Consumer Advertising Law Blog

CPSC: Ties are Drawstrings, Too

On July 19, 2011, the US Consumer Product Safety Commission (CPSC) issued a final rule determining that CPSC will consider certain children’s garments with drawstrings to present “substantial product hazards” under the Consumer Product Safety Act. The affected garments are children’s upper outerwear (e.g., jackets, sweatshirts) that do not meet the applicable ASTM F 1816-97 industry standard because the garments:

• are sized 2T to 12 or the equivalent, and have neck or hood drawstrings; or
• are sized 2T to 16 or the equivalent, and have waist or bottom drawstrings that (a) extend more than three inches out of the drawstring channel when the garment is expanded to its fullest width, (b) are not “bartacked” at the midpoint so the string cannot be pulled through its channel, or (c) have toggles or knots at the end.

CPSC has concluded that such drawstrings can catch or become entangled with objects, such as a car door or playground slide, posing dragging or strangulation hazards to children.

That part of the final rule is not news, as CPSC has long addressed drawstrings on children’s upper outerwear. In 1996, CPSC issued recommended drawstring guidelines, which were incorporated a year later into the ASTM industry standard (ASTM F 1816-97). In 2006, CPSC’s Office of Compliance announced that children’s upper outerwear not meeting the industry standard would be regarded as presenting a “substantial risk of injury to young children” and thus as reportable under section 15 of the Act. CPSC has since announced more than 100 drawstring recalls, and CPSC has penalized dozens of companies for allegedly failing timely to notify CPSC under section 15. For example, on July 11, 2011, CPSC announced that a major retailer agreed to pay a civil penalty of $750,000 for such alleged reporting violations.

What may come as a surprise is that CPSC has also chosen to view “ties” as “drawstrings,” even if they do not pass through a channel. As Chairman Inez Tenenbaum noted in her signing statement, the common industry understanding has been that ties that do not pass through a channel are outside the scope of the industry standard. That understanding is consistent with the language of the standard itself, which references a “channel” in the definitions of “bartack” (3.1.1) and “toggle” (3.1.7), and in the performance requirement that drawstrings at the waist not extend more than three inches “outside the drawstring channel” (4.2.1). However, CPSC states in the preamble to the final rule that the ASTM definition is not “limited to cords, ribbons, or tapes that pass through a channel” and “does not exclude ties.” Further, according to Chairman Tenenbaum’s statement, CPSC “long has understood that such ties are drawstrings [as] evidenced by our recall and other enforcement efforts,” and the Commission believes that “ties pose the same risks [as drawstrings] regardless of whether they pass through a channel.”

Thus, companies face recalls and late reporting penalties for children’s upper outerwear with drawstrings -- including ties that do not pass through a channel.

- Eric Rubel and Jennifer Frericks

CPSC Staff: Lead Level for Children’s Products Can Drop to 100 ppm Effective August 14, 2011

The Consumer Product Safety Improvement Act provides that the lead substrate level for children’s products will drop from 300 ppm to 100 ppm, effective August 14, 2011, unless CPSC finds that the 100 ppm level is not feasible.  On June 22, in a long awaited briefing package, the staff recommended that the Commission find that the lower limit is not infeasible.  In addition, consistent with a 9/12/08 advisory opinion of CPSC’s General Counsel, the briefing package provides that the new requirement will be retroactive:  “To the extent that children’s products that do not comply with the 100 ppm standard remain on the shelf or in inventories after the August 14, 2011 effective date, these items would need to be removed prior to sale.”  A meeting for the Commission to vote on the recommendation is set for July 13, 2011 -- just 4 weeks before the effective date of the new limit.  It remains to be seen whether Congress will take action to address the lead limit or other issues with the CPSIA.

- Eric Rubel

Like Motherhood and Apple Pie: Consumers Union Survey and the Push to Reform the Consumer Product Safety Improvement Act

On February 16, Consumers Union released the results of a new national telephone poll on product safety issues, sending it to members of Congress as they prepared for a hearing the following day by the House Energy and Commerce Committee’s Subcommittee on Commerce, Manufacturing and Trade on the Consumer Product Safety Improvement Act (CPSIA) and Consumer Product Safety Commission’s (CPSC) resources.

