In an attempt to provide some “common-sense and workable solutions” to the considerable problems associated with implementation of the Consumer Product Safety Improvement Act of 2008 (CPSIA), US Rep. John D. Dingell, D-Mich., recently sent a letter to Consumer Product Safety Commission (CPSC) Acting Chairman Nancy Nord and Commissioner Thomas Moore requesting certain information regarding the new legislation.  Last Friday, CPSC staff (through Acting Chairman Nord) provided a detailed response to Rep. Dingell on the significant limitations contained within the legislation and their impact on both the Commission and industry.  The information contained within the staff letter will likely serve as a basis for further discussions among members of Congress to address some of the issues posed by the legislation.¹ 

In its response, CPSC staff identifies the following three major issues associated with the CPSIA: (i) the retroactive application of the lead and phthalates requirements to inventory; (ii) the wide variety of products covered by the CPSIA because “children’s product” is defined as products intended for children 12 years of age or younger; and (iii) the impact of the new testing and certification requirements for all consumer products and the third-party testing requirements for children’s products.  CPSC staff offers the following recommendations to resolve these problems:

1. Limit the applicability of new requirements to products manufactured after the effective date, except in circumstances where the Commission decides that exposure to a product presents a health and safety risk to children.

2. Lower the age limit used in the definition of children’s products to better reflect exposure and give CPSC discretion to establish a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household.

3. Allow CPSC to address certification, tracking labels, and other issues on a product class or other logical basis, using risk-assessment methodologies to establish need, priorities, and a phase-in schedule.

CPSC staff provides detailed responses to each of Rep. Dingell’s questions, specifically outlining various problems associated with the CPSIA and seeking greater discretion in implementing the legislation.  A summary of the staff’s responses appears in more detail below. 

Practicability of the Commission and Industry to Meet CPSIA Deadlines
Noting that the regulatory agenda Congress established in the CPSIA is “aggressive,” the CPSC staff letter states that “the Commission staff must have some relief from the deadlines imposed” (emphasis in the original).  It explains that each provision of the CPSIA, such as the lead and phthalates limits and testing and certification requirements, will require more time to implement than originally anticipated.  CPSC staff offers several suggestions to Congress that, if used in combination, would help resolve some of the issues it currently is facing with respect to implementation.  These suggestions include use of risk assessment to establish priorities and extension of CPSIA deadlines.  For example, with respect to the third-party testing requirements for standards other than cribs, pacifiers, small parts, lead in paint, and lead in children’s metal jewelry, CPSC staff suggests that Congress permit the agency to decide what level of testing is required for which products based upon risk.  Alternatively, the letter suggests that Congress continue to require certification and third-party testing for all children’s products, but permit the agency to prioritize as to when the testing to each children’s product safety rule, such as phthalates, will begin.  

CPSIA Impact on Small Manufacturers of Children’s Products
According to CPSC staff, Congress could provide the agency with the authority to conduct risk-based assessments that consider the relevant hazards, age, and exposure for lead and phthalates for thrift shops and second-hand stores that sell children’s products.  Under this approach, CPSC could exclude items such as bikes and ballpoint pens from the lead limits and focus on products such as metal jewelry and other objects that are likely to be mouthed or ingested.  CPSC also could adjust the age limit for certain product groups where the risk of exposure is low, and focus on those areas that present the greatest risk.

In addition, the letter suggests that Congress apply the new lead and phthalates limits prospectively to mitigate the impact on small business inventory available prior to enactment of the CPSIA.  It also suggests that Congress permit a more flexible exception process based on balancing of risks against the burdens posed by testing and certification costs.  Alternatively, Congress could allow the Commission the flexibility to determine which children’s products require testing and certification.

CPSIA Impact on Second-Hand Stores
According to the letter, the most significant issue posed by this legislation on second-hand stores is that they typically sell items manufactured several years before the stringent limits on lead and phthalates took effect.  Congress could help such resellers by addressing the issue of retroactivity and requiring that manufacturers meet the CPSIA limits for products manufactured after the effective date (e.g., February 10, 2009 for phthalates), but allowing resellers and retailers to continue selling products manufactured before the statutory deadlines. 

Congress also could establish separate rules for resellers, such as delaying the ban for re-sellers on selling children’s products that contain excess lead or phthalates to a later date.  Alternatively, resellers could be exempted entirely from the prohibition on the sale of products containing lead and phthalates. Children’s products that were banned under previous law, however, would not be exempted. 

Appropriateness of the 12 Years and Under Age Limit
According to CPSC staff, to determine which products should be subject to the lead limits, the boundary age could be lower than 12 in most cases.  The decision by Congress to establish an age limit of 12 has caused a wide variety of products that are rarely accessible to younger children, such as dirt bikes and ATVs, to fall under the CPSIA’s lead limits.  The staff letter notes that CPSC regulations previously have established age limits by product class, such as the small parts ban, which applies to products that are intended for children under three years of age. 

Age, however, is not the only factor that should be considered.  The letter states that likelihood and route of exposure are especially important factors that must be analyzed in deciding what products should be subject to the lead limits.  For example, objects that can be mouthed but not swallowed generally pose a lesser risk than products such as children’s metal jewelry, which can be ingested.

As a result, CPSC staff suggests that Congress provide the Commission with more discretion to grant exclusions from the lead or phthalate limits.  Congress could modify its stringent exclusion criteria and allow de minimis levels of absorption or change the focus to preventing any significant increase in blood-lead levels of a child, especially for children who are of the age of the intended user.  Congress also could provide CPSC with discretion to lower the age limit for certain classes of products or lower the age limit across the board and provide the agency with discretion to establish a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household.

CPSIA Impact on Books
CPSC staff suggests that Congress provide an exemption from the CPSIA requirements for certain types of books.  For example, Congress could limit the testing requirements to only those picture books that are provided to children much younger than 12 because such children are more likely to mouth these books, possibly exposing them to inks that have a higher lead content.  In addition, Congress could create a waiver process that would permit the Commission to “grandfather” in products made prior to August 14, 2008 if the Commission concludes that these products present only a de minimis exposure level and a negligible risk.

CPSC Implementation Discretion for the Commission
According to the staff letter, the CPSIA provides too little implementation discretion for the agency.  The lead limits, testing, certification, and tracking label requirements could be implemented in a more effective manner if the Commission had the discretion under the CPSIA to set these requirements on a product basis.  In addition, CPSC staff suggests that Congress permit the Commission to establish product exclusions from the lead limits by applying a de minimis standard as opposed to the stringent standard established in the CPSIA that permits exclusion of a product only when the scientific evidence demonstrates that lead in the product will not result in the absorption of any lead into the human body or have any other adverse impact on public health or safety.

Rep. Dingell is expected to address the issues noted in the CPSC staff letter with other members in the House and Senate and to request that Reps. Henry Waxman, D-Calif. and Bobby Rush, D-Ill., hold hearings on the problems associated with implementation of the CPSIA.

Please contact any of the individuals below if you would like to discuss the CPSC staff letter or the opportunity to contact members of Congress regarding the CPSIA. 

Related documents:
Letter from Acting Chairman Nancy Nord to Representative John Dingell

Letter from Commissioner Moore to Representative John Dingell

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

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1 In his separate response to Rep. Dingell, Commissioner Moore emphasized that the appointment of a third commissioner, who would also be the chairman of the CPSC, to the agency is critical for further implementation of the CPSIA.  He highlights that “any legislative ‘fixes’ are premature” and that “only the Commission should recommend what, if any, changes should be made to the CPSIA and no assumptions should be made that there are no other solutions than legislative ones until all three Commissioners have a voice in the matter.”