An Open Letter to Toy Retailers

February 23, 2009

Toy Industry Association, Inc. (TIA) is the not-for-profit trade association for the producers, importers and distributors of toys and youth entertainment products sold in North America.  TIA and its member companies are committed to assuring the safety of the nearly three (3) billion toys that enter the marketplace each year.

As a valued customer of our industry's products and as the vital link to consumers, it is important to us that members of the retail community understand the current status of the toy industry’s efforts to implement and adhere to the requirements of the Consumer Product Safety Improvement Act of 2008 (CPSIA) so that they may make an informed judgment about whether the products currently on their shelves are likely to be in violation of the new standards for lead and phthalates that became effective on February 10, 2009.
The U.S. Consumer Product Safety Commission (CPSC) has provided relief from some provisions of the CPSIA TIA is a strong supporter of the concepts contained within the CPSIA.  The Act strengthens toy safety standards and elevates them to the status of federal law; it also mandates certified testing by manufacturers to prove conformance with these standards. 

Unfortunately, in the rush for adoption, the final language used by Congress resulted in much confusion about the scope and impact of the law and in the imposition of unrealistic effective dates and unwarranted retroactivity.  Staff at the CPSC, the agency responsible for enforcement of the CPSIA, has done much to decipher and illuminate the Act. 

On January 30, 2009, the Commission approved a one-year stay (e.g., postponement) of certain testing and certification requirements for total lead content limits and phthalate limits.  The one-year postponement for the proper testing for phthalates and lead content  is intended to provide CPSC a window to develop needed regulatory guidance for use by manufacturers and importers in testing to the new standards. 

In addition, in early February, the CPSC announced a “Good Faith”-based enforcement policy that it will not impose penalties against manufacturers, importers, distributors, and retailers that make, import, distribute, or sell toys  if they have no “actual knowledge” that a product exceeds limits, or  continue to  distribute a product after being put on actual notice by CPSC not to do so. 

The February 6 announcement  includes exemptions for toys with electronic components and inaccessible parts that may exceed the 600 ppm lead limit, and certain materials that the Commission has recognized rarely, if ever, contain lead.   Further, to the exemption for inaccessible parts, the CPSC has announced that it will accept in good faith “a manufacturer’s determination that a lead-containing part on their product is inaccessible to a child and not subject to the new lead limits”.

Draft guidance issued by the CPSC on February 12 has also helped to clarify that a very limited range of defined toys and childcare articles are actually subject to the phthalate requirements that went into effect on February 10.

Thus, the CPSC has only recently begun to define testing methodologies and has yet to accredit any parties to conduct either lead content or phthalate testing.  This means that manufacturers and retailers have been calling upon their labs to test existing inventory against yet-to-be-defined testing protocols.

Recently published CPSC testing protocols for phthalates also clarify that much of the previous testing on surface coatings and component parts done to date may have overstated problems.

While the reports we are receiving from retailers and manufacturers is that a very small number of currently produced toys have been found in testing to violate the new standards, particularly given the exemptions clearly allowed by CPSC and the Act, TIA remains concerned about removal of past produced product without adequate CPSC guidance or rules in place . 

The Toy Industry’s Record of Safety
The toy industry is working diligently to assure that the products it produces conform to the new safety standards.  But toys have historically been among the safest consumer products in the marketplace. Limits on lead content for surface coatings have been in place for decades, and toy manufacturers have had no reason to specify the use of lead in their products. 

We 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.  

Accordingly, TIA urges retailers to be mindful of the CPSC  policy that emphasizes and encourages good faith judgments and  to make sound decisions regarding whether the inventory on your shelves does not violate CPSIA requirements, unless specifically advised otherwise by the Commission or suppliers.

As CPSC Commissioner Moore noted in voting for the stay of enforcement: “If there is one message a small manufacturer should take from the Commission’s action today it is this: If you have been making products without receiving any safety-related complaints, you should go on making and selling your products.”  

Hundreds of toy manufacturers have been making products without receiving any safety-related complaints for many years:  less than 1% of toy products were recalled in 2007 for lead content issues and there were no reports of any injuries or adverse health effects from any of the toys recalled for lead standard violations. 

Because of this record of safety, retailers and parents can be confident that the toy industry fully understands its safety responsibility.  We will continue to take all possible steps to comply with federal toy safety laws and abide by all CPSC determinations of safety that are based upon established, clear and comprehensive regulations and standards.  

We look forward to working with you to ensure that all toys sold in the U.S. are safe.

Thank you.