U.S. Consumer Product Safety Enhancement Act Enforcement Guidelines
The U.S. Consumer Product Safety Commission (CPSC) continues to advance the implementation of various provisions of the Consumer Product Safety Enhancement Act of 2008, including new regulations concerning lead and phthalate content in certain categories of children's products, which took effect on February 10. Given the significant concerns raised by the U.S. business community regarding these new regulations, the CPSC recently issued guidance on some important implementation and enforcement issues, summarized below.
Draft Guidance on the Scope of the Phthalate Ban
The CPSC has released a draft guidance aimed at assisting manufacturers, importers, retailers, and consumers in identifying which children's toys and childcare products must comply with the new phthalate content limits. The CPSC notes that due to limited resources, it intends to focus enforcement efforts on products most likely to expose children to phthalates, namely bath toys intended for young children, toys that can be put in the mouth, and other small plastic toys.
The Consumer Product Safety Commission (CPSC) is also consulting with the industry on its methodology for determining which products must comply with phthalate content regulations. The consultation period ends on March 25. According to the CPSC's definition, children's toys are "consumer products designed by manufacturers for use by children aged 12 or under." The CPSC will determine whether a product meets the definition of "children's toy" based on the following factors.
- Is the product intended for play?
- Does the product's packaging, display, promotion, or advertising indicate that it is suitable for use by the specified age group?
- Do consumers generally know that the product is designed specifically for children of a certain age?
- The Age Definition Guidelines issued by the Consumer Product Safety Commission in September 2002 and similar guidelines issued subsequently.
The Consumer Product Safety Commission plans to define the scope of the phthalate ban by referring to the definition of "toy" in ASTM international standard F963-07 (Consumer Safety Specification for Toy Safety), which became a mandatory consumer product safety regulation on February 10.
According to the standard, the Consumer Product Safety Commission proposed that the following products be excluded from the phthalate ban: bicycles and tricycles; slingshots and darts; playground equipment; non-powder spray guns; kites; art supplies, model sets and hobby products not primarily for recreational purposes; non-toy sports equipment, camping equipment, sporting goods, musical instruments and furniture; and motorized model airplanes, rockets, boats and land vehicles. On the other hand, general-purpose balls and small balls distributed as promotional items will be included in the ban.
Regular books (including those specifically designed for children) are generally not considered toys, but the Consumer Product Safety Commission has included some novel books, such as plastic books sold as bath toys or talking books, in the phthalate ban. Other toys that may be included in the ban include bath toys, pool toys, toddler pools, dolls, action figures, costumes, masks, and balloons.
The phthalate ban also covers childcare products, specifically "consumer products manufactured to assist children aged 3 or under in falling asleep or eating, or to assist children in feeding or teething." The Consumer Product Safety Commission will determine whether a product is a childcare product under the Enhanced Consumer Product Safety Act based on the following factors:
- Does the product's intended use include assisting with falling asleep, eating, breastfeeding, or teething?
- Is this product specifically designed for children aged 3 or under?
- Is the product a primary or auxiliary tool to help with falling asleep, eating, breastfeeding, or teething?
- Do consumers know that the product is specifically designed to assist with falling asleep, eating, breastfeeding, or teething?
The Consumer Product Safety Commission plans to include products that children use directly in their mouths and products that come into direct contact with children as key products subject to the phthalate ban. These include teething toys, pacifiers, bibs, baby blankets, high chairs, sippy cups, baby bottles, and cribs.
According to the Consumer Product Safety Commission's proposal, products used by parents and not in contact with children are considered minor products and will not be subject to the phthalate ban. Examples include bottle warmers, bottle cleaning products, breast pumps, nursing pads, and high chair floor mats.
The Consumer Product Safety Commission is also consulting the industry on whether a range of other products should be subject to the phthalate ban, including pajamas, crib sheets, baby shaping pillows, baby swings, decorative swimming goggles, water sleeves, baby walkers, and wading pools.
Test methods for determining phthalate content
The Consumer Product Safety Commission has published a document detailing the testing methods it will use to determine whether a toy or childcare product contains any of the banned phthalates. The full document is available at [website address]. http://www.cpsc.gov/about/cpsia/phthalatesop.pdf.
Traceability Labeling for Children's Products
One provision of the Consumer Product Safety Enhancement Act requires manufacturers to affix permanent labels with clear traceability information to children's products for recall purposes, effective August 14. The Consumer Product Safety Commission plans to publish a notice in the Federal Register shortly, requesting industry feedback on this requirement.
The association is particularly focused on the following issues:
- Conditions and circumstances to consider when deciding whether to add tracking tags to children's products.
- The requirement that manufacturers and private label owners adopt standard label naming methods, styles, and layouts, versus the absence of such regulations, raises the question of how this affects manufacturers' ability to determine the production location and date of their products.
- The requirement that manufacturers and private label owners adopt standard label naming methods, styles, and layouts, versus the absence of such regulations, raises the question of how this affects consumers' ability to identify recycled products.
- How should tracking data be displayed in English or other languages, or should the data not be displayed in any particular language (e.g., using alphanumeric codes and a publicly accessible reference index)?
- If a product contains tracking data displayed in an electronically readable format, does it provide any substantial benefit to consumers? If so, under what circumstances and in what electronic format would it be most beneficial?
- If a product is privately labeled, what methods should the seller use to provide consumers with the required manufacturer information?
- If there are prescribed formats for labels, how long does it take for businesses to comply with the labeling requirements?
- Are there any successful examples of tracking tags in other jurisdictions?
– Reference source: Hong Kong Trade Development Council, 2009-02-28
