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CPSC Expands Phthalate Restrictions in Toys and Child Care Articles

Authors: K. Russell LaMotte, Ryan J. Carra
October 19, 2017

Click here for a PDF of this alert.

This week, the U.S. Consumer Product Safety Commission (CPSC) voted to expand existing phthalate restrictions in children’s toys and child care articles.  Restrictions on the following five phthalates will be enacted or expanded in scope:

  • Diisononyl phthalate (DINP)
  • Diisobutyl phthalate (DIBP)
  • Di-n-pentyl phthalate (DPENP or DnPP)
  • Di-n-hexyl phthalate (DHEXP or DnHP)
  • Dicyclohexyl phthalate (DCHP)

Existing restrictions on three additional phthalates – di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), and benzyl butyl phthalate (BBP) – in children’s toys and child care articles will remain in place.  Like last month’s vote on flame retardants in consumer products, the decision was 3-2 along party lines.  Republican Commissioner Joseph Mohorovic also announced this week he is leaving CPSC in the middle of his term, which may mean Republicans take longer than expected to regain the majority.

Phthalate Restrictions

Background

The 2008 Consumer Product Safety Improvement Act (CPSIA) enacted permanent restrictions on DEHP, DBP, and BBP to a maximum 0.1% concentration in children’s toys and child care articles.  The law also restricted, on an interim basis, the phthalates DINP, diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP) to a maximum 0.1% concentration in children’s toys that can be placed in a child’s mouth and child care articles.  The CPSIA directed CPSC to consider whether to make these interim restrictions permanent and whether additional phthalate restrictions might be appropriate.

The law contained the following definitions:

Children’s toy: a consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.

Child care article: a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething.

New Restrictions

On October 18, 2017, CPSC voted 3-2 along party lines to drop the interim restrictions on DIDP and DnOP and to replace the existing interim DINP restriction with an expanded restriction that will cover all children’s toys and child care articles.  CPSC also voted to restrict four previously unregulated phthalates – DIBP, DPENP, DHEXP, and DCHP – to a maximum 0.1% concentration in children’s toys and child care articles.  According to CPSC, only Denmark currently restricts these four phthalates in child care articles and no countries currently restrict these four phthalates in children’s toys.

The draft final rule CPSC voted to enact will go into effect 180 days after publication in the Federal Register.  The rule contains the same definitions of “children’s toy” and “child care article” as CPSIA.  The prohibitions will only apply to plasticized component parts or other component parts that may contain phthalates.

The draft final rule follows several years of CPSC study of phthalates in children’s toys and child care articles.  The CPSIA required CPSC to convene a Chronic Hazard Advisory Panel (CHAP) to consider these issues.  After assessing the risks of 14 phthalates and six phthalate alternatives, CHAP issued a report in July 2014 recommending restrictions on DINP, DIBP, DPENP, DHEXP, and DCHP.  These recommendations were incorporated into a December 2014 CPSC notice of proposed rulemaking.  CPSC solicited stakeholder comments on the notice of proposed rulemaking, and responded to comments in the preamble to the draft final rule.

CPSC Composition

During the hearing in which the new phthalate restrictions were approved, Republican Commissioner Joseph Mohorovic, whose term was to expire in October 2019, announced he was leaving CPSC early.  Democrats currently hold a 3-2 majority among Commissioners, but Democratic Commissioner Marietta Robinson’s term expires this month.  Republican Dana Baiocco was nominated last month to replace Robinson.  Mohorovic’s announcement likely means that Republicans will not regain a majority until Baiocco and another nominee are confirmed.

Beveridge & Diamond assists clients with regulatory requirements under a wide variety of statutes as they relate to consumer products. We counsel clients on the growing number of chemical-specific requirements that affect consumer products. For more information on issues related to chemicals in products, please contact the authors or any member of our Consumer Products Practice.

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