CPSC Staff Recommends Major Amendments to the CPSIA (End Retroactivity, Lower "12 and Under," Etc.)

Moore Says Single Most Important Step is to Appoint CPSC Chairman

Commissioner Moore states that the single most important step that needs to be taken regarding CPSIA implementation is to have a third Commissioner, who would also be the Chairman, appointed to lead CPSC. Moore adds that CPSC staff have been hampered by only having two Commissioners who "do not view the Act in the same light and who do not always agree on the Act's meaning," leaving staff unsure in some instances about how to proceed and causing delays.

Until then, Moore states that any legislative 'fixes" are premature and that only the Commission should recommend what, if any, changes should be made to the CPSIA.

CPSC Staff Recommends Three Amendments to Resolve Major Issues

While there are many ways to address the challenges of CPSIA implementation, CPSC staff state that the following three legislative changes would resolve many of the major difficulties associated with the CPSIA:

End retroactive application to inventory, etc. CPSC staff suggests limiting the applicability of the new requirements (for lead content² and phthalates³) to children's products manufactured after the effective dates, except in circumstances where the CPSC decides that exposure to a product presents a health and safety risk to children. Specifically, CPSC suggests continuing to require that manufacturers meet the statutory limits for products manufactured after the effective dates but allowing retailers and resellers to continue sale (of non-compliant products that were manufactured earlier).

CPSC cautions that if this were adopted, the sale of recalled products would still be prohibited and CPSC would retain its authority to stop the sale of any product with exposures that present an unreasonable health and safety risk to children.

Lower age limit of "children's products." CPSC staff recommends lowering the age limit used in the definition of children's products⁴ to better reflect exposure and give the CPSC discretion to set a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household. An approach that considers age and exposure would exclude items such as bikes and ballpoint pens from the discussion, allowing CPSC staff to focus on items like metal jewelry and other objects likely to be mouthed or ingested.

While CPSC staff does not recommend a specific age, it: (i) states the age could reasonably be lower than 12, at least in most cases; (ii) notes that the Senate Bill (S. 2045) deemed seven a satisfactory upper limit; and (iii) states that CPSC's own regulations, which use a variety of ages to define what group of children's products will be subject to a standard or ban, may be useful to consider.

Allow CPSC to set priorities based on risk, etc. The staff advocates allowing CPSC to address certification, tracking labels and other issues on a product class or other logical basis, using risk-assessment methodologies to establish need, priorities and a phase-in schedule. According to CPSC staff, the CPSIA "forsakes" CPSC's original statutory framework which from the beginning, allowed CPSC to prioritize its regulation of consumer products by an overall assessment of the risks at stake, the magnitude of those risks and the actual consequences of the hazard.

CPSC Staff Also Suggests De Minimis Exemption, Component Certification, Etc.

In addition to the above major suggestions, CPSC staff advocates the following (partial list):

Provide de minimis lead content exemptions. CPSC staff state that a more flexible lead content exception process for children's products would avoid regulation of de mimimis problems. Specifically, they suggest that Congress permit the CPSC to exempt certain children's products from the lead content limits, to ease the burdens of testing and certification on children's products unlikely to present more than a negligible health risk, and to regulate on a timetable influenced by the seriousness of the actual risks not artificial deadlines.

Allow component certification. CPSC staff states that the cost of testing and certification is a large burden on small businesses (particularly small crafters of toys, etc.) and a robust component certification program would be extremely helpful (as opposed to requiring testing and certification of the finished product.) (See ITT's Online Archives or 01/26/09 news, 09012615, for BP summary of CPSC seeking comments on allowing component/parts testing.)

More flexibility to address industry-specific concerns. CPSC staff state that more flexibility would allow it to address industry-specific concerns such as those regarding the CPSIA tracking label requirement⁵, given existing and multiple other labeling requirements for each industry, etc.

Let CPSC decide testing for remaining children's product safety rules. CPSC states that an ideal solution to CPSIA third-party testing and certification requirements for the "all other" children's product safety rules (the last such rules to require third-party testing starting in June 2009⁶) would be for Congress to let the CPSC decide what level of testing is required for which products, allowing it to prioritize based on risk.

