CPSIA Developments – Phthalate Prohibitions and Lead Content Limits

By Michelle L. Butler –

With the effective date for a number of requirements imposed by the Consumer Product Safety Improvement Act (“CPSIA”) quickly approaching (February 10, 2009), the Consumer Product Safety Commission engaged in a flurry of activities.  We recently reported on the Commission’s decision to stay enforcement of the testing and certification requirements in the CPSIA as to the majority of products, including products subject to the child resistant packaging standards of the Poison Prevention Packaging Act.  Late last week, the Commission took a number of actions related to the underlying requirements pertaining to phthalates and lead content in children’s products.

Phthalates:  On February 5, 2009, a judge in the United States District Court for the Southern District of New York set aside an advisory opinion letter issued by the General Counsel of the Commission that the prohibitions on phthalates in children’s products (children’s toys and child care articles) did not apply to existing inventory.  See National Resources Defense Council, Inc. v. U.S. Consumer Product Safety Commission, No. 08-10507 (PGG), Memorandum Opinion and Order (S.D.N.Y. Feb. 5, 2009).  On February 6, 2009, the Commission stated in a press release that it would abide by the Court’s decision.  This position, along with the fact that the Commission chose not to avail itself of certain procedural arguments that might have delayed a ruling, indicates that the Commission wanted a ruling from the Court, even if the decision was contrary to the position originally taken by the General Counsel.  The press release also stated that the Commission would be issuing further guidance this week. 

Lead Content:  On January 28, 2009, a coalition of manufacturers requested emergency relief from the Commission to stay the effective date of February 10, 2009 for the lead content limit in section 101(a)(2) of the CPSIA, which requires that consumer products intended for children 12 and under not have more than 600 parts per million (“ppm”) of lead in any accessible part.   On February 6, 2009, the Commission denied this request.  Notwithstanding this decision, the Commission voted on February 6, 2009 to adopt a draft “Statement of Commission Enforcement Policy on Section 101 Lead Limits.”   The Commission’s Office of Compliance and Field Operations drafted this enforcement policy because the rulemaking process to grant certain relief from the lead limits could not be completed before February 10, 2009, when the lead content limits are to go into effect.  Among other things, this enforcement policy provides that the Commission will not impose penalties against anyone for making, importing, distributing, or selling

• a children’s product that is made of certain natural materials, such as wood, cotton, wool, or certain metals and alloys that the Commission has recognized as rarely, if ever, containing lead;
• an ordinary children’s book printed after 1985; and
• dyed or undyed textiles (not including leather, vinyl, or PVC) and non-metallic thread and trim used in children’s apparel and other fabric products, such as baby blankets – this class does not include such products if (1) they have undergone further treatment that may impart lead, (2) they are ornamented with metal, rhinestones, or other objects, or (3) they have plastic or metal fasteners with possible lead content (such as snaps, grommets, zippers, or buttons).

The enforcement policy states that the Commission generally will not prosecute someone for making, selling, or distributing an item in these categories even if it turns out that such an item actually contains greater than 600 ppm lead.  The policy states, however, that a seller could face prosecution if the Commission’s Office of Compliance finds that the seller had actual knowledge that one of these children’s products contained greater than 600 ppm lead or continued to make, import, distribute, or sell such a product after being put on notice of the lead content by the Commission staff.  The Commission intends to issue further guidance addressing these categories of products in greater detail.

Though this enforcement policy will provide relief to certain manufacturers, sellers, distributors, and importers of children’s products while the Commission’s rulemaking is underway, it does not affect the ability of interested persons, including State Attorneys General, to bring an action for violation of the lead content limits contained in the CPSIA.

On February 6, 2009, the Commission also decided to withdraw a proposed rule relating to exemptions for electronic products for which it is not technologically feasible to meet the lead content limits.  At the same time, the Commission issued an interim final rule that provided exemptions for such products. 

Proposed Legislation:  On February 4, 2009, Senator Jim DeMint introduced legislation to amend the Consumer Product Safety Act.  (This bill is not yet available from the Government Printing Office.)  According to a press release issued by Senator DeMint, the bill is intended to reform the CPSIA to protect the needs of small businesses and has six major components:

• Delays implementation of certain regulations for six months to balance the needs of small business and public safety.
• Allows small manufacturers to use testing and certification from component suppliers to certify that the components do not contain impermissible amounts of lead.
• Exempts thrift stores, yard sales, consignment shops, and other re-sellers from the prohibitions in the CPSIA.
• Prevents retroactive enforcement of the CPSIA.
• Provides a one-time, good faith exemption for small businesses from the requirements of the CPSIA.
• Requires the Commission to provide small business with a compliance guide.