S-8 | November 2008

CPSIA February 10 Effective Date for New Lead and Phthalate Standards

As you know, the Consumer Product Safety Improvement Act of 2008 imposes new standards on toys and children’s products relating to lead and phthalate content. The effective date of the new standards is February 10, 2009. You may review the standards here. Within the past few days, the CPSC General Counsel has issued the following opinions regarding the applicability of the February 10 effective date to product in inventory.

Lead
In a letter dated November 14, 2008, the CPSC General Counsel said:

“The Commission is aware of the potentially significant economic impact that the new Act could have on any remaining inventory next February. However, Congress stated that children’s products that did not meet the new lead limits would be treated as ‘a banned hazardous substance’ under the Federal Hazardous Substances Act as of February 10, 2009, and made it unlawful to ‘sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States’ any banned hazardous substance.”

Therefore, the Commission is abiding by its original announcement on September 12, that “products that contain lead above the limit set in the CPSIA cannot be sold from inventory or on store shelves after February 10, 2009.”

Phthalates
In a letter dated November 17, 2008 regarding the new phthalate standard, the General Counsel said:

“….with respect to phthalates, the legal analysis is different.* * * With regard to phthalates, Congress created a consumer product safety standard and the clear statement of unambiguous intent to apply that standard retroactively cannot be found.”

Therefore, the Counsel’s conclusion is that the new standard applies to “only those products manufactured after the effective date of the new standard.” (Emphasis added)

Both opinion letters note that the views expressed are those of the General Counsel and have not been [formally] reviewed or approved by the Commission, and that persons may petition the Commission for relief if they believe they will be unable to bring their products into compliance.

Clearly it is in the interest of all responsible companies to have an orderly marketplace transition for completely new product requirements that impact their products. We welcome clear guidance that enables companies to effectively meet such requirements. If, nevertheless, you believe that the application of the opinions of the General Counsel will jeopardize your company, you may click on the following links to send a message to the Consumer Product Safety Commission (CPSC) and/or to your members of Congress (by entering your zipcode).