Beveridge & Diamond
 

Congress Fixes Problems in Consumer Product Safety Improvement Act

Beveridge & Diamond, P.C., August 15, 2011

Article updated September 2, 2011

On August 12, 2011, President Obama signed into law amendments to the Consumer Product Safety Improvement Act of 2008 (CPSIA) designed to address longstanding complaints about some aspects of the CPSIA.1  This action came two days before the CPSIA would have made all existing children’s products containing more than 100 ppm of lead illegal to sell or resell, even if they were in compliance with all applicable consumer product safety standards at the time of manufacture.  This client alert reviews the key provisions of these just-in-time amendments, Public Law 112-28.

After Three Years, Swift Passage

When enacted on August 14, 2008,2 the CPSIA received overwhelming support in both houses of Congress.3  It lowered lead levels in children’s products in stages, required third-party testing of certain children’s products for conformity with CPSC standards, and banned the use of phthalates above 0.1% in children’s toys and child care articles, among other provisions.  It also revitalized the Consumer Product Safety Commission (CPSC), providing the CPSC with increased funding and enforcement tools.4

Yet problems with the CPSIA were quickly identified.  For example, the CPSC concluded that the lead ban applied retroactively to products in inventory and used products, so that toys, books, and other products containing lead above the CPSIA limits that were legal when manufactured could no longer be sold, even in resale shops.5  Twelve bills to address this issue, impacts on small business, or other concerns were introduced in the 111th Congress, but did not pass.  The Committee Report for the fiscal year 2010 CPSC appropriations bill directed the CPSC to report on potential amendments to the CPSIA,6 which the CPSC did in 2010.7

The Subcommittee on Commerce, Manufacturing, and Trade of the House Energy and Commerce Committee held hearings on February 17 and April 7, 2011, on a draft CPSIA amendments bill being circulated for comment.8  On May 23, 2011, Representative Mary Bono Mack (R-CA) introduced the “Enhancing CPSC Authority and Discretion Act of 2011,” H.R. 1939, which would have made numerous changes to the CPSIA.  Democrats objected that the bill went too far.  On August 1, 2011, Rep. Bono Mack introduced a more limited unnamed bill, H.R. 2715, which garnered bipartisan support.  On the day it was introduced, the bill was passed by the House by a vote of 421-2 and sent to the Senate.  The Senate had its own more limited bill introduced by Senator Mark Pryor (D-AR) on July 28, 2011, the “Consumer Product Safety Flexibility Act,” S. 1448.  The Senate passed H.R. 2715 without amendment by unanimous consent, rather than its own bill, also on August 1.  H.R. 2715 became Public Law 112-28 with President Obama’s signature on August 12.

Applicability of Lead Limits to Existing Products

Section 1 of Public Law 112-28 amends CPSIA § 101(a) by adding a provision that each lead limit (other than the 600 ppm and the 300 ppm limits) “shall apply only to a children’s product. . . that is manufactured after the effective date of such respective limit.”  This partially overturns the CPSC General Counsel’s opinion that found the CPSIA lead limit to apply retroactively to existing inventory and used children’s products.

The timing of this change is critical.  On August 14, 2011, the allowable lead limit dropped from 300 ppm to 100 ppm.9  On that date, previously manufactured children’s products with lead content below 300 ppm but above 100 ppm would have become illegal to sell, but for enactment of this law.  Now the new, lower limit applies only to children’s products manufactured on or after August 14, 2011.

Exceptions to the Lead Limits

Section 1 of Public Law 112-28 makes explicit that the lead limits do not apply to used children’s products.  This exclusion does not apply to children’s metal jewelry or to children’s products which the donor or seller knows has lead above the otherwise applicable lead limits.

CPSIA § 101(b) allowed the CPSC narrow authority to exempt products or components from the applicable lead limits.  Section 1 broadens that authority considerably.  Now, the CPSC may find that a product, class of products, or component part requires the inclusion of lead above the applicable limit because it is not technologically feasible to remove the excessive lead or make the lead inaccessible, and an exception would have no measurable adverse effect on public health or safety, such as by increasing blood lead levels.

Section 1 completely exempts off-road vehicles, such as all-terrain vehicles, snowmobiles, and dirt bikes, from the lead limits.  House Representatives speaking in support of the bill pointed out that safety requires certain components and parts of these vehicles to include levels of lead that may exceed CPSIA’s allowable limits, but not to the extent that would threaten public health or safety.  For example, Rep. Henry Waxman (D-CA) stated that “there are some products that require a small amount of lead to maintain their strength and durability and don’t pose a serious threat to public health or safety.  ATVs and bicycles are examples of these.”10   

In 2009, the CPSC announced a stay of enforcement of the lead limits for bicycles, jogger strollers, and bicycle trailers intended for children 12 and younger.  It substituted other limits instead.11  Section 1 makes that stay permanent, except that it drops the maximum lead limits to 300 ppm beginning January 1, 2012.

