CPSC Updates Guidance: “Household Substances” Not Intended for Household Use Are Subject to Poison Prevention Packaging Act

On February 18, 2022, the US Consumer Product Safety Commission’s (CPSC) Office of Compliance and Field Operations issued a guidance for household substances not intended for household use under the Poison Prevention Packaging Act (PPPA). No, that is not a typo.  The revised immediately effective guidance states that products categorized as “household substances” and only intended for institutional use must be sold in special packaging under the PPPA guideline.

This guidance raises the fundamental statutory interpretation question of whether a substance can be a “household substance” if it is not intended for household use.  In the guidance, the CPSC answers that question in the affirmative.  In doing so, the CPSC does not address the fact that the PPPA does not cover substances not intended for household use.  As a result, the CPSC’s reasoning is at best incomplete, and at worst, internally inconsistent.

The heading of the guidance specifically states that it concerns product “not intended for household use.”  Yet, as CPSC acknowledges, the PPPA requires certain household substances to be packaged in accordance with special packaging standards.  CPSC further acknowledges that the term “household substance” is defined as “any substance which is customarily produced or distributed for sale for consumption or use, or customarily stored, by individuals in or about the household.”  CPSC then discusses exceptions to the requirement for special packaging and notes that the exceptions are limited and do not include products for institutional use, i.e., product not intended for household use.  But if  the PPPA applies only to product intended for household use then it does not need to include an exception for product not intended for household use, because those products are not regulated by the PPPA.

One way to interpret the guidance is that the CPSC is claiming that if a  substance is “customarily produced or distributed for sale for consumption or use, or customarily stored, by individuals in or about the household,” then all packages of that substance are “household substances” even if not intended or labeled for household use.  It is far from clear that this interpretation would withstand judicial scrutiny.  Regardless, as a matter of administrative law, the CPSC should explain its reasoning.

The CPSC acknowledges that “in commercial and institutional settings [] the risk to children is diminished” and, therefore, it will be exercising enforcement discretion with respect to allegedly noncompliant products intended to be used in such settings.   The non-exhaustive list of factors the CPSC staff will consider include :

• how and where the product is advertised, marketed, sold, labeled, and distributed;
• the nature and extent of a firm’s oversight of its distribution chain;
• the packaging configuration, type, and size;
• whether the ancillary instructions provided on the package [such as for storage, handling, or use] are intended for consumers; and
• product reviews and other evidence demonstrating the nature and extent of consumer use.

Other statements in the guidance suggest that CPSC’s guidance originates in concern that products intended for institutional or other non-household uses may end up in households anyway.  Companies marketing products for institutional use would be well-advised to consider CPSC guidance and the risk and possible safeguards to prevent that their products, even though not intended for household use, will end up in households.