The Consumer Product Safety Improvement Act (CPSIA), which Congress enacted one year ago, contains several provisions that take effect on August 14, 2009. The CPSC has urged businesses to comply with these new requirements in a press release issued on August 13. The new requirements include:
Lead Content
The limit for lead in children's products under the Federal Hazardous Substances Act (FHSA) drops from 600 parts per million (ppm) to 300 ppm. After August 14, it will be unlawful to manufacture, import, sell, or offer for sale, a children's product that has more than 300 ppm of lead in any part that is accessible to children. The new, lower limit is applicable to those products already in inventory as of August 14. Certain children’s electronic devices are exempt from the lead content limits because of technological infeasibility. For purposes of the lead content limits, a “children’s product” is defined as consumer product intended “primarily” for children 12 years of age and under.
Lead in Paint and Similar Surface Coating Materials
The limit for lead in paint and similar surface-coatings for consumer use drops from 600 ppm to 90 ppm. More specifically, paint in the can, toys and other articles intended for use by children, and furniture articles for consumer use (whether for adults or children), will be banned if they exceed the new 90 ppm limit, absent an exemption in 16 C.F.R. Part 1303. Products subject to the lead paint standard -- including products already in inventory as of August 14, 2009 -- cannot be sold, offered for sale, imported or manufactured after August 14 unless they meet the new limit.
However, soluble limit testing for lead paint under ASTM F963-07 is no longer necessary. The CPSC staff previously explained in an FAQ that, in addition to being tested for compliance with the limits in 16 C.F.R. § 1303.1 on the totallead content, based on the total weight of the non-volatile portion of the paint, toys manufactured after February 10, 2009 would also need to meet the limit imposed by ASTM F963-07 based on the soluble portion of lead. The staff went on to explain that, as of August 14, 2009, the lead paint limit under the CPSIA will be more restrictive than under F963: “Beginning on August 14, 2009, . . . the soluble limit testing for lead paint under ASTM F963-07 will not be necessary because the maximum total lead content in paint will be reduced to 90 ppm in 16 CFR § 1303.1, which would be a more stringent requirement in all cases. It will remain necessary to conduct ASTM F963-07 solubility testing for antimony, arsenic, barium, cadmium, chromium, mercury, and selenium, as those are not covered by 16 CFR § 1303.1.”
Civil Penalties
Civil penalties for violations of the CPSIA, FHSA, and Flammable Fabrics Act (FFA) increase substantially to a maximum of $100,000 per violation and up to a maximum of $15 million for a related series of violations. Previously, civil penalties were a maximum of $8,000 per violation and up to a maximum of $1.825 million for a related series of violations. Moreover, although not addressed in CPSC’s August 13 press release, the Commission has previously taken the position that companies must notify CPSC pursuant to section 15 of the CPSIA if they learn that products sold or offered for sale exceed the new lead limits.
Tracking Labels
Manufacturers (defined in the CPSIA to include an “importer”) must place permanent distinguishing marks (tracking labels) on any consumer product primarily intended for children 12 and younger that is manufactured on or after August 14, 2009. The permanent marks must enable consumers to ascertain the name of the manufacturer or private labeler, the date and location of manufacture, and more detailed information on the manufacturing process such as a batch or run number. The permanent distinguishing marks must appear on the product itself and its packaging to the extent practicable. More information about the tracking label requirement is available here.
Printed Advertisements
In addition to requirements that take effect on August 14, all catalogs and other printed materials distributed on or after August 9, 2009 -- regardless of when they were printed -- and that advertise certain toys and games intended for use by children from three to six years old, must have warnings regarding potential choking hazards to children younger than three. The requirement to include such warnings in Internet advertisements has been in effect since December 12, 2008.
