At the end of July, Congress voted overwhelmingly to adopt sweeping product safety legislation. HR 4040, Consumer Product Safety Improvement Act of 2008, bans or limits the levels of phthalates and lead in children’s products, requires third-party testing and manufacturer certification of children’s products, establishes a public consumer product safety database, provides whistleblower protections, and authorizes state attorneys general to enforce Consumer Product Safety Commission (CPSC) regulations. President Bush is expected to sign HR 4040 into law.

Phthalates Ban, Lead Limits and General Toy Safety
One of the most controversial measures included within HR 4040 concerns phthalates. HR 4040 permanently prohibits or bans, on an interim basis, the sale of any children’s toy or child care article containing more than 0.1 percent of certain phthalates. In addition, HR 4040 imposes stringent lead standards for products intended for children age 12 or younger.

HR 4040 establishes the American Society for Testing and Materials Standard F963-07, Consumer Safety Specifications for Toy Safety, as an interim consumer product safety standard. It also requires third-party testing of certain children’s products prior to importation or distribution and manufacturer certification that its products comply with all applicable rules, bans and standards.

Product Tracking and Public Database
Within one year of enactment, manufacturers of children’s products must place distinguishing marks on their products and packaging to aid in the recall process. In addition, the legislation directs the CPSC to establish and maintain a publicly available consumer product safety database, which will contain reports from consumers, government officials, health care professionals, child service providers and public safety entities. Manufacturers and private labelers will receive advance notice of any reports that identify their products and may request redaction of only those portions that contain confidential or inaccurate information.

State Attorneys General Enforcement and Whistleblower Protection
Other controversial measures include authorization for state attorneys general to enforce CPSC regulations and standards and whistleblower protections. The legislation permits state attorneys general to bring actions under the CPSC’s product safety rules and regulations on behalf of their residents after first notifying the Agency.

HR 4040 also includes a whistleblower protection that permits an employee to file a complaint within 180 days with the US secretary of labor alleging discharge or discrimination because he reported potential CPSC violations; testified or is about to testify in a proceeding concerning such violation; or objected to or refused to participate in an activity that he reasonably believed violated a CPSC order, rule, regulation or standard.

Preemption
HR 4040 appears to preempt states from adopting more stringent standards with respect to lead in children’s products. It is unclear, however, whether states can adopt their own testing protocols for toys.

The full text of HR 4040 may be accessed by clicking here.

If you have any questions about the pending legislation, please do not hesitate to contact the Arent Fox attorneys listed below.

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

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

Amy M. Swift
swift.amy@arentfox.com
202.857.6338