According to the poll, the “vast majority of consumers (98%) agreed strongly or somewhat that the federal government should play a prominent role in improving product safety.” That conclusion was based on the results of several questions, such as:

• 95% agreed that “the federal government should require testing by manufacturers of children’s products like jewelry, pacifiers, and toys to ensure they do not contain any harmful substances.”
• 94% agreed that “the federal government should require testing by manufacturers of products like baby carriers or slings, cribs, and strollers to ensure their safety.”
• 91% agreed that the federal government should set safety standards for all children’s products.
• 82% said they were interested in the ability to access a database maintained by the government where people can report and search safety problems with consumer products.

The survey results indicating strong public support for federal government involvement in consumer product safety issues was released in the midst of an ongoing debate about the challenges the CPSIA-mandated product safety requirements and initiatives are posing to industry, including increased testing, reengineering and administrative costs that can cripple companies or drive them out of business, and the prospect of defending their products’ reputations after CPSC launches a public database of unconfirmed consumer complaints on March 11.

Unverified Safety Complaints about Products, Coming Soon to the Web at SaferProducts.gov

On March 11, 2011 the Consumer Product Safety Commission (CPSC) will launch a publicly available database that will allow consumers and others to submit reports of harm -- i.e., reports of injury, illness, or death, or risk thereof -- related to the use of a consumer product or substance within the jurisdiction of CPSC (Reports). (A trial “soft launch” of the Database began on January 24, 2011.) A Report that contains the required minimum information and the submitter’s verification of truth and accuracy and consent to publish will be posted in the Database 10 days after CPSC sends the Report to the product’s manufacturer (defined to include an importer) or private labeler (hereafter, “Manufacturer”), unless CPSC determines during that time period that the Report is materially inaccurate or contains confidential commercial information.

Consumers will be able to search the Database and review safety information about products they own or may be considering buying, and anyone -- including consumer advocates and plaintiff’s counsel -- will be able to download Reports for review and analysis. The validity of the information is not assured, however, and the public may simply assume that Reports are true and accurate despite a disclaimer from CPSC. Further, the submitter’s allegations will appear in the Database unchallenged and unsubstantiated -- unless the Manufacturer chooses to publish comments with the Report, contact the submitter to attempt to verify the Report, and/or object to inclusion of information as materially inaccurate or confidential.

What should companies do to prepare for the launch of the Database?

• Decide whether to register with CPSC to receive e-mail notification of Database Reports and to provide any comments or objections through the Business Portal that CPSC has established. Electronic notification maximizes the time available for the Manufacturer to verify and respond to the Report before it is published, because the deadline for CPSC to publish a Report starts when CPSC sends it, rather when the Manufacturer receives it. If a Manufacturer does not register, CPSC will send Reports by US mail to the firm’s principal place of business, and the Manufacturer could have considerably less than 10 days to respond before publication. In addition, submitting comments and objections through the Business Portal will help ensure that they are timely received and considered by CPSC before CPSC posts a Report to the Database.
• Identify who will be the primary contact person and backup(s) to receive Reports. The primary contact person and additional users will receive e-mail notifications containing the incident descriptions in the Reports and will be able to view the full Reports through the Business Portal. The primary contact person can specify which additional users may submit responses on behalf of a company.
• Decide whether to identify for CPSC your company’s brands or those under which you manufacture for others. Providing such information to CPSC will help to assure that Reports are sent to the correct manufacturer or private labeler for review and response.
• Consider whether, as a matter of policy, your company will respond, even absent an objection for material inaccuracy or confidentiality, (a) on a case-by-case basis, or (b) almost always, and whether the company will consent to CPSC’s posting of the company’s comments to the Database. These options can have significant legal implications in product liability litigation that should be considered in advance.
• Create a process and timeline for internal review of Reports, to decide whether to contact consumers to verify information in the Reports (if the consumer consents to CPSC providing his/her contact information to the Manufacturer), to draft comments and assertions of material inaccuracy or confidentiality, to decide whether to consent to CPSC’s public disclosure of such comments or objections, and to submit objections and comments to CPSC.
• Plan to consider Database Reports along with other available information about a product when determining whether there is a duty to notify CPSC under section 15 of the CPSA.

