CPSC Updates: New Commissioner, Final Phthalates Rule, & Ban on Flame Retardants

September 25, 2017 | The following is an update on recent activities at the U.S. Consumer Product Safety Commission (CPSC):

• New CPSC Commissioner & Confirmation Hearing for Buerkle
  President Trump has nominated Dana Baiocco, a Boston-based partner at Jones Day law firm, to serve as Republican commissioner of the CPSC for a seven-year term beginning October 27, 2017. If confirmed, Baiocco would take the seat of Democratic Commissioner, Marietta Robinson, whose term expires October 26. Baiocco served as a federal judicial law clerk to The Honorable Gustave Diamond, U.S. District Court for the Western District of Pennsylvania, before joining the international law firm Jones Day in 1998. According to Consumer Product Matters, Baiocco’s product safety experience “includes extensive product-liability litigation, having defended many major consumer product companies.” The timing of Senate consideration of Baiocco’s nomination has not been specified, but it is expected that she would face a Senate confirmation hearing this fall.

Additionally, as previously reported, CPSC acting chairman Ann Marie Buerkle has been nominated by the president to serve as permanent chair. She faces a September 27 Senate confirmation hearing. The Toy Association looks forward to working with both as they embark on their new appointments at the CPSC.

• Final Phthalates Rule Issued
  The CPSC has issued a final rule expanding phthalate restrictions applicable to children’s toys and child care articles sold in the United States. The final rule:

• Restates the Consumer Product Safety Improvement Act’s permanent prohibition of children’s toys and child care articles containing concentrations of more than 0.1 percent of DEHP, DBP, and BBP;

• Continues the interim prohibition of DINP in concentrations greater than 0.1 percent, and expands that restriction to prohibit all children’s toys (not just those that can be placed in a child’s mouth); and

• Prohibits toys and child care articles containing concentrations greater than 0.1 percent of DIBP, DPENP, DHEXP, and DCHP.

The prohibition applies to plasticized component parts or other component parts of the products that are made of materials that may contain phthalates. The Toy Association believes that the toy industry has moved away from using any of the phthalates outlined in the final rule, though toy companies will still have to certify that their products are compliant with the expanded rule.

The Commission will have a live staff briefing on the draft final rule October 11, with a vote following two weeks later. The final rule will take effect 180 days after the vote and publication in the Federal Register.

• CPSC Grants Petition Banning Organohalogens in Four Product Categories
  On September 20, the CPSC voted to grant a petition to initiate rulemaking banning organohalogen flame retardants (OFRs) in children’s products (including toys), mattresses, upholstered furniture, and external casings of electronics. The CPSC will now begin drafting a regulation under the Federal Hazardous Substances Act, and convene a Chronic Hazard Advisory Panel (CHAP) to review the chemicals before a final action is taken, which will likely take several years. The agency also voted to issue a guidance document warning the public of the hazards posed by OFRs and urging manufacturers to stop using them.

To the best of The Toy Association’s knowledge, these flame retardants are not intentionally added to toys; however, they are an essential element of preventing fires from electric and electronic components of toys. The Toy Association submitted comments on behalf of the industry in 2016 urging the CPSC to deny the petition since an acceptable alternative to ensure the safety of these products has not been found.

Toy Association members with questions on these topics are invited to contact Autumn Moore, manager of standards and regulatory affairs.