The June/July issue of Baby & Kids featured an overview of the Consumer Product Safety Improvement Act, otherwise known as the CPSIA. Read below for the full text from that issue's product safety contributors.
Understanding The Consumer Product Safety Improvement Act Of 2008
TIA Toy Safety Certification Program To Satisfy VCPSIA Testing Requirments
Understanding the Consumer Product Safety Improvement Act Of 2008
by The Juvenile Products Manufacturers Association
On August 14, 2008, Congress enacted the Consumer Product Safety Improvement Act of 2008 (CPSIA), which mandates a comprehensive overhaul of consumer product safety laws. While the full impact of the CPSIA continues to evolve, the effects of the law will be felt by manufacturers, importers, warehousers, retailers, consumers, lenders and all facets of the consumer products industry, particularly the juvenile products industry.
CPSIA is both historic and far-reaching. New certification requirements, phthalate and lead limits, mandatory third-party testing requirements, newly prohibited acts, product labeling and tracking requirements and many other provisions of the law all provoke significant questions and present potential pitfalls to manufacturers, importers, private labelers, distributors, and retailers of consumer products. An eight-fold increase in maximum civil fines coupled with CPSC and U.S. Customs’ authority to seize and destroy imports not in compliance with this new law raises the stakes considerably for companies. The new law also empowers all 50 State Attorneys General to seek enforcement of many federal product safety laws and standards.
All participants in the consumer products industry now face increased risk and scrutiny which will likely result in more frequent consumer product recalls and enforcement actions. The CPSIA directs the CPSC to move quickly to promulgate new safety regulations to implement the Act. Manufacturers, both large and small, have protested the extremely short timelines, the failure to take into account manufacturing processes, and the failure to take into account the breadth of the impact and unintended consequences.
Backlash to Unintended Consequences and Confusion Persists on CPSIA Implementation
Since the legislative language restricted the CPSC from acting with traditional regulatory discretion and the new rules apply retroactively, children’s products, including books and clothing already on the shelf are subject to the legal restrictions. Many small businesses have complained about chaotic implementation and unjustifiable removal of safe, but untested product from retail.
Also ensnared are thrift stores and companies that make products like bikes or children’s books. Many were caught by surprise when it became clear the law would apply to them. The only lead that can be found on children’s bikes is where it poses no risk to a child not in the daily habit of licking the wheels. And while children’s books may contain no more noxious materials than paper and ink, under the new rules they would still be subject to the law.
Responding to the uproar, CPSC issued a stay of testing and certification requirements for one year until February 10, 2010 for the new lead content, toy standards and phthalate restrictions and rule-making notices that would exempt certain textile, natural and other materials from having to be certified as lead-free. Also, the CPSC, aware of erroneous testing, has published phthalate test protocols intended to make it clear that the whole product is considered when testing and published rulemaking notices seeking to better define which products will be regulated and which are not. In the interim, CPSC announced an enforcement policy focused only on products intended to be mouthed, such as bath books, rattles, teethers, and pacifiers.
Provisions of the CPSIA
The law is effective upon enactment, but prospective according to various dates when provisions (i.e., lead, phthalates, testing and certification, tracking information, advertising restrictions) go into effect. The law also contains strong preemption language establishing uniform national standards for lead and phthalates in products. Here is a summary of some provisions the new CPSC regulations are required to implement:
Toy and Juvenile Product Testing: The new law requires mandatory third party safety certification of products made for children 12 and under. Upon CPSC accreditation, private labs could be allowed to test products if they provide equal or greater consumer protection than available third party labs. It also authorizes CPSC personnel to inspect any lab certified under the Consumer Product Safety Act and withdraw accreditation if necessary. The JPMA Certification Program is subject to update and is expected to provide a turnkey solution to these new testing and certification requirements.
Certain Durable Infant Products: The CPSIA specifically identifies certain products that will need to contain product registration cards, which are: full-size cribs and non-full-size cribs; toddler beds; high chairs, booster chairs, and hook-on chairs; bath seats; gates and other enclosures for confining a child; play yards; stationary activity centers; infant carriers; strollers; walkers; swings; and bassinets and cradles.
Phthalates: It also permanently bans the sale of toys and certain childcare articles intended for children under the age of 3 containing trace concentrations of three phthalates: DEHP, DBP, or BBP. The law temporarily bans products containing trace concentrations of DINP, DIDP, or DnOP unless further study and evaluation prompts the CPSC to lift the ban.