- Eric Rubel & Jennifer Karmonick

CPSC Interprets Definition of “Children’s Product”

On October 14, 2010, the Consumer Product Safety Commission (CPSC) published in the Federal Register a final interpretive rule defining the term “children’s product,” a key term under the Consumer Product Safety Improvement Act of 2008 (CPSIA). “Children’s products” are subject to strict requirements under the CPSIA—lead content limits, certification by the importer or domestic manufacturer based upon safety testing by a third-party laboratory, and tracking labels. Therefore, companies have been grappling with and seeking clarification about what is and is not a “children’s product” under the law since the CPSIA became law on August 14, 2008. Whether the interpretive rule provides the necessary guidance is open to question even among the CPSC commissioners. Chairman Inez Tenenbaum and commissioners Robert Adler and Thomas Moore voted to adopt the rule, while the two Republican commissioners, Nancy Nord and Anne Northup, voted against the rule, claiming that it fails to provide necessary clarification and, in some cases, goes too far in what will be deemed to be a children’s product.

The CPSIA defines a “children’s product” as a “consumer product designed or intended primarily for children 12 years of age or younger.” In contrast, CPSC has defined “general use product” as a consumer product “designed or intended primarily for consumers older than age 12.” General use products may include those with which a “child would not likely interact” or those with which “consumers older than 12 would be as likely, or more likely to interact.” Four statutory factors must be considered “together as a whole” to determine whether a product is primarily intended for a child 12 years or younger.

The four factors are:

• A statement by a manufacturer about the intended use of such product, including a label on such product if such 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 younge.
• 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.

The statutory factors focus on whether a product is “for use” by children 12 years of younger, i.e. whether children will physically interact with the product, based on the “reasonably foreseeable use” of the product.

Those seeking certainty from CPSC on what constitutes a “children’s product” may well be dissatisfied by the case-by-case approach that remains under the final rule. However, the majority evidently felt constrained by the CPSIA’s requirement that determinations of whether a product is a “children’s product” be based upon an evaluation of the four statutory factors, and ultimately erred on the side of retaining flexibility to address products individually rather than making categorical determinations in the rule. While the final rule is an important chapter in defining the term “children’s product,” this remains an evolving standard. The published final rule is available here.

A more detailed summary of the interpretive rule and examples from the rule of items likely to be considered “children’s products” or “general use products” is available here.

- Eric Rubel and Jennifer Karmonick

Just How Painful is This Going to Be? CPSC Speaks Out on Calculating Civil Penalties

The maximum civil penalty under the Consumer Product Safety Improvement Act for violations of CPSC enforced requirements is now $15 million.  On March 10, 2010, CPSC issued a final rule interpreting the factors used to determine the amount of a civil penalty (see the press release here).  The final rule preserves CPSC’s authority to determine penalty amounts based on a case-by-case assessment of the facts and its discretion to seek substantial penalties where CPSC believes they are warranted. Given the severity of the potential penalties and the risk that CPSC will feel compelled to use its enhanced authority, it is important for companies to understand the civil penalty factors, which are discussed in more detail here.

- Eric Rubel

UPCOMING WEBINAR: Searle Study on State Consumer Protection Litigation

The editors of the Consumer Advertising Law Blog would like our readers to know about an upcoming event that may be of interest to you, a panel discussion of the Searle Civil Justice Institute (SCJI) Preliminary Report on State Consumer Protection Acts (CPAs): An Empirical Investigation of Private Litigation. (See below for key findings of the report)

The event will be held on Monday, March 8, 2010 at noon eastern. It is sponsored by the ABA Antitrust Section Private Advertising Litigation Committee and by Northwestern School of Law. The panel will be held by phone and webinar and also offered in person at Arnold & Porter LLP’s Washington, DC office. To join us in person, please email keena.pearsall@aporter.com. To register to join the teleconference, click here.

The preliminary report was published in December. The panel will discuss the report, the methods used, and the next steps for the project.

