The U.S. Senate and House of Representatives have approved the Conference Report on H.R. 4040, known as the Consumer Product Safety Improvement Act of 2008 ("the Act"), and will be sending the legislation to the President for his signature.
This legislation is the most comprehensive overhaul of consumer product safety laws since the U.S. Consumer Product Safety Commission ("CPSC") was created by passage of the Consumer Product Safety Act ("CPSA") in 1972. The new law was triggered by well-publicized recalls of imported toys with lead paint and other hazards, but the legislation is far broader in scope and potentially touches all manufacturers, importers, distributors and retailers of consumer products.
The full scope and impact of the new legislation will not be known for some time because it directs the CPSC to create a host of new regulations and procedures, including some based upon research and investigations that have yet to be performed. Some of the most significant impacts of the Act include widespread bans of lead and phthalates in children's products, mandatory third party testing and certification for imported children's products, new warnings in advertising and websites for toys and games, substantially increased civil penalties (up to $15 million), allowing state attorneys general to enforce federal product safety laws, giving the CPSC greater authority to dictate the terms of product recalls, whistleblower protection for employees who report safety violations, and stepped-up enforcement efforts involving other federal agencies, foreign product safety regulators and state health agencies.
Below are highlights of the changes that will result from the enactment of H.R. 4040.
Toys and Children's Products
- Many of the Act's provisions, including bans on
phthalates and lead, are tied to new definitions and general
rules applicable to all children's products and more
specific rules for toys and child care articles.
- "Children's products" are
defined as "a consumer product designed or intended
primarily for children 12 years of age or younger." The
CPSC issued age determination guidelines for
children's products in 2002 that are referenced in
the new Act.
- "Children's toys" include
products "designed or intended by the manufacturer for a
child 12 years of age or younger for use by the child when
the child plays."
- "Child care articles" are defined as
"a consumer product designed or intended by the
manufacturer to facilitate sleep or the feeding of children
age 3 and younger, or to help such children with sucking or
teething."
Ban on Phthalates in Toys and Children's Products
- Prohibits the sale of children's toys and child
care articles with concentrations of more than 0.1 percent of
di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP),
or benzyl butyl phthalate (BBP). Effective 180 days after
enactment.
- Establishes an interim (effective in 180 days) ban on the
sale of children's toys that can be placed in a
child's mouth and all child care articles that
contain more than 0.1 percent of diisononyl phthalate (DINP),
diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
Toys that can be put in the mouth are defined to include toys
or parts smaller than five centimeters in dimension, and
exclude toys that can only be licked.
- Provides only limited preemption of state laws regulating
phthalates and phthalates alternatives - many states have
adopted laws banning various phthalates in the past
year.
Ban on Lead in Toys and Children's Products
- Mandates a phased-in ban on lead in all
children's products, requiring that lead levels be
reduced to 600 parts per million within 180 days, 300 parts
per million within one year; and 100 parts per million within
three years of the bill's enactment.
- Special provisions apply to lead paint (0.009 percent and
possibly lower after further studies are conducted).
Inaccessible component parts are generally exempt.
Additional Safety Rules Affecting Toys and Children's Products
- Adopts ASTM F963-07 standard as a mandatory
consumer product safety rule and directs studies that may
result in additional rules. ASTM F963-07 is a comprehensive
standard applying to most toys; it does not cover sporting
goods, athletic equipment, musical instruments or furniture,
but does apply to "toy counterparts" of such
items.
- Mandates testing and certification of imported
children's products for compliance with safety
standards, with detailed requirements for laboratory
accreditation, firewalling rules for labs owned or controlled
by the manufacturer, and priorities for testing certain
products. The testing and certification provisions take
effect 90 days after the CPSC has published its requirements
for accreditation of third party testing bodies; the CPSC
must publish these requirements within 30 days for lead
paint, 60 days for cribs, 90 days for small parts, 120 days
for metal jewelry, 210 days for baby bouncers, walkers and
jumpers, and 10 months for all other children's
products.
