On Friday, August 7, CPSC issued a Statement of Policy regarding compliance with the phthalates ban in section 108 of the CPSIA, which applies to certain toys and childcare articles. Specifically, CPSC will evaluate a product’s compliance based on whether each of its “plasticized component parts” complies with the standard. This reverses CPSC’s previously proposed interpretation of the provision, as published on February 9, which had provided that a product would be banned only if the phthalates content of the product as a whole exceeded the 1000 ppm limit, rather than the new stricter interpretation requiring that each component part be at or below the limit. In addition, the Statement of Policy provides guidance to manufacturers and importers -- the entities responsible for certifying products -- on deciding whether specific products or components should be tested for phthalates.
New Interpretation of Section 108
In reversing course in its interpretation of section 108, CPSC states that “[t]esting component parts to the phthalates limits established in section 108 is more protective of human health and effectuates the intent of Congress to limit children’s exposure to phthalates.” CPSC asserts that its new interpretation is supported by the statutory language. Specifically, CPSC reasons that section 108 applies both to “toys” and “childcare articles” and their components because (1) Section 108 applies to certain “toys” and “childcare articles,” (2) the definitions of both these terms include the term “consumer product,” and (3) the CPSA defines “consumer product” in part as both an “article” or a “component part” of an article.
Identifying Affected Components
CPSC acknowledges in the Statement of Policy that certain toys and childcare articles may not require testing for phthalates. In that regard, CPSC provides useful guidance on the following issues that many companies have been asking about since the CPSIA was enacted:
(1) Examples of materials and products that may contain phthalates:
- Polyvinyl chloride (PVC) (used in products including toys, floor and wall coverings, household furnishings, building materials, wire and cable insulation, footwear, rainwear, and automobile interiors) and related polymers, such as polyvinylidene chloride (PVDC) and polyvinyl acetate (PVA) -- CPSC notes that these materials should always be tested;
- Soft or flexible plastics, except polyolefins;
- Soft or flexible rubber, except silicone rubber and natural latex; and
- Foam rubber or foam plastic, such as polyurethane (PU);
- Solvents and/or plasticizers in surface coatings, non-slip coatings, finishes, decals, printed designs, air fresheners, and scented products;
- Elastic materials on apparel, such as sleepwear;
- Adhesives and sealants; and
- Electrical insulation.
(Note that while some of the products identified by CPSC -- e.g., floor and wall interiors, building materials, air fresheners and electrical insulation not used as components of toys or childcare articles -- would be outside the scope of section 108, they are covered by California’s Proposition 65.)
(2) Examples of materials that “do notnormally contain phthalates:”
- Unfinished metal;
- Natural wood, except for coatings and adhesives added to wood;
- Textiles made from natural fibers, such as cotton or wool, except for printed decorations or other surface treatments, back coatings, and elastic materials (especially sleepwear);
- Textiles made from common synthetic fibers, such as polyester, acrylic, and nylon, except for printed decorations, waterproof coatings or other surface treatments, and elastic materials (however, any textiles containing PVC or related polymers must be tested);
- Polyethylene and polypropylene (polyolefins);
- Silicone rubber and natural latex; and
- Mineral products such as play sand, glass and crystal.
CPSC goes on to state that “if [a] product or its components contain one of the plasticizers specified in section 108 of the CPSIA, the manufacturer or importer certifying the product must test the component or product to ensure that it complies with the CPSIA.” And, CPSC reminds companies that failure to comply with the phthalates limits section 108 is a prohibited act punishable by civil or criminal penalties.
The Statement of Policy can be found here, and the new test method can be found here.