Panelists at the event will include:

• Henry Butler, Executive Director, Searle Center in Law, Regulation & Economic Growth, Northwestern School of Law
• Geoffrey Lysaught, Director, SCJI, Northwestern School of Law
• Jodie Bernstein, Of Counsel, Kelley Drye, former FTC Director of Consumer Protection
• Fern O’Brian, Partner, Arnold & Porter LLP and Chair of SCJI Board of Overseers
• Teresa Schwartz, J.B & Maurice C. Shapiro Professor (Emeritus) of Public Interest Law, George Washington University Law School

Following are the key findings of this interim report:

• Litigation under CPAs has increased dramatically since 2000: Between 2000 and 2007 the number of CPA decisions reported in federal district and state appellate courts increased by 119%. This large increase in CPA litigation far exceeds increases in tort litigation as well as overall litigation during the same period.
• Vague statutory definitions of prohibited conduct are a major driver of CPA litigation: Whether a CPA statute has vague language prohibiting some general type of conduct rather than a specific list of illegal actions is an important potential contributor to the level of CPA litigation in the state. States with vague definitions of prohibited conduct have more CPA litigation.
• CPAs are becoming more favorable and generous to consumer litigants: Between 1995 and 2007, the expected value of recovery for potential plaintiffs increased dramatically as measured by CPA requirements to bring a cause of action and available remedies. In 2004, the state CPAs that were the most favorable to plaintiffs were New Hampshire, Massachusetts, and Connecticut. The states with CPAs that were the least favorable to plaintiffs were Colorado, Maryland, and Georgia.
• States with CPAs that are more favorable to consumers have more CPA litigation: The expected value of recovery under a given state’s CPA appears to contribute to the amount of litigation that makes use of the act. States that allow more generous remedies and make it easier for consumers to win in court see more CPA litigation.
• Most CPA claims would not constitute illegal conduct under FTC consumer protection standards. The Searle Shadow FTC found that 78% of a sample of CPA claims would not constitute legally unfair or deceptive conduct under FTC policy statements. While relatively few CPA claims would constitute illegal conduct under the FTC standard (22%), even fewer (12%) would result in FTC enforcement.
• Almost 40% of CPA claims where the consumer plaintiff prevailed at trial would not constitute illegal conduct under FTC consumer protection standards: In a sample of CPA claims where the consumer plaintiff prevailed in court, the Searle Shadow FTC found that 38% of these successful claims would not constitute illegal conduct under the FTC standard. Although most of these successful cases would meet the FTC illegality standards, only 23% would likely be enforced by the FTC.

UPCOMING WEBINAR: Consumer Products: Avoiding the Crossfire Between State and Federal Regulation

The editors of the Consumer Advertising Law Blog wanted to let our readers know about an upcoming webinar that may be of interest to you, entitled, "Consumer Products: Avoiding the Crossfire Between State and Federal Regulation". [Full disclosure: Our firm, Arnold & Porter LLP, is sponsoring the event]

In recent years, state legislatures and regulatory agencies have taken a more active role in regulating consumer products as varied as light fixtures, mattresses, candy, jewelry, auto parts, toys, and antiperspirants. At the same time, federal agencies, such as the Consumer Product Safety Commission (CPSC), are becoming more active. Manufacturers and retailers alike must attend to increasing differences among these requirements, with potentially expensive consequences. This seminar will review major new requirements, provide an update on California Proposition 65, and discuss practical approaches to compliance.

Panelists at the event will include: 

• Eric Rubel, Partner, Arnold & Porter LLP, Former General Counsel, CPSC
• Harrison Pollak, California Deputy Attorney General
• Robert Scofield, D.Env., MPH, Principal Scientist
• Trenton Norris, Partner, Arnold & Porter LLP

The event will take place from 8:30 AM to 10:30 AM PST on March 16, 2010. The event is being offered both in person at Arnold & Porter LLP's San Francisco office as well as via webinar. For more information, please click here for an RSVP link.

CPSC Modifies Stay of Enforcement on Testing and Certification

Earlier this year CPSC stayed enforcement of the CPSIA testing and certification requirements for most but not all standards. Today, CPSC announced decisions to lift the stay of enforcement on testing and certification requirements as to certain standards and to keep the stay in place as to other standards. (A link to CPSC’s press release can be found here.

