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In anticipation of the February 10, 2008, deadlines in the Consumer Product Safety Improvement Act of 2008 (CPSIA), the Consumer Product Safety Commission (CPSC), a federal court, and Congress took steps in recent weeks to interpret or modify the CPSIA's requirements.
Court Order Setting Aside CPSC Phthalate Opinion
On February 5, 2009, a federal district court in the Southern District of New York set aside the CPSC's November 17, 2008, opinion, which excluded items in inventory from the CPSIA 's phthalate regulations. National Resources Defense Council v. U.S. CPSC, 08 Civ. 10507.
The CPSC had held that only items manufactured on or after February 10, 2009, were required to meet the phthalate regulations. However, the NRDC court found the CPSC's decision unenforceable and in violation of the Administrative Procedure Act. The CPSC has confirmed that it will not appeal. Accordingly, the CPSIA's phthalate regulations apply to items in inventory on and after February 10, 2009. Click here for a summary of the CPSIA's phthalates regulations.
Lead Content Stay Not Approved
On January 28, 2009, the CPSC Coalition of the National Association of Manufacturers (NAM Coalition) asked the CPSC to stay the CPSIA's February 10, 2009, lead content restrictions for 185 days or until 90 days after the CPSC issued final rules to fully implement Section 101 of the CPSIA. Click here for a summary of the CPSIA's lead content regulations.
The NAM Coalitionargued that the CPSIA lead restrictions would effectively cripple manufacturers, harm small businesses, and further escalate the current economic downturn. The CPSC denied NAM's request on February 5, 2009, and the CPSIA's lead content requirements for children's products, thus, will be enforced beginning February 10, 2009.
Interim Final Rules on Enforcement of the Lead Content Standard for Children's Products
The CPSC recently issued two interim rules to help bridge the gap between the February 10, 2009, lead content restrictions and the CPSC's issuance of permanent rules. Among other things, the interim rules provide the following:
Until the CPSC issues a final inaccessibility determination, it will accept a manufacturer's "reasonable judgment" regarding inaccessibility under Section 101(b)(2) .
The CPSC issued a list of electronic component parts exempted from the lead standard.
Absent actual knowledge of a product's excess lead content, the CPSC will not prosecute any person under the lead content limits who manufactures or imports (1) certain natural materials (i.e., precious gemstones), (2) children's books printed after 1985, or (3) dyed or undyed textiles. Fasteners, zippers, rhinestones, and other non-textiles are not exempted.
Congress Moves to Amend the CPSIA
In addition to numerous public comments, members of Congress have been actively proposing changes to the CPSC, most of which are now being considered by committees.
Bills were introduced in the House and Senate (S. 374 and H.R. 968) to provide relief from the CPSIA to small and family-owned businesses.
Senator Bob Bennett introduced a bill (S. 389) to establish a conditional stay of the ban on lead in children's products.
The Thrift Store Protection Act (H.R. 1027) was introduced to exempt second-hand sellers from the lead content and certification requirements.
The Children's Product Safety Enhancement and Clarification Act of 2009 (H.R. 1046) was introduced to ensure the effective implementation of children's product safety standards.
Representatives Barton and Radanovich sent a letter to House Energy and Commerce Committee Chairman Henry Waxman asking him to convene a hearing to examine the problems in implementing the CPSIA.
CPSIA Phthalates Regulations Summary
Under the phthalates regulations, no children's toy or child care article (a consumer product designed or intended to facilitate sleep or the feeding of children age 3 or younger, or to help children under the age of 3 with sucking or teething) may contain more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate(DBP), or benzyl butyl phthalate (BBP). Additionally, no children's toy that can be placed in a child's mouth or child care article may contain more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
CPSIA Lead Content Regulations Summary
The CPSIA sets lead content limits for children's products (products designed or intended primarily for children 12 years of age or younger). The lead content limits will progressively lower from 600 ppm on February 10, 2009, to 300 ppm on August 14, 2009, to 100 ppm on August 14, 2011.