Last week, Cheryl Falvey, the General Counsel of the US Consumer Product Safety Commission (CPSC), issued an advisory opinion letter regarding children’s wearing apparel and phthalates in response to a request from the American Apparel & Footwear Association (AAFA). The AAFA requested an immediate formal written opinion explicitly excluding children’s apparel from the phthalate ban specified in the Consumer Product Safety Improvement Act (CPSIA). The CPSIA bans six different types of phthalates under either a permanent or interim basis beginning February 10, 2009. Under the permanent ban, children’s toys1 and child care articles2 cannot contain concentrations of more than 0.1 percent each of DEHP, DBP, or BBP.  Under the interim ban, a child care article or a children’s toy that can be placed in a child’s mouth3 cannot contain concentrations of more than 0.1 percent each of DINP, DIDP, or DnOP. The advisory opinion provides general guidance on the types of children’s wearing apparel that may be subject to the phthalate restrictions. Wearing apparel includes any costume or article of clothing intended to be worn by an individual, except hats, gloves, and footwear.

According to the advisory letter, children’s wearing apparel generally is not considered a toy because it is not intended to be played with by a child. The determination of whether an apparel product is considered a toy and subject to the phthalate restrictions would be made on a case-by-case basis, taking into account the marketing and play value of the item. For example, a costume designed or intended for a child 12 years old or younger for use in a theatrical production would not be considered a children’s toy and, as such, would not have to comply with the phthalate restrictions. Similarly, children’s rainwear made of vinyl or other plastic or plastic-like material would not be subject to the phthalate restrictions because it would not be considered a toy. Dress or play costumes sold as part of a toy set and intended to be worn during play, however, would be considered a toy and subject to the phthalate ban.

The advisory letter also explains that children’s wearing apparel such as sleepwear and bibs would be subject to the phthalate requirements. While these items are not toys, bibs and sleepwear for children three years of age and under would be considered child care articles because they are designed or intended to facilitate sleep or feeding.

Finally, the advisory letter states that adult wearing apparel is not subject to the phthalates limits.

We will continue to monitor CPSC activities with respect to phthalates. Should you have any questions regarding this advisory opinion, please contact any of the individuals below.

Related Documents: 

• General Counsel Letter on the Section 108 Phthalates Restrictions and Wearing Apparel

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Robert G. Edwards
edwards.robert@arentfox.com
202.857.6346

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338

1 “Children’s toy” is defined as a consumer product designed or intended for a child 12 years old or younger for use by the child when the child plays.

2 “Child care article” is defined as a product designed or intended by the manufacturer for a child three and under to facilitate sleep, feeding, sucking, or teething.

3 A toy can be placed in a child’s mouth if any part of the toy can actually be brought to the mouth and kept in the mouth by a child so that it can be sucked and chewed.  If the children’s product can only be licked, it is not regarded as able to be placed in the mouth.  If a toy or part of a toy in one dimension is smaller than 5 centimeters, it can be placed in the mouth.