In response to the growing public outcry over the impact the Consumer Product Safety Improvement Act of 2008 (CPSIA) is having on charities, small businesses, and certain industries, several Senators and Representatives have introduced legislation to amend various provisions of the act and to provide regulatory relief. The focus of most of these legislative efforts has been on the sale of second-hand goods, the reach of the CPSIA to off-road vehicles, a delay in product compliance with the lead and phthalate standards, and increased regulatory flexibility for the Consumer Product Safety Commission (CPSC) to implement the act. While it is too early to determine whether Congress will pass (and the Administration will sign into law) any of these bills or incorporate some of their provisions into a larger piece of legislation, they nevertheless provide a framework of the key issues for companies to focus their efforts. A summary of several bills that have been referred to either the Senate Committee on Commerce, Science, and Transportation or the House Committee on Energy and Commerce appears below.

HR 1815 (Consumer Product Safety Solutions Act of 2009)

Perhaps the most significant piece of legislation at this time, HR 1815 was introduced by Rep. Joe Barton, R-Texas, and 16 other House Republicans on March 31, 2009. HR 1815 specifically makes the CPSIA limits on lead and phthalates prospective and provides CPSC with the flexibility to grant exceptions for various businesses and items.

Pursuant to the legislation, the limits on lead and phthalates that took effect on February 10, 2009 apply only to products manufactured after that date. The legislation further permits retailers to “sell-through” inventory for one year, ultimately requiring all children’s products, regardless of their date of manufacture, to comply with the 600 parts per million (ppm) lead limit beginning February 9, 2010. HR 1815 similarly delays compliance with the 300 ppm lead limit, requiring children’s products manufactured after August 14, 2010 to comply with this lower limit. Once again, the legislation incorporates a one-year sell-through period, requiring all children’s products, regardless of their date of manufacture, to comply with the 300 ppm limit beginning August 14, 2011. With respect to phthalates, HR 1815 requires children’s products manufactured after February 10, 2009 to comply with the new limits on these chemicals. Retailers, however, are permitted a one-year sell-through period, after which any children’s product, regardless of its date of manufacture, must comply with the phthalates limits.

In addition to the prospective provisions of the legislation, HR 1815 mandates that CPSC publish a rule outlining the testing methodology the Commission will use for determining compliance with the CPSIA restrictions on lead content and phthalates. It also creates a temporary compliance framework for lead content testing and certification and permits manufacturers to use any reasonable testing methodology for demonstrating compliance with these new limits. Further, HR 1815 permits testing of component parts to demonstrate compliance with the lead and phthalate content limits and modifies the difficult standard specified in the CPSIA for granting an exclusion of a product or material from the lead content requirements.

Finally, HR 1815 provides regulatory flexibility in Commission exemption authority. It authorizes the Commission to exempt or modify the tracking label requirements for any product or product category where such marking would generally be unduly burdensome or cost prohibitive in relationship to the potential risk presented by such product or category, or not practical due to the intended use of the product. Additionally, the bill specifically authorizes the Commission to delay the application of any part of the CPSIA with respect to a particular manufacturer, distributor, or retailer, or class of such companies, if CPSC determines that a delay would better promote public safety and is in the public interest. The Commission must publish the reason for any delay.

S. 374 and HR 968

Sen. Jim DeMint, R-SC, introduced S. 374 on February 4, 2009. This bill exempts second-hand sellers, defined in part as consignment shops, thrift shops, individuals who sell goods through the Internet or yard sales, and persons who sell products at auctions to benefit a nonprofit organization, from the lead content limits and tracking label requirements. S. 374 delays by six months the requirement that children’s products comply with each of the new levels for total lead content as follows: 600 ppm beginning August 2009, 300 ppm beginning February 2010, and 100 ppm, if deemed technologically feasible, beginning February 2012. With respect to testing, the bill requires third party testing of certain children’s products to take effect for products manufactured after August 9, 2009 and permits manufacturers to certify, based upon testing of each product component, that such product complies with the lead content limits.

