Transcript Consumer Product Safety Improvement Act of 2008

WELCOME TO UNDERSTANDING THE CPSIA,
PART 2
The Webinar will begin at
2:00 p.m. (MST)
Consumer Product Safety Improvement
Act of 2008 :
What’s New!
February 26, 2009
Alan R. Klestadt, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
399 Park Avenue, New York, N.Y. 10022
Tel.: 212-973-7722 • Fax: 212-557-4415
e-mail: [email protected]
Understanding the CPSIA, Part 2 Will Cover:
• Latest Developments and New Regulations That May Impact Your
Business
• Definition of “Consumer Product”
• The CPSC’s Delay on Testing Requirements
• CPSIA and Children’s Products and Toys
• CPSC Product Determinations
• Tracking Labels for Children’s Products
Consumer Product Safety Improvement Act of 2008
Legislative Highlights:
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Enacted on August 14, 2008
Imposes a compliance certification requirement
Defines “children’s product” (12 years or younger)
Decreases allowable lead paint limit
New lead substrate standard
New phthalate standard
Requires accredited 3rd pty testing for children’s products
New tracking label required for children’s products
Consumer Product Defined
• An article or component of an article which is
customarily produced or distributed for sale to or for
the personal use, consumption or enjoyment of
consumers in a residential, school, recreational or
other environment.
• Definition does NOT include a product intended for
commercial or industrial use UNLESS it is sold to or
used by consumers more than occasionally.
CPSIA – What’s New?
• CPSC has announced a limited stay of enforcement
for certain provisions of the CPSIA.
• It has been determined that the phthalates ban and
new lead standards apply to existing inventory.
• CPSC has issued guidelines for obtaining product
exclusions under the CPSIA.
• CPSC has issued a proposed rule on inaccessible
component parts for children’s products containing
lead.
• CPSC has requested comments on the tracking
label requirement.
Stay of Enforcement
CPSC has stayed the applicability of the testing and certification
requirements for all products subject to a CPSC safety rule with the
exception of:
• The requirement to use 3rd party labs to test and certify
compliance with:
• The lead paint standard for products manufactured after 12/21/08.
• Requirements applicable to cribs and pacifiers for products
manufactured after 1/20/09.
• Small parts requirements effective for products manufactured after
2/15/09.
• Requirements for lead content in children’s metal jewelry for
products manufactured after 3/23/09.
• Any existing CPSC regulation as it existed prior to amendment by
the CPSIA (e.g., bike helmets, lighters, mattresses, etc.).
• The Pool & Spa Safety Act; certifications for ATVs.
The stay of enforcement will remain in effect until at least 2/10/10.
Stay of Enforcement
Most significantly, this action stays the requirements
for testing and certification applicable to
manufacturers and importers with regard to the lead
content standard (lead in substrate), the phthalates
standard and wearing apparel flammability. Thus, it
is not required to test inventory or goods in
production for compliance with these product safety
standards. Likewise, it is not required to issue
certificates of compliance, except as previously
noted.
Mandatory Third Party Testing and Certification for
Certain Children’s Products
Remains in effect for the following items:
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Lead Paint: The CPSC published notice for lead paint 3rd party
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Small Parts: Any children’s product covered by the small parts
testing on 9/22/08. Therefore, any children’s product containing paint
or surface coatings and manufactured after 12/21/08 must be
tested by an accredited third party lab and the importer must issue a
certificate of compliance with the lead paint ban based on that
testing.
regulations and manufactured after 2/15/09 must be tested by an
accredited third party lab.
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Children's Metal Jewelry: The testing and certification requirement
will take effect for goods manufactured after 3/23/09.
Stay of Enforcement
The stay does not permit or validate the sale of products
that do not comply with all applicable mandatory safety
standards. Failure to comply with such standards,
including the new lead content and phthalate limits, is
still prohibited.
Lead and Phthalates in Children’s
Products
• Effective 2/10/09, it is illegal to sell or
distribute children’s products with excessive
levels of phthalates or which contain more
than 600 ppm of lead in the substrate or in a
surface coating.
• What is the impact on existing inventory?