Whistleblower Protections: The new law provides whistleblower protections for private sector employees reporting safety issues to the CPSC.
Funding: It authorizes funding levels for the CPSC for five years beginning in 2010 increasing their budget from $80 to $136 million by 2014. As part of the authorization, Conferees directed $25 million toward establishing a public database (see below for additional info).
Quorum: The CPSIA allows a two-member quorum at the CPSC to conduct official business for the one year period beginning on the date of enactment. The CPSC currently is without a quorum and cannot conduct business that requires Commission action such as a mandatory recall. It also restores the Commission to five members instead of three members. President Obama recently announced the appointment of Bob Adler as a Commissioner and Inez Tenenbaum as Chairman. Adler is currently a Professor of Legal Studies at the University of North Carolina at Chapel Hill’s Kenan-Flagler Business School. Prior to joining UNC, he served as Counsel on the Committee on Energy and Commerce where he advised on CPSC legislative and oversight issues under the leadership of Henry Waxman. Prior to that, he spent eleven years (from 1973-1984) as an attorney-advisor to two commissioners at the CPSC. Inez Moore Tenenbaum was elected South Carolina's State Superintendent of Education in 1998 and completed her second term in 2007.
Rulemaking Process: The law streamlines the product safety rulemaking process to be timelier by eliminating a mandatory “Advanced Notice of Proposed Rulemaking” step, though it remains an option for CPSC.
Lead in Substrates: The law bans lead for products manufactured for children age 12 or younger. Specifically, the permissible level of lead in children’s products would be 600 ppm after 180 days, 300 ppm after one year, and 100 ppm after three years following enactment, if feasible. The CPSC is directed to periodically review and lower the limit and also to except inaccessible parts, electronic components and parts that do not pose a human health risk.
Database: Within two years, the CPSC will establish a searchable database to include any reports of injuries, illness, death or risk related to consumer products submitted by consumers, local, state, or national government agencies, child care providers, physicians, hospitals, coroners, first responders, and the media. Upon receiving a complaint, the CPSC has five days to submit the complaint to the manufacturer. The manufacturer then has 10 days to respond. The complaint and manufacturer’s response would then also be posted in the database. The CPSC would have the authority to remove or correct a complaint if it is found to be inaccurate.
Civil Fines: The CPSIA Increases the civil fine penalty cap from $5,000 to $100,000 per individual violation, and from $1.85 million to $15 million for aggregate violations.
Criminal Penalties: It also increases criminal penalties to five years in jail for those who knowingly and willingly violate product safety laws.
Attorneys General: It provides authority for state attorneys general to enforce, but not interpret, consumer product safety laws and act expeditiously to remove dangerous products from shelves.
Labeling: It requires manufacturers to label children’s products with tracking information, using their own product appropriate systems that enable them to better identify recalled products.
Recalled Products: It makes it unlawful for retailers to sell a recalled product.
Supply Chain: It requires companies to identify manufacturers and subcontractors in the supply chain to CPSC.
Export of Recalled Products: It enables the CPSC to prohibit a U.S. entity from exporting a product that does not comply with consumer product safety rules unless the importing country has notified the Commission of its permission.
Import Safety: The CPSIA requires the CPSC to develop a plan to identify shipments of consumer products intended for import into the U.S. Improves information sharing among federal agencies, including U.S. Customs and Border Protection.
Destruction of Noncompliant Imports: Finally, it provides greater CPSC oversight to prevent the entry of unsafe consumer products in the U.S.
Conclusion
The new consumer product safety laws and regulations will dramatically change the way companies do business. There is sure to be greater enforcement action and significant penalties for companies who do not follow the new safety requirements. These requirements will have to be internalized at all levels of the company and to its over-seas manufacturers, factories, raw material suppliers, vendors, importers, and customer base. Companies must rapidly evaluate their entire product lines and incorporate immediate actions to respond to the CPSIA’s legal requirements.
JPMA will continue to strive to ensure an orderly imposition of common sense rules. In addition, JPMA has and will be commenting on dozens of rulemakings and guidance policies to be put forth in 2009 to implement the Act.
Asking The Right Questions
by Jennifer Taggart, consultant, attorney and author, www.thesmartmama.com
Last year, when the Consumer Product Safety Improvement Act (CPSIA) was signed into law, the children’s product market was shocked. Advertised as a way to make toys safe, many were unaware of the law’s far reach until faced with reality that the CPSIA established lead content limits for all children’s products regulated by the Consumer Product Safety Commission (CPSC). Lead content compliance for children’s clothing? Phthalate testing for bedding? Retailers were particularly perplexed by the retroactive nature of the lead content and, after court action, phthalate limits. How could they determine whether existing inventory was compliant? And what were they supposed to do if products in inventory did not comply?