Changes to the stay are identified below, grouped by when the stay will be lifted as to particular standards. However, remember that products must comply with all applicable standards, even if the testing and certification requirements have been stayed.

Ready or Not for the New Year -- Illinois Lead Labeling Law Effective 1/1/2010

Effective January 1, 2010, an onerous labeling requirement goes into effect in Illinois for toys with surface coating, children’s jewelry, and child care articles that contain between 40 and 300 ppm lead. The 40 ppm limit is well below the federal standard, and Illinois has not yet adopted implementing regulations. Yet, the effective date is upon us. A summary of the requirement follows.

Warning Requirement for Specified Children’s Products

An amendment to Illinois’ Lead Poisoning Prevention Act (“ILPPA”) adds a warning requirement for certain children’s products that contain more than 40 ppm lead. Specifically, “[e]ffective January 1, 2010, no person, firm, or corporation shall sell, have, offer for sale, or transfer [‘children's jewelry,’ ‘child care articles,’ or ‘toys containing paint’] that contain a total lead in any component part of the item that is more than 0.004% (40 parts per million) but less than [300 ppm].”

ILPPA Definitions

“Children's jewelry” means jewelry that is made for, marketed for use by, or marketed to children under the age of 12 and includes jewelry that meets any of the following conditions:

(a) represented in its packaging, display, or advertising as appropriate for use by children under the age of 12;

(b) sold in conjunction with, attached to, or packaged together with other products that are packaged, displayed, or advertised as appropriate for use by children under 12;

(c) sized for children and not intended for use by adults; or

(d) sold in any of the following places: a vending machine; a retail store, catalogue, or online Web site in which a person exclusively offers for sale products that are packaged, displayed, or advertised as appropriate for use by children; or a discrete portion of a retail store, catalogue, or online Web site in which a person offers for sale products that are packaged, displayed or advertised as appropriate for use by children.

“Child care article” means an item that is designed or intended by the manufacturer to facilitate the sleep, relaxation, or feeding of children under the age of 6 or to help with children under the age of 6 who are sucking or teething. The definition of “child care article” is broader under the ILPPA than under the CPSIA in that the ILPPA (1) includes facilitation of “relaxation” and (2) covers children up to 6 years old rather than 3 years old.

“Toy containing paint” means a painted toy designed for or intended for use by children under the age of 12 at play. In determining whether a toy containing paint is designed for or intended for use by children under the age of 12, the following factors shall be considered:

(a) a statement by a manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable;

(b) whether the product is represented in its packaging, display, promotion, or advertising as appropriate for children under the age of 12; and

(c) whether the product is commonly recognized by consumers as being intended for use by a child under the age of 12.

Thus, while the labeling requirement applies only to toys that have lead in surface coating, the requirement applies to both the surface coating and substrate of children’s jewelry and child care articles.

Content and Placement of the Warning Statement

The ILPPA specifies the content, appearance and placement of the warning statement, requiring that it “contain at least the following: ‘WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD.’” The ILPPA makes the manufacturer or importer of record responsible for compliance with the warning requirements. The law requires that the warning statement must be “provided on the children's product or on the label on the immediate container of the children's product.” The law further specifies that “ the statement shall be located in a prominent place on the item or package such that consumers are likely to see the statement when it is examined under retail conditions.”

- Eric Rubel and Jennifer Karmonick

CPSC Recommends Much Needed Guidance, But Will it Stick?

On November 5, 2009, the U.S. Consumer Product Safety Commission (CPSC) published a draft statement of policy providing guidance on the testing and certification requirements of section 102 of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The draft has been presented to the commissioners for ballot vote, and if approved will be published as a formal statement of policy.

Manufacturers and importers -- who have been struggling to comply with CPSIA requirements in the absence of regulations or sufficient guidance from CPSC -- will likely welcome this interim guidance if approved by the Commission.

CPSC Issues Final Rule on Accessibility of Lead-Containing Components in Children's Products

On August 7, 2009, CPSC issued a final rule providing guidance as to which component parts of a children’s product are “inaccessible” and therefore not subject to the CPSIA’s lead content limits. As discussed below, the rule affirms CPSC’s position in the proposed rule that inaccessible components are those that a child cannot touch and explains how the standard will be applied.

