TIA Actions Continue Through Eve of February 10 CPSIA Deadlines
February 9, 2009 – In an effort to
provide clear and reasonable guidance to those impacted by the Consumer
Product Safety Improvement Act of 2008 (CPSIA), the U.S. Consumer
Product Safety Commission (CPSC) announced on February 6th its
enforcement policy for new lead limits established under the law.
TIA communicated to members and industry contacts on
February 7 and again
today that the action appears to provide some of the relief
that has been requested by the makers of toys and other children’s
products, at least insofar as lead enforcement is concerned. The
Commission has also provided some of the clarity that had been sought
regarding exemptions for certain materials, electronic products, and
inaccessible parts.
Surprise Ruling on Phthalates
Much of the industry is still rebounding, however, from the
surprise of a February 5 ruling by the United States District Court for
the Southern District of New York to set aside (i.e., overturn) the CPSC
General Counsel’s opinion regarding the non-retroactive
application of the phthalate ban defined in Section 108 of the CPSIA.
The court found that the statutory purpose, legislative history,
structure and language of the CPSIA indicated that the phthalate
restrictions apply to all products offered for sale and distribution
after February 10, 2009, including existing inventory.
Prior to the court’s decision, the makers of children’s
products were preparing themselves for a forward-looking (i.e.,
prospective) implementation of the phthalates ban, not a
backward-looking approach that would jeopardize the ability to make use
of product that is already in inventory – even if those products
met the strict U.S. safety standards that were in place when the
legislation was passed.
Three phthalates, DEHP, DBP, and BBP, have been permanently banned in
concentrations of more than 0.1% in children’s toys[1]
or child care articles[2]. Three additional phthalates,
DINP, DIDP, and DnOP, have been prohibited in concentrations of more
than 0.1% pending further study and review by the Commission and a group
of outside experts. This interim prohibition applies to toys that can be
placed in the mouth (for example: squeeze toys, teethers, bathtub toys
and uninflated pool toys) as well as child care articles for children
three and under.
The CPSC’s interpretation that the phthalate prohibitions would
not be applied retroactively received immediate criticism from members
of Congress, state Attorneys General, and consumer advocacy groups. Two
consumer advocacy groups, the National Resources Defense Council, Inc.
(“NRDC”) and Public Citizen, Inc. (“PC”) filed a
lawsuit against the CPSC seeking a declaratory judgment on the
interpretation of the phthalate ban.
In response to the court order, TIA has asked CPSC Acting Chairman Nord and Commissioner
Moore to take an Emergency Interim Action that would provide
enforcement guidance on phthalates similar to those just
handed down on lead.
At the same time TIA was submitting its request to CPSC, the
Commission was publishing its first announcement of the technical methodology for the testing of phthalates;
notice of availability of the guidelines was distributed by CPSC just before
6:00 pm on February 9.
“We continue to believe that there are very few defined toys
currently in the marketplace that have accessible, mouthable components
that would fail to meet the new CPSIA requirements,” said Carter
Keithley, TIA president, “but there is no way that the industry
can perform any additional testing by midnight tonight.”
Confusion Continues
A January 30, 2009 action by CPSC postponed for one year
or until the CPSC adopts more detailed regulations
many[3] of the CPSIA’s requirements for testing,
certification and General Certificates of Compliance (GCC). The
postponement was intended to provide CPSC a window to develop needed
regulatory guidance for the proper testing for phthalates and lead
content.
The new testing methodologies are finally becoming available, but
there is ongoing confusion.
Even though certain testing and certification requirements were
deferred, the new limits for lead content (600 ppm) and phthalates (1000
ppm), along with the requirements for compliance with certain mandatory
toy standards, are still scheduled to begin tomorrow.
Many small and medium-size businesses are finding little real relief
from the Stay since compliance on February 10, 2009 must still be
achieved, thus creating a significant burden on their businesses.
Some have already faced closures.
TIA is urging the CPSC to take action as soon as possible so that
industry has time to gear up to meet any new requirements imposed to
demonstrate compliance.
“Until this happens, there probably will not be one universal
response among retailers,” said Keithley. “We will
continue to urge retailers to rely on supplier certifications, heed the
CPSC stay, and presume that inventory on shelves does not violate CPSIA
requirements, unless specifically advised otherwise by the Commission or
suppliers.”
Keithley also noted the advice that CPSC Commission Moore had offered
to small manufacturers when he said: “If you have been making
products without receiving any safety-related complaints, you should go
on making and selling your products.”
TIA will continue its outreach to Congress and the Commission to act
immediately to ensure that – without compromising safety –
inherently safe products that do not expose children to established
health risks are not indiscriminately removed from store shelves or
charitable pantries.
[1] A “children’s toy” is a product intended
for a child 12 years of age or younger for use when playing. General use
balls, bath toys/bath books, dolls and inflatable pool toys are examples
of toys that are covered by the law and might contain phthalates. Bikes,
playground equipment, musical instruments, and sporting goods (except
for their toy counterparts) are not considered toys and therefore not
affected by the ban.
[2] A “child care article” is a product that a child
under 3 would use for sleeping, feeding, sucking or teething. Bibs,
child placemats, child utensils, feeding bottles, cribs, booster seats,
pacifiers and teethers are child care articles that are covered by the
law and might contain phthalates.
[3] The Stay specifically excludes and does not apply to:
TIA members are cautioned that third party verification and
certification of compliance are still required for existing lead paint
and small parts regulations and are unaffected by this Stay.
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