- Creates new rules for durable infant and toddler
products, including cribs, high chairs, strollers,
infant carriers, bath seats, gates, swings and other items,
that will facilitate owner registration by requiring
manufacturers to provide postpaid registration cards and to
take other steps that will enable more efficient distribution
of recall and safety notices.
- Mandates permanent tracking labels on
children's products and their packaging with source,
production date and batch information that will better enable
recalled products to be tracked and identified. These labels
must be in place within one year of enactment.
- Expands warning requirements for choking hazards
for children's toys and games. The Federal Hazardous
Substances Act requires warnings on packaging and
accompanying descriptive materials for toys and games
containing small balls, balloons, small parts and marbles
that they present choking hazards and are not for children
under age 3. The new Act requires that these choking warnings
be included in all Internet advertisements within 120 days of
enactment and in all catalogs and other printed materials
within 180 days if they provide a "direct means for the
purchase or order of the product."
Recalls and Enforcement
- Greatly increases civil penalties for violations
of the CPSA, as well as the Flammable Fabrics Act and the
Federal Hazardous Substances Act, to $100,000 for each
violation, with a maximum cap of $15 million for a
related series of violations (the existing limits are
$8,000/$1,825,000).
- Authorizes state attorneys general to enforce
the CPSA and related laws by seeking injunctive relief, but
requires states to give the CPSC advance notice of any intent
to initiate a state action. (State enforcement previously was
prohibited, and the CPSC objected to this provision of the
new Act.)
- Increases criminal penalties by permitting
larger fines, up to five years' imprisonment, and
forfeiture of assets associated with a violation, and
removes a requirement that directors, officers and
agents be aware of violations before being criminally
charged.
- Eliminates the right of a party recalling a product to
elect whether they will offer a refund, repair
or replacement for recalled products and permits the
CPSC to require a refund, repair and/or replacement
as the CPSC determines to be in the public interest.
- Creates new requirements for the content and
dissemination of recall notices and permits the CPSC to
require recall notices in languages other than
English.
- Prohibits any CPSC regulatory activities from
preempting damage claims arising under common law
and state statutes, or from preempting California Proposition
65.
- Establishes whistleblower protection for private
employees who report violations, testify or otherwise provide
assistance in consumer product safety enforcement
proceedings.
- Provides stronger prohibitions against selling banned or
recalled products, or any products that violate product
safety regulations.
- Calls for a study to determine the feasibility of
requiring that manufacturers, importers and retailers
establish escrow funds, purchase insurance or otherwise
provide financial security to pay for recalls and/or
destruction of recalled products.
Other Products and Substances
- Bans 3-wheeled all-terrain vehicles (ATVs) and
strengthens regulation of other ATVs, especially those
intended for use by youth.
- Mandates a study of risks resulting from
formaldehydes in textiles and apparel.
Import-Export Issues
- Imposes mandatory testing and certification for imported
children's products, as discussed above.
- Prohibits the export of recalled or non-conforming
products to other countries, subject to certain
exceptions.
- Establishes policies to utilize the International Trade
Data System established under the Tariff Act of 1930 and to
increase cooperation with U.S. Customs and Border Protection
to prevent unsafe products from entering the United
States.
- Establishes procedures to destroy products that have been
refused admission into the United States for failure to
conform to safety regulations.
- Authorizes further studies to assess the effectiveness of
measures and activities intended to prevent the importation
of unsafe products into the United States.
Administrative and Procedural Changes
- Mandates that the CPSC establish a searchable
database, accessible to the public on the Internet, on
the safety of consumer products that will include reports
from certain sources on deaths and injuries reportedly caused
by consumer products, and which includes
manufacturers' names, product names and other
information.
- Requires that the CPSC shares information with state
public health agencies.
- Bans industry-sponsored travel by CPSC commissioners and
staff, and authorizes a travel budget to address the
increasingly global market for consumer products.
- Restores the five-member Commission (it has operated with
only three commissioners) and authorizes significant budget
increases for the agency.
- Provides for expedited rulemaking by the CPSC.
If you have questions about this Alert or would like more information, please contact Paul S. Rosenlund, any other member of the Products Liability and Toxic Torts Practice Group or the attorney in the firm with whom you are regularly in contact.
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