Many thought we would see a quick fix. But, as the law’s one year anniversary approaches, legislative fixes are stalled and regulatory fixes have been relatively limited. It appears that the CPSIA is here to stay.
Companies remain confused about the law and its application. Unfortunately, many companies believe that the CPSC’s stay of the testing and certification requirements was a stay of the law. But that is not the case. The CPSC’s stay of testing and certification requirements did not apply to some product categories, such as lead in paints and coatings for products made after December 21, 2008; lead in metal children’s jewelry manufactured after March 23, 2009; crib standards; pacifier standards; and ban on small parts for products manufactured after February 15, 2009. Those products must meet the required testing and certification. More importantly, the stay of testing and certification did not effective the implementation of the limits. So, children’s products still must meet the limit on total lead for any product or any part of any product of 600 parts per million (ppm), which drops to 300 ppm on August 14, 2009. And, toys and child care articles still must meet the limits for specific phthalates as of February 10, 2009.
If a covered product does not meet these limits, it cannot be distributed in commerce. This puts retailers in a difficult position because they cannot sell non-compliant items. While the CPSIA places primary responsibility for compliance on manufacturers and importers, it also prohibits the distribution in commerce of non-compliant goods. The CPSIA’s lead content limit and phthalate limits are also retroactive, meaning that they apply to goods sold now regardless of when the goods were manufactured. Therefore, retailers must screen for non-compliant products. Ignorance of the law is not an excuse.
How can a buyer ensure compliance? First, a savvy buyer must determine how a particular product is classified under the CPSIA. Is it a children’s product? Is it a toy? Is it a child care article? Is it a durable nursery good? What is required for the product will be determined by the classification so understanding the legal definitions is critical.
The CPSIA defines the term “children’s product” as a product regulated by the CPSC intended or designed primarily for children 12 years of age or younger. Keep in mind that the CPSIA only applies to those products under the CPSC’s jurisdiction. Baby personal care products, for example, are regulated by the Food and Drug Administration as cosmetics and are not subject to the CPSIA. In other words, the term “children’s product” is broadly defined. It includes clothing, toys, children’s bedding, and even decorations intended for children’s rooms. To determine whether a product is a children’s product, keep in mind the factors used by the CPSC:
1. Is the product commonly recognized by consumers as being intended for use by a child 12 years of age or younger?
2. Is there any packaging, labeling, advertising or other material that might indicate the manufacturer’s intention as to the appropriate age grading of the product?
Once you determine if the product is a children’s product, you must figure out if it is also a toy, child care article or durable nursery good. A toy is a product intended or designed primarily for children under the age of 12 for play. So, a child’s t-shirt may just be a children’s product, but if it is intended for and marketed for dress-up play, it may also be a toy.
If it isn’t a toy, it may be a “child care” article. A child care article is a product intended for children under age of 3 that facilitates eating or sleeping. So, crib sheets and baby bibs are children’s products and are also child care articles.
There is also a special category for durable nursery goods, such as cribs, strollers, etc. Products that are durable nursery goods have or will have specific requirements, but such products must also meet the requirements applicable to all children’s products.
Once a buyer has the product properly classified, a buyer can determine whether it complies with the CPSIA. Or at least ask the right questions to figure out whether the product complies.
All children’s products must be in compliance with the total lead content limit of 600 ppm. This limit was effective on February 10, 2009. On August 14, 2009, this limit will drop to 300 ppm. A buyer should make sure that all inventory being acquired now meets the lowered 300 ppm limit. This lead content limit is a separate requirement for the limit on lead in paints and coatings. It is NOT limited to paints and coatings, but applies to each part of a children’s product. It is not averaged across the product. Painted or coated consumer products, including children’s products, must meet the limit of 600 ppm in paints and coatings – a limit that has been in place since 1978. That limit drops to 90 ppm on August 14, 2009.
How can a buyer determine compliance? For painted or coated items, the vendor should have 3rd party certifications for all products made after December 21, 2008. For items that do not have paints or coatings, the testing and certification requirements are stayed. But, a buyer still needs to make sure products comply with the lead content limit. So, a buyer should ask for certificates or assurances of compliance from suppliers. No standard form exists, although the CPSC has a suggested form on its website. It is critical that any testing reports or certifications are based upon total lead in each part of the product, not soluble lead or a determination of accessible lead. The CPSIA’s limits are for total lead. Several companies are providing certificates for crystals, claiming that they comply, but a careful examination of the certificate shows that they are for soluble lead. Many companies are using XRF screening, which is acceptable for children’s products to date. This is an easy screening tool when used properly.