This bill also prohibits CPSC or any state attorney general from initiating an enforcement proceeding under the Consumer Product Safety Act or the Federal Hazardous Substances Act regarding product certification and labeling and children’s products containing lead until thirty (30) days after the issuance of final rules, regulations, or guidance with respect to certain materials, products, and inaccessible component parts that may be deemed exempt by CPSC from the lead content limits, including electronic devices. Finally, S. 374 requires CPSC to waive any civil penalty for a good faith first violation.

HR 968, which was introduced by Rep. John B. Shadegg, R-Ariz., on February 10, 2009, is nearly identical to S. 374.

HR 1027 (Thrift Store Protection Act)

Rep. Bill Posey, R-Fla., and Rep. Bobby Bright, D-Ala., introduced HR 1027 on February 12, 2009. This bill exempts certain used items, including clothing, textiles, shoes, and books, sold by “second-hand sellers” from the lead content and tracking label requirements. Second-hand sellers include consignment shops and thrift shops, individuals who sell products through the Internet, yard sales, or other casual means, and persons who sell products at auctions to benefit a nonprofit organization. HR 1027 also requires the Comptroller General to conduct a study and provide recommendations to Congress on the application of consumer product safety standards, rules, and bans to certain used products and the impact such application has on second-hand sellers.

HR 1046 (Children’s Product Safety Enhancement and Clarification Act of 2009)

Rep. Adam H. Putnam, R-Fla., introduced HR 1046 on February 12, 2009. This legislation amends the CPSIA to exempt a children’s product made solely out of fabric from the provisions limiting the amount of total lead in children’s products and the requirement that a manufacturer certify, based on third party testing, that the product complies with an applicable children’s product safety rule. It also requires CPSC to work with small businesses, individuals who sell used goods, and charities who make a good faith effort to comply with the restrictions on total lead content and lead paint when considering enforcement action. CPSC must take into account economic, administrative, and other limits on the ability of such entities to comply with the lead limits, and the Commission must construe these provisions favorably to the entity.

HR 1587

Rep. Denny Rehberg, R-Mont., introduced HR 1587 on March 18, 2009 to address the broad reach of the CPSIA to off-highway vehicles, such as all-terrain vehicles (ATVs) and snowmobiles.1 This legislation amends the CPSIA and exempts off-highway vehicles from the lead limits.

HR 1587 also modifies the CPSIA and deletes the word “any” from the statement that in order to exclude a product or material from the lead content limits, the evidence must demonstrate that lead in such product or material will not “result in the absorption of any lead into the human body…” (emphasis added)  This revision could provide some relief to companies attempting to demonstrate that a product or material satisfies the difficult evidentiary standard for exclusion from the lead content limits.

S. 389

Sen. Robert F. Bennett, R-Utah, introduced S. 389 on February 5, 2009. This bill permits the Commission to delay the effective dates for the new lead standards in accordance with the date that CPSC promulgates regulations on third-party testing, lifts the stay of enforcement for third-party testing, or 540 days after enactment of the CPSIA, whichever is earlier.

S. 608 (Common Sense in Consumer Product Safety Act of 2009)

Sen. Jon Tester, D-Mont., introduced S. 608 on March 17, 2009. S. 608 amends the CPSIA to prohibit secondary sales and repairs of children’s products from being considered an introduction or delivery for introduction into interstate commerce, effectively rendering such products exempt from the lead content limits. This bill also excludes vehicles designed or intended primarily for children 7 years of age or older from being considered a children’s product for purposes of the new lead content limits.

Please contact any of the individuals below if you have questions regarding the proposed legislation summarized above if you would like to discuss potential lobbying efforts with respect to the CPSIA.

1 Rep. Denny Rehberg previously introduced HR 1510. This bill required CPSC to exempt certain ATVs from the lead limits only if the Commission determines that compliance is not technologically feasible because of the presence of lead-containing parts that are required for safety or functionality.

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, PhD
edwards.robert@arentfox.com
202.857.6346

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