Comments to CPSC on Engineered Wood Testing Exemption

December 27, 2017

Office of the Secretary
U.S. Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Re: Children’s Products, Children’s Toys, and Child Care Articles: Determinations Regarding Lead, ASTM F963 Elements, and Phthalates for Engineered Wood Products [Docket No. CPSC-2017-0038]

These comments are provided by The Toy Association on behalf of its members in response to the Notice of Proposed Rulemaking published in the Federal Register on October 13, 2017 that would exempt certain engineered wood products from phthalates, lead and heavy metals testing.

By way of background, The Toy Association has a membership of more than 950 businesses – from inventors and designers to toy manufacturers and importers, retailers and testing labs – who are all involved in creating and bringing toys and games to children. Our members produce and sell approximately 90% of the three billion toys sold in the United States each year; the annual U.S. toy market is $26 billion. Since the 1930s, the association has been a leader in the development of toy safety standards, and toy safety has long been the top priority for our members.

Introduction

While the Consumer Product Safety Improvement Act (CPSIA) made significant improvements to consumer product safety, the law also had several unanticipated and unintended consequences that had a negative impact, particularly on small businesses. In passing P.L. 112-28, Congress recognized that relief was necessary and communicated its expectation that the agency work with the regulated community to provide relief while maintaining CPSIA’s strong product safety protections.

We wish to convey our appreciation to the Commission and staff for all the work that has lead to this NPR. The exemptions from testing provided in this NPR, along with the change suggested, will help to further the goal of providing much needed relief from unnecessary testing burdens that our members have had to bear for over seven years now. As we have stated many times before, exemptions from expensive phthalates testing provides the most relief. However, this rule goes even further and exempts testing from lead, as well as the other heavy metals listed in ASTM F963. This kind of relief is very helpful, especially to smaller manufacturers. We hope to see more burden reduction efforts of this kind, that exempt all unnecessary chemical testing, in the future.

Recommended Changes to NPR

Before the rule is finalized, we have one important recommended change that is necessary to provide the burden reduction relief intended by the rule and without which the relief from the proposed rule exemptions could be offset. The proposed sentence in 16 CFR Part 1252, Section .3(e) reads as follows:

Accessible component parts of children’s products, children’s toys, and child care articles made with engineered wood products not listed in paragraphs (a)-(c) of this section are required to be third party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.

This last sentence of the NPR appears to negate the flexibility afforded in the 2009 Statement of Policy¹ document on phthalates. Congress recognized that phthalates (which are a type of plasticizer) are intentionally added to materials and thus some materials will not contain phthalates. Congress therefore limited the application of the phthalate standard to only component parts that have had a plasticizer added to it or to component parts that could contain phthalates.

If the NPR is finalized as is, this sentence could increase testing costs for some companies, specifically to those who have been able to take advantage of the flexibility granted in the 2009 Statement of Policy document. In our set of comments issued June 17, 2013 and again on October 13, 2016 we expressly stated: “It should be noted that the flexibility granted by the CPSC’s Statement of Policy should be maintained.” We stand by this statement and ask CPSC to instead amend the language in 16 CFR Part 1252, Section .3(e) to state:

Accessible component parts of children’s products, children’s toys, and child care articles made with engineered wood products not listed in paragraphs (a)-(c) of this section must still be comprised of compliant materials pursuant to section 108 of CPSIA, Public Law 110-314 as amended by H.R. 2714, Public Law 112-28.

We feel this change to the above recommended language will reflect Congressional intent and stay consistent with CPSC phthalate testing policy that has been effectively used by some companies to eliminate phthalate testing on materials known to be compliant. Perhaps most importantly, the language will keep manufacturers responsible for knowing what is in, and what is not in, their products while also allowing them discretion on how to comply with the testing requirements mandated by CPSC and set forth in 16 CFR 1107.

We would again emphasize that any regulation not impact the flexibility granted by the Statement of Policy issued in 2009 that allows suppliers with extensive knowledge of their supply chain to use their discretion when determining which materials to test.

Conclusion

Thank you again for the opportunity to comment. We are pleased to see testing burden reduction efforts at CPSC have been fruitful and hope the agency will continue to find ways to reduce these redundant and unnecessary testing burdens, while assuring compliance. We would encourage the agency to amend the language in the NPR to not be exclusive to this list, but to maintain flexibility for those with intimate knowledge of their supply chains.

We recognize toy manufacturers are rightfully held to a higher standard because we produce play things for our youngest consumers. We take our responsibility seriously and our members work to ensure standards are always met, as they continue to bring new and innovative products to market. We look forward to continuing to work with staff to consider other ways to reduce burdens. Toy safety is the number one priority for our members and we fully support efforts to ensure product safety, while minimizing costs by eliminating unnecessary third party testing.

Thank you again for your consideration. If you would like to follow up with us contact Autumn Moore, at amoore@toyassociation.org or 202.459.0350 in our Washington, DC office.

Sincerely,

Steve Pasierb
President & CEO

¹ Statement of Policy: Testing of Component Parts With Respect To Section 108 of the Consumer Product Safety Improvement Act, found on December 16, 2017 at: https://cpsc.gov/s3fs-public/pdfs/blk_media_componenttestingpolicy.pdf