Definition of “Children’s Product”
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A consumer product designed or intended primarily for children 12
years of age or younger.
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The CPSC will consider the following factors to determine whether a
consumer product falls under this definition:
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A statement by a manufacturer about the intended use of such
product, including a label on such product if the statement is
reasonable.
Whether the product is represented in its packaging, display,
promotion, or advertising as appropriate for use by children 12 years
of age or younger.
Whether the product is commonly recognized by consumers as being
intended for use by a child 12 years of age or younger.
The Age Determination Guidelines issued by the CPSC staff in
September 2002, and any successor to such guidelines.
Lead in Children’s Products
There are two different lead standards that must by
complied with:
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(1) The General Lead Ban (New Standard) limits the amount of lead
in all children’s products, and
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(2) The Lead Paint Ban (Current Standard) lowers the limit with
regard to lead in paint as well as certain consumer products
containing lead paint.
Lead in Children’s Products
General Lead Ban (Lead in the substrate)
– Rule: Any children's product that contains more lead than the
established limit is a banned hazardous substance under the Federal
Hazardous Substances Act.
– Lead Limits: The total lead content by weight for any part of the product
cannot exceed:
– 600 Parts per Million - Effective date: 2/10/09
– 300 Parts Per Million - Effective Date: 8/14/09
– 100 Parts Per Million - Effective Date: 8/14/11
Lead in Children’s Products
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General Lead Ban: Exceptions:
– Inaccessible Component Parts – the lead limits do not apply to any component
part of a children's product that is not accessible to a child through normal and
reasonably foreseeable use and abuse, as determined by the CPSC.
– A component part is not accessible if it is not physically exposed due to a sealed
covering or casing and does not become physically exposed through reasonably
foreseeable use and abuse of the product. Reasonably foreseeable use and
abuse includes swallowing, mouthing, breaking, or other children's activities, and
the aging of the product. Paint, coatings, or electroplating are not considered
barriers that would render lead inaccessible to a child.
– CPSC has issued a proposed interpretative rule with respect to what product
components or classes of components will be considered to be inaccessible and
the methodology for making that determination. Public comments were due by
2/17/09.
– No testing or certification requirement until 2/10/10.
Lead in Children’s Products
Lead Paint Ban (16 CFR 1303)
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Currently 600 ppm and covers the following products:
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Lead Paint and Similar Surface coatings for consumer use
Toys and other articles intended for use by children that bear lead containing paint
Furniture articles for consumer use that bear lead containing paint.
Effective 8/14/09 - The allowable lead limit is lowered from 600 ppm to 90 ppm
of the weight of the total nonvolatile content of the paint or the weight of the
dried paint film.
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Composite Testing
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Cannot combine different paints;
Can combine like paint from several parts to obtain a sufficient sample size
Mandatory 3rd Party testing: any children’s product manufactured after
12/21/08 must be tested by an accredited third party lab for lead paint and is
subject to a compliance certification requirement.
Phthalates
Effective Date: 2/10/09
Any children's toy or child care article that contains
concentrations phthalates of more than 0.1 percent is
banned from manufacture for sale, sale, distribution in
commerce and importation into the United States.
This ban applies to existing inventory, regardless of
when the product was manufactured.
Definition of “Children’s Toy”
• Section 108 of the CPSIA defines a “children’s toy” as a
“consumer product designed or intended by the manufacturer for
a child 12 years of age or younger for use by the child when the
child plays.” Any determination as to whether a particular product
is designed or intended for use by a child 12 years of age or
younger during play will be made after consideration of the
following factors:
• Whether the intended use of the product is for play, including a
label on the product if such statement is reasonable.
• Whether the product is represented in its packaging, display,
promotion or advertising as appropriate for use by the ages
specified.
• Whether the product is commonly recognized by consumers as
being intended for use by a child of the ages specified.
• The Age Determination Guidelines issued by the Commission
staff in September 2002, and any successor to such guidelines.
Are Sporting Goods “Children’s Toys”?
