CPSC Declares That Phthalate Ban Will Not be Retroactive but Will Apply Only to Products Manufactured after February 10, 2009
The Consumer Product Safety Commission (CPSC) has just published a CPSC General Counsel opinion letter on its Web site responding to Arent Fox attorneys Georgia Ravitz and Scott Cohn concerning the forthcoming ban on phthalates in children's toys and child care articles, and its applicability to product inventory as of February 10, 2009. According to the letter signed by CPSC's General Counsel, the phthalate prohibitions of the Consumer Product Safety Improvement Act of 2008 will not apply to existing inventory of children's products as of February 10, 2009, the effective date of the ban. Rather, the ban will apply only to products manufactured after the February 10, 2009 effective date. Thus, products in inventory on that date, as well as products manufactured before that date, will not require any testing for phthalates. Please note that while CPSC's General Counsel states that the Commission itself has not reviewed or approved this opinion, and that it is subject to change, it is our understanding that the Commission is likely in agreement with this interpretation.
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CPSC Requests Comments and Information from Industry on Extent of Use of Phthalates and Plastics in Children’s Toys and Child Care Articles
The Consumer Product Safety Improvement Act of 2008 (CPSIA) bans the sale of children’s toys and child care articles containing certain phthalates beginning February 10, 2009. Phthalates are chemicals widely used as plasticizers in the manufacture of some consumer product plastics, particularly PVC (“vinyl”), to make them softer and more flexible. The CPSIA permanently bans the manufacture, import, distribution, and sale of children’s toys or child care articles containing more than 0.1% of three types of phthalates – BBP, DBP and DEHP. The CPSIA also includes a similar, but interim, ban on toys that can be placed in the mouth and child care articles if they contain more than 0.1% of three other phthalates – DIDP, DINP and DnOP. Under the CPSIA, the Consumer Product Safety Commission (CPSC) must appoint a Chronic Hazard Advisory Panel (CHAP) to evaluate the available safety data on DIDP, DINP and DnOP and decide whether to continue the interim ban. The CHAP must also determine whether bans on other phthalates or their replacement chemicals are needed.
Companies will have to conduct extensive testing to determine whether materials used in toys and child care articles manufactured after February 10, 2009 comply with the new phthalate restrictions. Currently, there is no widely accepted analytical method for phthalate testing, nor has CPSC provided clear guidance as to whether testing is required for all materials, for all plastics, or for soft PVC-type plastics alone.
CPSC is now soliciting comments and information on the extent of phthalate and plastics use in toys and child care articles, on appropriate test methods for their analysis, and on human exposure and phthalate toxicity. CPSC’s request includes answers to the following general questions:
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What types of toys (including those that can be mouthed), child care articles, and other children’s products contain PVC?
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Apart from PVC, what plastics and other polymers are currently found in children's toys and child care articles, and which ones will still be used after the February 10, 2009 deadline ? Are phthalates used in any of these materials and, if so, for what purpose?
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What specific phthalates or phthalate alternatives are currently used in children's toys and child care articles, which ones will be used after February 10, 2009, and for what purpose?
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Are phthalates or phthalate alternatives used in children's products other than as PVC plasticizers and, if so, which products?
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Might other phthalates or phthalate alternatives be used in children's products in the future?
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What analytical methods are suitable for routine analysis of children's products for the six prohibited phthalates?
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Are there any suitable methods available for rapid screening of children's products for plasticizers?
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Is there any new information on the toxicity of phthalates or phthalate alternatives, or of PVC or other materials that may contain them?
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Are there any new data on migration of phthalates or phthalate alternatives from children's products or from PVC specifically?
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Is there any new information on human exposure to phthalates or phthalate alternatives from all sources, or on levels of these chemicals in human tissues and bodily fluids?
CPSC has changed the deadline for submitting comments from February 11, 2009 to January 12, 2009. In addition, CPSC has postponed the December 4, 2008 meeting on phthalates to allow its staff time to review responses to the Request for Comment and Information prior to the meeting.
We strongly recommend that companies consider submitting comments to CPSC. This information should assist the Commission in determining the extent of materials that should be tested for phthalates and how the testing should best be performed. It also should assist the CHAP in its decisions on the interim ban and recommendations with respect to other phthalates and their replacement chemicals.
Arent Fox will continue to monitor CPSC’s activity with respect to phthalate regulation. In the meantime, should you have any questions regarding CPSC’s request for comments or would like to discuss the opportunity to submit information, please contact any of the individuals below.
Related Documents:
Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939
James R. Ravitz
ravitz.james@arentfox.com
202.857.8903
Robert G. Edwards, PhD
edwards.robert@arentfox.com
202.857.6346
Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984
Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338