet to implement critical provisions of a law passed last year to strengthen its regulatory authority.

Those were the findings of a new report issued by the Government Accountability Office, which acts as the investigative arm of Congress. The report found that the CPSC — the lead agency in the investigation of tainted Chinese drywall — lacks vital tools as well as manpower to effectively stop faulty imports.

The CSPC has limited presence at U.S. ports and has to rely on U.S. Customs and Border Protection officials who are, in turn, under pressure to move shipments quickly, the report says. 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.

CPSC Eases Up on Tracking Label Rule

(Kids Today)

U.S. Consumer Product Safety Commission members voted unanimously this week to approve a draft statement that will give manufacturers credit for “good faith” compliance with the tracking label requirements of the Consumer Product Safety Improvement Act that go into effect next month.

“I believe that the guidance unanimously approved by the Commission... will help to achieve the goals of improved recall effectiveness and better protection of consumers while also providing industry with assurance that the Commission does not intend to penalize manufacturers for inadvertent violations of the statute when they have made a good faith effort in attempting to comply with the tracking label requirements,” said Inez Tenenbaum, CPSC’s newly appointed chairman.

Section 103(a) of the CPSIA requires manufacturers to place permanent, distinguishing marks on children’s products and the packaging “to the extent practicable” as aid for parents and retailers to quickly recognize whether a toy they own or stock is the same as one involved in a recall.

The regulation has caused several concerns, three of which Tenenbaum acknowledged in her statement: that one size does not fit all when it comes to tracking labels; that small volume manufacturers say they can’t feasibly comply with the statute because their production patterns “do not lend themselves to lot, batch and run labeling systems”; and that confusion over how to meet the requirements comes too late to meet the August 14 deadline for enacting them.

Click here to see the CPSC’s new interpretation and policy statement about Section103(a).

According to Commissioner Nancy Nord, “It is important to note that the guidance issued today probably will not be the last word on this important issue.”