Alternatively, Congress could continue to require certification and third-party testing for all children's products but allow the CPSC to prioritize as to when the testing for "all children's product safety rules" will begin, so that it can roll those out on a timetable that is based on discretion and expertise.

Extend certain deadlines. Congress might: (1) move certain of the dates for implementation of the CPSIA to allow the CPSC time to provide additional implementation guidance; or (2) allow CPSC more discretion to move an effective date for a given product or class of products in certain circumstances.

¹Enacted as Public Law 110-314 on August 14, 2008.

²Starting February 10, 2009, consumer products designed or intended primarily for children 12 and under that have more than 600 ppm of total lead content by weight in any accessible part are considered banned hazardous substances. This is followed by decreases in the allowable limit to 300 ppm on August 14, 2009 and if feasible, to 100 ppm on August 14, 2011. CPSC has determined that the lead content limits apply not only to children's products manufactured after the effective dates, but also to products manufactured earlier that are sold from inventory or on store shelves after the effective date.

³Starting February 10, 2009, children's toys and child care articles (as defined by the CPSIA) cannot contain more than 0.1% of six phthalates (DEHP, DBP, BBP, DINP, DIDP, and DnOP). In accordance with a court ruling, CPSC has stated that these limits apply regardless of when the products were manufactured, thus applying the phthalates ban to products manufactured earlier that are sold from inventory or on store shelves after the effective date.

⁴"Children's products" under the CPSIA are consumer products designed or intended primarily for children 12 years old or younger. In determining whether a consumer product is primarily intended for such children, the CPSIA outlines certain factors to be considered, including a statement by the manufacturer about the intended use of the product, etc.

⁵See ITT's Online Archives or 02/25/09 news, 09022505, for BP summary of CPSC's request for comments on the CPSIA tracking label requirement that goes into effect August 1, 2009 for children's products.

⁶The CPSIA eventually requires certification based on third-party testing for all children's products and lays out a phased-in schedule for such testing organized by specific "children's product safety rule." The final phase of this schedule is for "all other" children's product safety rules, which is scheduled to begin roll-out in June 2009. CPSC timetable for third-party testing of children's products available at http://www.cpsc.gov/about/cpsia/summaries/102brief.html

(See ITT's Online Archives or 03/23/09 news, 09032315, for previous BP summary announcing Chairman Nord's letter and CPSC staff comments.

See ITT's Online Archives or 03/10/09 news, 09031005, for BP summary of the March 4, 2009 letter from Congressman Dingell (D), Chairman Emeritus of the House Energy and Commerce Committee asking CPSC to respond to ten issues, etc.

See ITT's Online Archives or 03/16/09 news, 09031605, for BP summary of Acting Chairman Nord's statement on being pleased to receive fiscal year 2009 funding to help it implement the CPSIA, hire port inspectors, etc.)

CPSC Acting Chairman Nord's statement, including staff comments (dated 03/20/09) available at http://www.cpsc.gov/about/cpsia/dingell032009.pdf

CPSC Commissioner Moore's statement (dated 03/20/09) available at http://www.cpsc.gov/about/cpsia/dingell032009a.pdf

CPSC Website on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html

BP Note on Staff Comments on Apparel

In discussing the costs of testing products for compliance with the CPSIA, CPSC staff point out that the exclusion of most fabric from CPSIA's third-party testing requirements will provide only limited relief for apparel manufacturers. Several apparel retailers have reported finding virtually no lead in fabric, but they did find lead in about 2% of the tests on hard items (e.g. buttons, zippers, snaps, and fasteners). Since most apparel items have some non-fabric items, there will still be testing requirements for most apparel items.

(See ITT's Online Archives or 02/10/09 news, 09021005, for BP summary of CPSC's lead content enforcement policy that discusses CPSC's policies for textiles.

See ITT's Online Archives or 01/16/09 news, 09011615, for BP summary of CPSC proposed rule to determine certain natural materials/metals do not exceed CPSIA children's product lead content limits.)