Consumer Product Safety Improvement Act

Issue 25, March 4, 2009

The Consumer Product Safety Improvement Act of 2008 (CPSIA) was enacted into law on August 14, 2008. Part of the act provided for certification and testing of all products subject to Consumer Product Safety Commission (CPSC) standards, bans and oversight, effective on February 10, 2009. The act also contained regulations regarding the importation and sale of ATVs, products containing lead and plastics containing phthalates, with special emphasis on toys and children’s products.

Beginning February 10, 2009 children’s toys and child care articles containing more than 0.1% of the Phthalates BBP, DBP ore DEHP are permanently and immediately prohibited. Children’s toys that can be placed in a child’s mouth or child care articles containing more than 0.1% of the Phthalates DINP, DIDP or DnOP are prohibited on an interim basis until the CPSC determined whether or not to continue the ban. Any such products must be removed from the supply chain immediately, regardless of the date of manufacture.

The CPSC is focusing on higher risk plastic bath items and small plastic toys. Items such as bath toys (especially those containing PVC), teethers, rattles and pacifiers will draw particular attention.

On January 30, 2009 the CPSC Commissioners voted to issue a one year stay of enforcement for certain testing and certification requirements for manufacturers and importers of CPSC regulated products. The stay means that the testing and certification requirements (but not the safety requirements) originally scheduled to go into effect on February 10, 2009 will be delayed until February 10, 2010, with certain exceptions.

• The following items are not included in the delay and must still meet lead and phthalates limits, mandatory toy standards and certification requirements.
• The ban on lead in paint and other surface coatings for products made after December 21, 2008 is in effect and will be enforced.
• The standards for pacifiers and for full size and non full size cribs for products made after January 20, 2009 will be in effect.
• The ban on small parts in products made after February 15, 2009 has not been lifted.
• The limits on lead content of metal parts of children’s jewelry made after March 23, 2009 will go into effect.

In addition, the certification requirements applicable to ATVs built after April 13, 2009 will be enforced.

The decision to delay the testing and certification requirements does not delay enforcement of nor change the actual safety standards requirements for the products. The products must still meet the standards but, except for those listed above, need not be certified until February 10, 2010. Manufacturers will still need to meet the lead content and phthalates content limits, ASTM F963 mandatory toy standards (such as the small parts requirements) and all other safety requirements.

The CPSC is currently conducting investigations to identify items that, by their very nature, will be exempt from the final rule. For the most part these items are made of natural materials such as wood, cotton, wool and certain metals and alloys. For these items it will not prosecute any person for manufacturing, importing, distributing or selling a children’s product on the basis of a led content above 600 ppm unless the Commission learns that the person actually knew that the product exceeded the limit. Those items that the CPSC is currently presuming to be not in violation are

• Ordinary children’s books printed after 1985 by conventional methods on cardboard or paper. Children’s books with plastic, metal or electronic parts are not included in this exemption.
• Dyed or undyed textiles and non-metallic thread and trim used in children’s apparel or other fabric products such as baby blankets. The exemption does not apply to leather, vinyl or PVC, rhinestones, metal or plastic ornamentation, or metal fasteners with a possible lead content.
• Certain components of children’s electronic devices that cannot be made without lead because there is no feasible substitute. For the most part these are interior components that are inaccessible to the child. The CPSC will accept a manufacturer’s determination that the lead-containing part is inaccessible to a child if it is reasonable. Paint or electroplating are not considered barriers to access. The CPSC will investigate every five years to determine if a feasible substitute is available.

The CPSC still requires companies to meet their reporting obligation under federal law and to immediately tell the CPSC of any children’s product that exceeds the 600 ppm lead content. Children’s products above the lead content limit or above the Phthalate limit cannot be exported and must be safely destroyed.

Toys are defined as “consumer products designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.” If necessary, the CPCS will rule on whether or not an item is a toy based on the intended use, the packaging or promotional advertising, the public perception and the CPSC’s Age Determination Guidelines.

Some examples of toys subject to the phthalate ban would be bath toys, pool toys, toddler wading pools, dolls, action figures, costumes, masks, balloons, small balls and novelty books such a plastic books and books that make sounds. Item that will not be considered toys are, among others, bicycles and tricycles, playground equipment, art materials, sporting goods, athletic equipment (including regulation size balls), camping goods and musical instruments. Toy sporting goods are still considered toys, however.

Toys that can be put into the mouth are generally smaller than 5 cm in one dimension. Inflatable toys such as beach balls and pool toys are considered in their deflated condition if they are intended to be inflated by the consumer.

Manufacturers and importers must be aware of all standards and testing and certification requirements take steps to ensure that they meet the current requirements and prepare to meet the requirements of the future. Also, note that, while testing is not currently required for many of the products the lead and phthalate limits do apply and the products must comply with the limits set by the act. Testing may be a necessity, if not a requirement. The CPSC suggests that importers and sellers refer to the CPCS webpage to determine if their products are covered by CPSC standards. This site is http://www/cpsc.gov/businfo/regsbyproduct.html. The importing community is urged to take steps to ensure that their products meet the SPSC standards today and in the future.

If you require additional information or clarification, please contact your local DHL Global Forwarding representative.

Sincerely,

Karl F. Krueger
Regulatory Compliance Consultant
Licensed Customs Broker
NCBFAA Certified Customs Specialist