Another option is to be savvy about which products are likely to have lead. The CPSC has issued a no-enforcement policy for certain items, including wood without paint or surface coatings; and clothing, blankets and other items made entirely of dyed or undyed textiles (cotton, wool, hemp, nylon, etc.), dyed or undyed yarn, non-metallic thread, trim, hook-and-loop (Velcro) and elastic. On the other hand, buyers should be careful about zippers, decorative zipper pulls, grommets, eyelets, faux pearls, rhinestones, beads, crystals, treated leather, metallic thread, buttons, screen prints and vinyl (aka PVC or polyvinyl chloride plastic), all of which are frequently found to have limit.
Toys and child care articles, in addition with having to meet the lead content limits for children’s products, must also meet limits for certain phthalates. Phthalates commonly found in vinyl (or PVC). Three phthalates, DEHP, DBP, and BBP, have been permanently banned in concentrations of more than 1000 ppm (0.1%) in children’s toys and child care articles. Further, three other phthalates, DINP, DIDP, and DnOP, have been prohibited in concentrations of more than 1,000 ppm in child care articles and toys that can be placed in a child’s mouth or brought to the mouth and kept in the mouth so that they can be sucked or chewed.
In the absence of test reports, a buyer should recognize that the CPSC has announced it will focus its enforcement efforts on certain items, namely, bath toys, “play” books and other plastic toys (especially those made of PVC or polyvinyl chloride) that are intended for young children and can be put in the mouth and Soft plastic infant and baby products that can be easily grasped. For these items, buyers must make sure that products are supported by statements or certifications of compliance.
Toy Industry Association’s Toy Safety Certification Program to Satisfy CPSIA Testing Requirements
by The Toy Industry Association
The Consumer Product Safety Improvement Act (CPSIA) signed into law last August requires that the Consumer Product Safety Commission (CPSC) initiate a program for toy manufacturers to label product as compliant with strict regulations for lead and phthalates and to establish protocols and standards for ongoing compliance.
Historically, the Commission has recognized industry-created compliance programs rather than imposing its own. Toy Industry Association’s new Toy Safety Certification Program (TSCP) offers a system that satisfies CPSIA and CPSC regulations by providing for effective testing at a reasonable level. The program has three primary requirements:
- The design of a toy must be assessed for safety hazards and risks.
- Producing factories must be audited for adequate process
- Toys are tested during production at a frequency based on the factory’s demonstrated ability to continuously produce compliant product.
Upon successful completion of the applicable requirements (certification), the product or packaging may bear a Toy Safety Mark. This Mark will be controlled by product certification bodies that are overseen by a single accreditation body (ANSI), and authorized by TIA. This Mark will help assure consumers, retailers, government agencies and others that the toy bearing the mark complies with applicable U.S. regulations and consensus safety standards.
Developed by TIA as a direct result of the toy recalls of 2007 and the resulting congressional hearings, political platforms, media coverage, and overall consumer concerns, the TSCP was created to take a proactive stance in developing and promoting a program that applies to toys that are produced for sale in the United States.
The TSCP was developed by a cross-sector panel organized by TIA and comprised of representatives from toy companies, retailers, toy testers, factory auditors, and consumer groups, along with conformity assessment experts and staff of the American National Standards Institute.
The multi-phase launch kicked off with the debut of an electronic platform, the Electronic Certification System a web-based application that – at present – provides domestic manufacturers and importers of toys to the U.S. with a comprehensive way to publish electronic certifications that meet the requirements of the CPSIA. In addition to the General Certificates of Compliance (GCC) that are currently possible, the ECS will eventually serve as an IT backbone for the full TSCP program and its certifications.
Additional phases of the program will be launched throughout 2009. In addition to helping our members become compliant in a new regulatory environment, TIA is confident that the TSCP will help to restore our industry’s reputation and rebuild consumer, government and retailer confidence in the safety of toys.
There is a dedicated website, www.toycertification.org, which provides information on the TSCP’s certification process, governance, timeline and training. Registration for free e-mail updates on program requirements and launch activities is also available via the website.
For additional information about the TSCP, please contact Elizabeth Borrelli (eborrelli@toyassociation.org).
