First Anniversary of the Consumer Product Safety Improvement Act of 2008

By Michelle L. Butler – 

Today, August 14, 2009, is the anniversary of the passage of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which means that a number of new requirements will go into effect.  It also means that the Consumer Product Safety Commission (“Commission” or “CPSC”) continues to promulgate rules and statements of policy as it continues to implement the various CPSIA requirements. 

First, the CPSIA requires the lead content of children’s products (products designed or intended primarily for use by children 12 and younger) to be reduced from 600 parts per million (“ppm”) to 300 ppm on August 14, 2009.  A draft of a final rule to address determinations that certain materials do not exceed the lead content limit was recently submitted to the Commissioners seeking their approval to publish the rule in the Federal Register.  (The Ballot Vote Sheet identified a due date of August 13, 2009 for the Commissioners to vote whether to publish the document in the Federal Register – as of now, the results have not been posted on the CPSC website.)  The draft final rule identified specific categories of materials that do not exceed the lead content limits as long as the materials have not been treated or adulterated with the addition of materials that could result in the addition of lead:  certain precious and semiprecious gemstones; natural or cultured pearls; wood; paper and similar materials made from wood; certain printing inks; textiles (excluding after-treatment applications, including screen prints, transfers, decals, or other prints) consisting of certain dyed or undyed natural fibers and certain manufactured dyed or undyed fibers; and other plant-derived and animal-derived materials.  The draft final rule also identified certain metals and alloys that do not exceed the lead content limits.  The preamble to the draft final discussed certain component parts that would not be exempt from the lead content limits, such as zippers, buttons, and other applied decorations, and which therefore would continue to be subject to the lead content limit and testing and certification requirements.  The preamble also stated that the Commission is aware that there are many questions regarding component part testing and certification and that it would address these issues in an upcoming rulemaking.

The CPSC also issued a final interpretative rule providing guidance as to what product components or classes of components are considered inaccessible such that the lead content limits do not apply.  The final rule references the accessibility probes specified in the sharp points or edges regulations, as well as the use and abuse tests for various age groups in existing regulations.

Second, the CPSIA increased the maximum civil penalties applicable to each knowing violation of the Consumer Product Safety Act (“CPSA”), Federal Hazardous Substances Act (“FHSA”), and Flammable Fabrics Act (“FFA”) from $8,000 to $100,000.  The CPSIA also increased the maximum penalty amounts for any related series of violations from $1,825,000 to $15,000,000.  These increased civil penalty amounts go into effect August 14, 2009.  The CPSIA also required the Commission to issue by August 14, 2009 a final regulation providing its interpretation of civil penalty factors in the CPSA, FHSA, and FFA.  On August 7, 2009, a Ballot Vote Sheet with a return date of August 13, 2009 was submitted to the Commissioners regarding publication of an interim final rule interpreting the factors to be considered when seeking civil penalties and withdrawal of a previously proposed interpretive rule on civil penalty factors.  The results of the vote have not yet been published on the CPSC website.  The interim final rule would be effective upon publication since the increased penalties went into effect on August 14, 2009.

The Commission also recently issued a statement of policy regarding testing of component parts for phthalates in children’s toys and child care products.  The Commission determined that the phthalate limits in the CPSIA apply to each component part of a product rather than the product as a whole.  The Commission stated that it believed this is supported by the language of the CPSIA and is more protective of public health.  The Commission also recently published a Standard Operating Procedure for the Determination of Phthalates (Test Method: CPSC-CH-C1001-09.2) in toys and child care products.

Finally, the Commission continues to request input from interested parties in a number of areas.  For example, the Commission is required by the CPSIA to examine and assess, in consultation with consumer groups, juvenile product manufacturers, and independent child product engineers and experts, the effectiveness of the ASTM toy safety standard, ASTM-F963-07.  Accordingly, in July, the Commission issued a request for comments on this topic, which are due by August 20, 2009.  The Commission will also be holding a public hearing to receive views concerning its agenda, priorities, and current strategic plan for fiscal year 2011 (which begins October 1, 2010).  This hearing will begin on August 25, 2009 at 10 am.  Participation by members of the public is invited, and requests to make oral presentations (as well as the written text of any such presentations) must be received by the Office of the Secretary no later than 5 pm on August 18, 2009. 

This is not a catalog of all ongoing activities by the CPSC, but rather provides a look at some of the activities that are keeping the CPSC so busy these days.