Background

The Consumer Product Safety Improvement Act (CPSIA) set lead content limits applicable to “children’s products,” i.e. , those consumer products designed and intended primarily for children 12 years of age and younger. As of August 14, 2009, children’s products cannot contain more than 300 ppm of lead. And, on August 14, 2011, the lead content limit will be decreased further to 100 ppm, unless CPSC determines that the 100 ppm level is not technologically feasible.

CPSIA Section 101(b)(2) provided that the lead content limits shall 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,” and required CPSC to provide guidance on what product components , or classes of components, will be considered inaccessible. The section further specified that a component part is not accessible “if such component part is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product . . . includ[ing] swallowing, mouthing, breaking, or other children’s activities, and the aging of the product.” Finally, the section provided that “paint, coatings, or electroplating may not be considered to be a barrier” rendering lead in the substrate inaccessible.

CPSC published a proposed interpretative rule on inaccessibility in the Federal Register on January 15, 2009 (74 FR 2439), and published the final rule on August 7, 2009 (74 FR 39535).

CPSIA: Ready, Set, Go -- New Requirements Take Effect on One-Year Anniversary

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.” 

CPSIA: CPSC Provides Guidance on Phthalates Limits

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.)

CPSC Takes Key Step Toward Registration Requirement for Durable Infant and Toddler Products

On Monday, June 29, CPSC published a Notice of Proposed Rulemaking (“NPR”) in the Federal Register, proposing and requesting comments on a rule requiring “manufacturers” (defined in the proposed rule to include “importers”) of “durable infant or toddler products” to (a) provide consumers with registration forms with each such product, (b) keep records of consumers’ contact information, and (c) permanently mark their products with identifying information. The NPR can be found here.

In addition to setting forth the statutory requirements of section 104(d) of the CPSIA, the proposed rule:

• specifies the required text and format for registration forms;
• specifies the required text for registration websites;
• specifies the content of the product and manufacturer’s contact information that must be permanently marked on the product, and requires the permanent marking to be “in a location that is conspicuous to the consumer;” and
• sets an effective date of 180 days after publication of a final rule and specifies that the requirements shall apply to durable infant or toddler products manufactured on or after that date.

The sample registration card included in the proposed rule is identical to the sample that the CPSC staff provided in its briefing package to the Commission on May 20.

The Commission requests comments by September 14 on all aspects of the proposed rule, and specifically on the following issues:

• what products are included in the definition of durable infant or toddler product;
• whether the Commission should prescribe the format of the registration cards or allow flexibility;
• the interplay between the permanent identification marking required to be placed on the product and the tracking label requirement;
• the party best situated to conduct the registrations (as among the manufacturer, importer, private labeler and retailer);
• the practical and economic impact of requiring an additional section on the registration form—one section for consumers to mail to the manufacturers and the other section for consumers to keep;
• allowing the consumer to e-mail registration information as an option;
• whether requirements on the ease of use and navigation of Web sites are necessary; and
• appropriateness of the proposed effective date.

- Eric Rubel

CPSC Denies Petition to Exclude Children's Pens from Lead Standard and Does Not Stay Enforcement

On April 8, 2009, CPSC announced that the commissioners have voted 1-1 on both (i) the petition by the Writing Instrument Manufacturing Association (WIMA) to exempt the tips of children’s ball point pens from the lead substrate ban, and (ii) whether to direct the CPSC staff to draft a stay of enforcement of the ban as to pen tips (vote record and Commissioners’ signing statements available here).  The effect of the split votes is to deny the petition for an exemption and to forgo a stay of enforcement.  Thus ball point pens that are “children's products” (i.e., those intended “primarily” for children 12 years of age and under) remain subject to the lead substrate ban.  However, in their signing statements, both Commissioners state their agreement that most ball point pens are not children's products, and thus are outside the scope of the ban.