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The CPSIA makes ASTM F963 a mandatory CPSC standard and this toy safety standard
excludes the following articles from the definition of “children’s toys:”
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Bicycles
Tricycles
Sling shots and sharp-pointed darts
Playground equipment
Non-powder guns
Kites
Art materials, model kits, and hobby items in which the finished products is not primarily of
play value
Sporting goods, camping goods, athletic equipment, musical instruments, and
furniture, except for toy versions of these
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Powered models of aircraft, rockets, boats, and land vehicles
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Regulation-size baseballs, basketballs, footballs, and soccer balls are athletic
equipment and, therefore, are also excluded by ASTM F963. Accordingly, even if they
are designed or sized for use by children, the CPSC has proposed to exclude them
from the CPSIA section 108 requirements.
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In contrast, the CPSC has regarded general purpose balls as toys and therefore,
subject to the requirements of the CPSIA section 108. A toy version of actual athletic
equipment, such as a toy baseball glove with a foam ball would be considered to be
a toy for the purpose of the CPSIA. A plastic bat and ball used by small children
would also be considered to be a toy.
The General Wearing Apparel Flammability
Standard
All wearing apparel is subject to the general wearing apparel flammability standard
as set forth in 16 CFR 1610.
Exemptions from the Standard:
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Hats
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Gloves
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Footwear
Certain Fabrics Exempt from Testing
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Plain surface fabrics, regardless of fiber content, weighing 2.6 ounces per
square yard or more; and
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All fabrics (both plain surface and raised-fiber surface) regardless of weight,
made entirely from any of the following fibers or entirely from a combination of
these fibers: acrylic, modacrylic, nylon, olefin, polyester, and wool.
CPSC Product Determinations
CPSC is willing to consider scientific evidence that a
commodity, class of materials, specific material or
product does not exceed the lead limits, OR, if it does
exceed the allowable limits, that such item will not result
in the absorption of lead into the body or otherwise have
an adverse impact on public health or safety.
CPSC Product Determinations
A request for a lead content determination or exclusion
must include:
• data on the lead content of the item in question;
• detailed information on the manufacturing processes through which lead
might be introduced into the product;
• explanation of the test methods relied upon;
• best available, objective, peer-reviewed scientific evidence supporting
the request to demonstrate that the normal and reasonably foreseeable
use and abuse activity by a child and the aging of the product will not
result in the absorption of any lead into the body or otherwise have an
adverse impact on health or safety.
• best available, objective, peer-reviewed scientific evidence that is
unfavorable to the request.
The submission of any such request will not
automatically stay the enforcement of any applicable
CPSC statute or regulation.
Tracking Labels for Children’s Products
Rule: The manufacturer of a children's product must place permanent
distinguishing marks on the product and its packaging, to the extent practicable,
that will enable the manufacturer and ultimate purchaser to ascertain the
manufacturer or private labeler, location and date of production of the product,
cohort information (including the batch, run number, or other identifying
characteristic).
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The CPSC has advised that this rule applies to all children’s products, including,
but not limited to, items such as clothing or shoes and not just toys and other
regulated products.
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“To the extent practicable”: it may not be practical for permanent distinguishing
marks to be printed on small toys and other small products that are manufactured
and shipped without individual packaging.
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Requirement for Advertisements- If an advertisement, label or packaging
references a CPSC rule or standard, there also must be a statement that the
product conforms with the applicable safety rule or standard.
Effective for all children’s products manufactured on or after
8/14/09.
Tracking Labels for Children’s Products
CPSC has requested industry comments by 4/27/09 with
regard to the following issues to help formulate the final
standard:
• how to define the term ”practicable;”
• how to define the term “permanent” (can the required information
be placed on the package rather than the product itself?);
• should the CPSC accept symbols, alpha numeric codes or bar
coded information?
• should the name of the manufacturer be disclosed to the
consumer or made available only upon request?
• should the CPSC require standardized nomenclature? If so, how
much lead time is required for compliance?
Questions
For more information, please contact:
Alan R. Klestadt, Esq.
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
399 Park Avenue, New York, N.Y. 10022
Direct: 212-973-7722
Main: 212-557-4000
Fax: 212-557-4415
e-mail: [email protected]
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