Third Party Testing

CPSIA § 102 imposes burdensome requirements for third party testing of children’s products for conformity with CPSC product safety rules for such products.

Section 2 of Public Law 112-28 directs the CPSC to seek public comment on ways to reduce the cost of third party testing requirements consistent with assuring compliance with applicable product safety rules.  It identifies several opportunities for reducing burdens on which the CPSC is to solicit comments.  Within a year after the end of the comment period, the CPSC must prescribe new or revised third party testing regulations if it determines they would reduce testing costs while assuring compliance.  If the CPSC determines that it lacks authority to implement opportunities for reducing the burdens, it must so report to Congress.

In addition, section 2 specifically tries to help reduce the burdens of third party testing on small batch manufacturers (defined to include manufacturers of no more than 7,500 units of the same product and with no more than $1 million in gross revenues from consumer products).  It directs the CPSC to take into account “any economic, administrative, or other limits on the ability of small batch manufacturers to comply with such requirements” and provide alternative testing requirements for them.  If no alternatives are available or economically practicable, the CPSC must exempt small batch manufacturers from the requirements altogether.  Alternatives and exemptions are not available for lead paint; cribs; small parts; children’s metal jewelry; baby bouncers, walkers, or jumpers; or durable infant or toddler products.  Any small batch manufacturer operating under alternative requirements or an exemption must register with the CPSC.

Further increasing flexibility under this provision, section 2 authorizes certification of compliance with an applicable product standard by documentation that a product meets another national or international governmental standard that the CPSC determines is the same as or more stringent than the applicable product standard.

Ordinary books and ordinary paper-based printed materials are exempted altogether from the third party testing requirements.  Metal or plastic parts are not included in the exemption.  Also, bicycle parts are excluded with respect to certification of compliance with the lead limits.

Durable Nursery Products

CPSIA § 104, known as the “Danny Keysar Child Product Safety Notification Act,” directs the CPSC to adopt consumer product safety standards for durable nursery products, such as cribs, based on voluntary standards.  Section 3 of Public Law 112-28 facilitates the process for updating those CPSC standards as the underlying voluntary standards change.

ASTM Toy Standard

CPSIA § 106(a) adopts ASTM International Standard F963, Consumer Safety Specifications for Toy Safety, as a consumer product safety standard.  That standard directs compliance with certain Food and Drug Administration (FDA) food requirements in connection with food products supplied with toys and cosmetics in toys, setting up a concern about overlapping jurisdiction.12  Section 4 of Public Law 112-28 exempts from the CPSC’s consumer product safety standard any provisions of F963 that restate or incorporate FDA requirements.

Phthalates Bans

The ban on three phthalates (DEHP, DBP, and BBP) and interim ban on three others (DINP, DIDP, and DnOP) in CPSIA § 108 apply to children’s toys and child care articles.  Section 5 of Public Law 112-28 clarifies that those bans apply only to any plasticized component part of a children’s toy or child care article or any component made of other materials that may contain phthalates.

Section 5 also excludes from the bans any inaccessible parts of a children’s toy or child care article.  The lead limits under CPSIA § 101 have an inaccessible parts exclusion, but the phthalate bans under CPSIA § 108 have lacked one until now.  The CPSC is directed to provide guidance on the scope of this exemption within one year, similar to its guidance on the inaccessible parts exclusion for lead,13 but the exemption became effective upon enactment.

Tracking Labels

CPSIA § 103 requires manufacturers of children’s products to mark their products with information to enable the manufacturer and ultimate purchasers to trace back the products to their original batch or run, or similar information.  Section 6 of Public Law 112-28 authorizes the CPSC to adopt rules excluding specific products or classes of products from this requirement if it is not practicable for them to bear such marks.  Instead, the CPSC may establish alternative requirements for those products.

Consumer Product Safety Information Database 

CPSIA § 212 directs the CPSC to establish a publicly available, searchable database on the safety of consumer products.  The database is to include reports of harm relating to the use of consumer products.  The database, SaferProducts.gov, began accepting reports about products subject to the CPSC’s jurisdiction in March 2011.  It has attracted opposition from industry due to concerns about inaccurate information showing up in the database.

Section 7 of Public Law 112-28 delays by five days the posting of information on the database for which the CPSC receives notice that the information is materially inaccurate.  During that time the CPSC can consider whether to determine that the information is materially inaccurate and thus should be excluded.