In announcing the result of the ballot vote, CPSC also published a letter from CPSC General Counsel Cheryl Falvey to WIMA regarding WIMA’s petition.  (The Commission approved the contents of the letter an d directed that Falvey send it to WIMA.)  Like the Commissioners, Ms. Falvey emphasizes that general use pens -- even those sold to school systems or to retailers and marketed as a back to school item -- are not children’s products and thus are not subject to the lead ban.   She also states that the majority of novelty pens are not considered to be “primarily” intended for children, and thus they too would be outside the scope of the lead substrate ban.  Further, she notes that even a pen with a cartoon character “may have mass appeal and not be intended primarily for children” if the pen’s price point and marketing indicate that the pen is intended for both adults and children.  Likewise, the letter states that pens with a puzzle feature that are “marketed to executives” are “likely to appeal to adults and children alike.”

While this information helps establish that most pens are outside the scope of the lead substrate ban, it appears that in some instances a case by case analysis may still be required to determine whether a particular pen is intended “primarily” for children 12 years of age and under, considering factors such as (a) any marketing and advertising for the pen, (b) price, and (c) the nature of any logos, attachments or other markings or features associated with the pen.

- Eric Rubel

CPSC Denies Exemption Request for Lead in Children’s Bicycles but May Stay Enforcement

On Tuesday, May 12, the Consumer Products Safety Commission (CPSC) voted to deny the request for an exemption for bicycles from the CPSIA lead substrate requirement, and directed the staff to prepare a briefing package for a stay of enforcement.  (See here) In announcing the decision, Acting Chairman Nancy Nord said that the Commission is mindful that, as with ATVs (for which a stay of enforcement was recently granted until May 2011), some amount of lead is necessary in bikes for structural integrity.   A denial of the petition for an exemption was all but a certainty based upon CPSC’s finding earlier this year that, under the CPSIA, exemptions from the lead substrate requirement cannot be granted if a product or substance exposes children to any lead at all, no matter how little.

- Eric Rubel

No Stay of Enforcement for CPSIA Tracking Labels

Consumer Products Safety Commission (CPSC) announced the results of the commissioners’ vote on a request by the National Association of Manufacturers for an emergency stay of enforcement of the tracking label requirement in Section 103 of the CPSIA. (The full signing statements are available at here.)  The stay was not granted, due to a split vote -- Acting Chairman Nord voted to grant the request for a stay and Commissioner Moore voted to deny the request.  Accordingly, tracking labels will be required on children’s products manufactured on or after August 14, 2009.  

However, both commissioners issued signing statements indicating that CPSC does not plan to take a hard-line approach in enforcing the requirement.  Rather, the commissioners anticipate that companies that sincerely attempt to comply with the requirement will not be punished if they miss the mark.  Acting Chairman Nord anticipates that the Commission will issue guidance “that will assure companies that they should reasonably exercise the judgment anticipated by the loose language of the statute.”  Commissioner Moore also tried to reassure companies that CPSC will be reasonable in enforcing the requirement:  “ ‘Guesses’ . . . are not going to be ‘wrong’ as long as they have the information required by the statute and do not take a cavalier approach to the ‘to the extent practicable’ language in the statute.  If we find manufacturers who have diligently tried to comply with the statute, but miss the mark on devising a complying tracking label, we will work with them (and learn from them) to make their marks comply with the law.  This will be a learning process for all of us and not an excuse to punish an unwitting mistake.”

In addition, both commissioners recognize that a “one size fits all” approach with respect to tracking labels may not be possible, and indicate that CPSC will allow companies to develop their own compliant labels.  Acting Chairman Nord states that “companies need to be able to develop labels that work for their individual products and situations, yet meet the needs of the agency to increase recall effectiveness.”  Commissioner Moore notes that “[a]s long as the tracking information required by the law is ascertainable from that tracking information, there is no need for the Commission to dictate a particular format.”  Commissioner Moore further recognizes that, while some companies may be able to use or easily adapt their existing labels, others such as small businesses will need help in devising a way to meet the requirement.  Both commissioners anticipate that CPSC will issue guidance to help companies meet the requirement, and that such guidance will not be the final word on the subject.

The take-away message from these statements seems to be that while CPSC will enforce the tracking label requirement for children’s products, CPSC will likely give companies some latitude if they demonstrate a good faith effort to comply. 

