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New federal limits on phthalates in toys and child care products take effect by February 10, 2009.  Under the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), it will be unlawful to manufacture, sell or import any children’s toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP). 
 
Also by February 10, 2009, there will be an interim prohibition on manufacture, sale, or importation any children’s toy that can be placed in a child’s mouth or child care article that contains concentrations of more than .1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).

The phthalates provision mirrors, and thus will preempt, California’s new law concerning phthalates in children’s products.  California Health & Safety Code Section 108937, which takes effect January 1, 2009, prohibits the manufacture, sale, or distribution in commerce of any toy or child care article that contains DEHP, DBP, or BBP in concentrations exceeding .1 percent.  It also prohibits the manufacture, sale, or distribution in commerce of any toy or child care article intended for use by a child under three years of age if that product can be placed in the child’s month and contains DINP, DIDP, or DnOP in concentrations exceeding .1 percent.

Lead in Children’s Toys 

A new federal limit on the total lead content in children’s products also takes effect on February 10, 2009.  After that date, any product designed or intended primarily for children 12 and younger may not contain more than 600 ppm of lead.  Allowable lead content is further reduced to 300 ppm by August 14, 2009, and 100 ppm by August 14, 2011.  This lead law does not preempt California’s Proposition 65.

Labeling Requirement for Advertising Toys and Games

The packaging for toys and games intended for use by children from 3 to 6 years old and containing small parts, balloons, small balls or marbles must already contain a cautionary statement regarding choking hazards.  This same warning must now appear on all product advertising.  For Internet website ads, the requirement took effect December 12, 2008.  For catalogues and other printed materials, the requirement will take effect February 10, 2009.

Manufacturers, importers, distributors, or private labelers of such products must inform retailers if a cautionary statement is required.  Conversely, retailers have a duty to ask if a cautionary label is required for a particular product.  If the retailer asks and receives no information or false information, the retailer is not liable.

Mandatory Toy Safety Standards

Also by February 10, 2009, the provisions of ASTM International Standard F963-07 Consumer Safety Specifications for Toy Safety (ASTM F963) become a mandatory consumer product safety standard.

This standard relates to the ingestion or inhalation of magnets in children’s products; toxic substances; toys with spherical ends; hemispheric shaped objects; cords, straps and elastics; and battery operated toys. 

This standard additionallyplaces limits on the amount of lead (and other heavy metals, namely antimony, arsenic, barium,cadmium, chromium, mercury and selenium) based on the solubleportion of that material usinga specified extraction methodology given in the standard. Toys manufactured after February 10,2009 will have to meet these requirements.

General Certification Requirements 

Certain other provisions of the CPSIA are already in effect.  For example, every manufacturer, importer, distributor and private labeler of a product regulated by the Commission must certify that such product complies with all rules, bans, standards or regulations applicable to the product.

Such regulated products include carpets and rugs, children’s products, certain cleaning products, clothing, cribs, prescription and over-the-counter drugs, fabrics, furniture painted with paint containing lead, mattresses, children’s sleepwear, video games, and all products containing lead.  This link provides a complete list of regulated products and their corresponding regulations. 
 
This general certificate of conformity does not need to be based on testing done by a third-party laboratory.  Certification must be based on a test of each product or a reasonable testing program. 

Third-Party Testing of Children’s Products

An additional third-party testing requirement is required for all children’s products (primarily intended for children 12 years of age or younger).  Every manufacturer (including an importer) or private labeler of a children’s product must have its product tested by an accredited independent testing lab and, based on the testing, must issue a certificate that the product meets all applicable CPSC requirements.

The third-party testing and certification requirements for children’s products are phased in on a rolling schedule. Once the Commission issues the laboratory accreditation requirement for that category of children’s products, each children’s product in that category that is manufactured more than ninety days after that date must be tested and certified to the applicable requirements, as shown in the schedule below.

 

CPSC Publishes Accreditation Procedure

Third-Party Testing Required

Lead Paint

September 22, 2008*

December 22, 2008

Small Parts

November 2008

February 2009

Metal Jewelry

December 2008

March 2009

300 ppm Lead Content

May 2009

August 2009

CPSC Children’s Product Safety Rules

June 2009

September 2009

Certificates

The required certificates, whether general conformity certificates or certificates for children’s products based on third-party testing, must be in English and also may be in another language. They must identify the following information:
 
•     the product;
•     the foreign or domestic manufacturer certifying compliance;
•     the U.S. importer, if applicable, certifying compliance;
•     the private labeler, if applicable, certifying compliance;
•     contact information for the entity maintaining records of test results;
•     date and place where product was manufactured;
•     date and place where product was tested for compliance; and
•     any third-party laboratory on whose testing certificate relies.
 
The required certificates must accompany each import (and domestic manufacturer) shipment.  The certificate must be supplied to distributors and retailers, and be supplied to CPSC upon request.  An electronic certificate will suffice, so long as it contains all of the required information.  A sample certificate, instructions for completion, and answers to frequently asked questions are available here.  

Products without the required certificate cannot be imported or distributed in commerce in the United States. The certificate must accompany the product or product shipment and must be available to CPSC and Customs and Border Protection upon request. Failure to furnish the certificate or furnishing a false certificate can subject the manufacturer or private labeler to civil and criminal penalties.

Tracking Labels for Children’s Products

By August 14, 2009, manufacturers must put a tracking label or other distinguishing permanent mark on any consumer product primarily intended for children 12 and younger.  The tracking label must contain certain basic information, including the source of the product, the date of manufacture and more detailed information on the manufacturing process such as a batch or run number.

Export of Recalled and Non-conforming Products

The Commission may prohibit export for purposes of sale any recalled or nonconforming consumer products, unless the importing country notifies the Commission that it accepts importation of such products.

Penalties            

The maximum civil penalties for violation are $100,000 for each violation and $15 million for any related series of violations.  Factors to be considered in assessing the amount of a civil penalty include the nature, circumstances, extent, and gravity of the violation.

For more information, contact Merrit M. Jones, Marcy J. Bergman, or any member of the Retail Law Practice Group.

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