Section 7 also directs the CPSC to respond to a report of harm by seeking the model or serial number, or a photograph, of the consumer product involved, if such information is not included in the report.  Inclusion of a report in the database does not depend on the CPSC’s receipt of such information, however.

Subpoena Authority

Section 27(b) of the Consumer Product Safety Act (not amended by the CPSIA) authorizes the CPSC to issue subpoenas for documentary evidence.  Section 8 of Public Law 112-28 also authorizes subpoenas for physical evidence.  The CPSC may now subpoena federal, state, and local government agencies for documentary and physical evidence.

All Terrain Vehicles Standard

In 2006, the CPSC published a proposed rule on banning three-wheeled all terrain vehicles.14  Section 9 of Public Law 112-28 directs the CPSC to adopt a final standard within one year of enactment.

For more information, please contact Mark Duvall at mduvall@bdlaw.com.

For a printable PDF of this article, please click here


1 Public Law 112-28 (Aug. 12, 2011)

2 Public Law 110-314 (2008).

3 The House approved the conference report 424-1, and the Senate approved it 89-3.

4 See Beveridge & Diamond, P.C., CPSC Implements New Consumer Product Requirements (2008), available at http://www.bdlaw.com/news-417.html; Beveridge & Diamond, P.C., Consumer Product Safety Improvement Act: One-Year Update (2009), available at http://www.bdlaw.com/assets/attachments/09-15-09%20CPSIA%20Update.pdf.

5 CPSC General Counsel Cheryl A. Falvey, Retroactive Application of the CPSIA to Inventory (Sept. 12, 2008), available at http://www.cpsc.gov/library/foia/advisory/317.pdf.

6 Departments of Transportation and Housing and Urban Development, and Related Agencies Appropriations Act, 2010, Conference Report, H.R. Rep. No. 111-366, 912-13 (2009), available at http://www.gpo.gov/fdsys/pkg/CRPT-111hrpt366/pdf/CRPT-111hrpt366.pdf.  A court ruled that the phthalate bans in CPSIA § 108 also apply retroactively.  National Resources Defense Council, Inc. v. CPSC, 597 F. Supp. 2d 370 (S.D.N.Y. 2009).

7 CPSC, U.S. Consumer Product Safety Commission Report to Congress Pursuant to the Statement of the Managers Accompanying P.L. 111-117 (Jan. 15, 2010), available at http://www.cpsc.gov/about/cpsia/cpsiareport01152010.pdf

8 Subcommittee on Commerce, Manufacturing, and Trade, House Energy and Commerce Committee, Hearing: A review of CPSIA and CPSC Resources (Feb. 17, 2011), available at http://energycommerce.house.gov/hearings/hearingdetail.aspx?NewsID=8220;
id.
, Hearing: Discussion Draft of H.R. ____, a bill that would revise the Consumer Product Safety Improvement Act (Apr. 7, 2011), available at http://energycommerce.house.gov/hearings/hearingdetail.aspx?NewsID=8422.

9 CPSIA § 101(a)(2)(C) provided that, as of August 14, 2011, children’s products may not contain more than 100 ppm of lead “unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category.”  On July 26, 2011, the CPSC announced its decision that the 100 ppm limit was technologically feasible and would go into effect on August 14 for children’s products not otherwise excluded under CPSC regulations.  76 Fed. Reg. 44463 (July 26, 2011).

10 157 Cong. Rec. H5827 (daily ed. Aug. 1, 2011) (statement of Rep. Henry Waxman).  Co-sponsor Rep. G.K. Butterfield (D-N.C.) also pointed out that vehicles such as all-terrain vehicles, snowmobiles, and dirt bikes should be exempted because “constructing strong, rigid parts for these vehicles often requires more lead than CPSIA would otherwise allow” and “[t]he safety of our young people is paramount.”  157 Cong. Rec. H5826 (daily ed. Aug. 1, 2011) (statement of Rep. G.K. Butterfield).

11 74 Fed. Reg. 31254 (June 30, 2009).

12 See memorandum from J. Bidgett, Office of Hazard Identification and Reduction, to R. Howell, Office of Hazard Identification and Reduction, CPSC, Evaluation of the Toy Standard for Section 106 of the CPSIA (May 10, 2010), available at  http://www.cpsc.gov/volstd/toys/f963_05102010.pdf.

13 See 16 C.F.R. § 1500.87 for the CPSC’s interpretive rule on this exclusion.

14 71 Fed. Reg. 45904 (Aug. 10, 2006).

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