 - Eric Rubel

This Just In: Major Developments at CPSC

On February 5 and 6, 2009, the U.S. Consumer Product Safety Commission voted unanimously to take three significant actions regarding the Consumer Product Safety Improvement Act (CPSIA) requirement that no children product containing more than 600 ppm total lead in any part may be sold on or after February 10, 2009:

A. The Commission denied an industry association request for a stay of the February 10 effective date of the lead content limit:  See http://cpsc.gov/library/foia/ballot/ballot09/nam.pdf.

B. The Commission adopted a “Statement of Commission Enforcement Policy on Section 101 Lead Limits.” See http://cpsc.gov/library/foia/ballot/ballot09/101lead.pdf and http://cpsc.gov/library/foia/foia09/brief/101lead.pdf.

C. The Commission withdrew its January 14, 2009 proposed rulemaking concerning exemptions for certain electronic devices for which it is not technologically feasible to meet the CPSIA lead limits, and announced an interim final rule on the same matter.  See http://cpsc.gov/library/foia/ballot/ballot09/electronics.pdf and http://www.cpsc.gov/library/foia/foia09/brief/leadwithdrawal.pdf

CPSC has determined that it lacks authority to stay the effective date of the new lead content limits, as had been requested by a coalition of manufacturers led by the National Association of Manufacturers.  However, CPSC has issued an enforcement policy on the lead limits, which among other things, provides that (1) the staff will not enforce the lead limits with respect to ordinary children’s books and dyed or undyed textiles  and non-metallic thread and trim, subject to certain specified restrictions and limitations; (2) certain materials, such as wood, cotton, wool, and certain metals and alloys, will be presumed to be below the lead content limits until the proposed rule identifying such materials is finalized; and (3) until a rule on how to determine “inaccessibility” of a component (thus exempting it from the lead standard), CPSC will accept a manufacturer’s determination that a component part is not accessible to a child through normal and reasonably foreseeable use and abuse, as long as the manufacturer’s determination is based on a reasonable interpretation of the requirements.  Further, CPSC has issued an interim final rule exempting from the lead standard certain electronics components that cannot comply with the lead standards because it is technologically infeasible to do so, and setting higher lead limits for certain components.

Despite this much needed guidance, manufacturers, importers, distributors and retailers are still faced with substantial uncertainty in their efforts to comply with law. More detail about these developments can be found in our Client Alert here.

-Eric Rubel

CPSC Adopts Limited Stay of Enforcement, But Beware the Details

On January 30, 2009, the US Consumer Product Safety Commission (CPSC) announced a stay of enforcement (also referred to in the draft Federal Register notice as a “stay of applicability”) of certain testing and certification requirements under the Consumer Product Safety Improvement Act (CPSIA). The stay postpones until February 10, 2010 certain testing and certification requirements imposed on manufacturers and importers of products that are subject to rules, bans, standards and regulations enforced by CPSC. However, the stay does not apply to: 

1. products for which testing and certification had been required prior to enactment of the CPSIA (e.g. bike helmets, lawnmowers, and lighters)
2. requirements for which CPSC has published accreditation requirements for third party testing (lead paint, full size and non-full size cribs, pacifiers, small parts, and metal components of children’s metal jewelry); 
3. any and all certifications expressly required by CPSC regulations (e.g. mattress flammability; candles with metal-cored wicks);
4. certifications required under the Pool and Spa Safety Act; 
5. certifications for ATVs that were added by the CPSIA; and
6. any voluntary guarantees provided for in the Flammable Fabrics Act. 

Moreover, the stay does not alter or postpone the requirement that all products comply with applicable product safety rules, bans, standards and regulations that are enforced by CPSC. Thus, for example, children’s products must comply with all applicable standards, such as the new limits on lead substrate (which goes into effect on February 10, 2009). Likewise, toys and child care articles will still be required to comply with the new phthalate limits (also effective February 10) and other applicable standards.

In addition, in a press release announcing the stay, CPSC addressed the risk that State Attorneys General will seek to enforce the testing and certification requirements despite CPSC’s decision to stay enforcement: “The Commission trusts that State Attorneys General will respect the Commission's judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.” This is a concern because the CPSIA provides State Attorneys General with authority to seek to enforce certain provisions of the law, including the certification requirements. 

Here are the links to the press release and draft Federal Register notice.

- Eric Rubel