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Consumer Product Safety Improvement Act of 2008

The new safety act bans certain phthalates. One of those phthalates, DEHP, is the dominant plasticizer used in polyvinyl chloride (PVC), due to its low cost. PVC, in the form of plastisol, is used to coat the platforms on the majority of commercial playground equipment sold in the U.S. and Canada.
Photo: Freedom Playground, MacFarlane Park, Tampa, courtesy of Hardeman Kempton & Associates

There is a new product safety act in town and companies, and no doubt specifiers, are scrambling to understand its import.

Congress overwhelmingly approved the Consumer Product Safety Improvement Act of 2008 (424 to 1 in the House and 89 to 3 in the Senate), and President Busch signed it into law Aug. 14, 2008. The act becomes effective in Feb. 2009.

By Feb. 2009, it will be unlawful to manufacture or distribute any children's toy (or play equipment) that "contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).

The act's stated purpose is to "establish consumer product safety standards and other safety requirements for children's products and to reauthorize and modernize the Consumer Product Safety Commission."

The U.S. Consumer Product Safety Commission (CPSC) is the federal agency that will be in charge of enforcing the legislation.

While we're still trying to digest the intricacies of this turgid document, here are some of its section headings:

  • Sec. 101. Children's products containing lead; lead paint rule.
  • Sec. 102. Mandatory third-party testing for certain children's products.
  • Sec. 103. Tracking labels for children's products.
  • Sec. 104. Standards and consumer registration of durable nursery products.
  • Sec. 105. Labeling requirement for advertising toys and games.
  • Sec. 106. Mandatory toy safety standards.
  • Sec. 107. Study of preventable injuries and deaths in minority children related to consumer products.
  • Sec. 108. Prohibition on sale of certain products containing specified phthalates.

Sec. 101. Children's products containing lead; lead paint rule:

The new law stipulates that any children's product with lead levels above 600 ppm as of Feb. 2009 will be illegal. By Feb. 2010, that level will drop to 300 ppm; and by Feb. 2012 to 100 ppm.

Sec. 102. Mandatory third-party testing for certain children's products:

Not only will manufacturers be required to test each of their own products and certify that they comply with "all rules, bans, standards, or regulations applicable to the product under this Act," but they will also have to give their children's products to an accredited third-party tester for compliance with the children's product safety rules.

Sec. 108. Prohibition on sale of certain products containing specified phthalates:

Phthalates are an issue for playground equipment. Phthalates are esters of phthalic acid used mostly in plastics, particularly PVCs (polyvinyl chloride) to make them softer and more flexible.

California, Washington and Vermont have already passed laws banning phthalates in toys and children’s products. Wal-Mart and Toys R Us (and Babies R Us) are also phasing out all products with phthalates. (The European Union has already banned the use of six phthalates.)

Previous safety regulations have only applied to goods made and distributed after enactment. While some provisions in the new law were written this way, the new rules on lead content and phthalates, manufacturers are concerned, may well apply to old inventory as well. Details like this need resolution.

The Chicago Tribune asked, "... if those standards are necessary to ensure child safety, does that mean the millions of toys made to current standards are unsafe?" The paper reported that Rep. Jan Schakowsky (D-Ill.), one of the safety bill’s authors, addressed a letter to acting CPSC Chairman Nancy Nord, accusing the agency of encouraging companies to quickly “sell or export” goods that meet current standards, but that will become illegal in February 2009. Companies will have to make business decisions about inventories.

Apart from the specific ban on phthalates enumerated previously, the act requires the CPSC not later that Feb. 2009 to "begin to appoint a chronic hazard advisory panel" to investigate phthalates. The panel, within 18 months of its appointment, will "complete an examination of the full range of phthalates used in products for children. The panel is to examine all of the potential health effects (including endocrine disrupting effects) of the full range of phthalates ... consider the potential health effects of each of these phthalates both in isolation and in combination with other phthalates ... review all relevant data, including the most recent, best-available, peer-reviewed, scientific studies of these phthalates and phthalate alternatives ... consider the health effects of phthalates not only from ingestion but also as a result of dermal, hand-to-mouth, or other exposure ... consider the level at which there is a reasonable certainty of no harm to children, pregnant women, or other susceptible individuals and their offspring."

No later than six months after completing its examination, the panel will report their results to CPSC, which will promulgate a final ruling on phthalates, whether to continue the prohibition as detailed in the act or to "declare any children's product containing any phthalates to be a banned hazardous product under section 8 of the Consumer Product Safety Act (15 U.S.C. 2057), as the Commission determines necessary to protect the health of children."

CPSC Acting Chairman Nancy Nord said the new product safety legislation "will make it easier for CPSC to find and recall unsafe products made around the world." She added: "CPSC is ready to implement the law fully, fairly and in a way that bolsters the safety of children's products and increases consumer confidence."

If you'd like to read the bill yourself:

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December 10, 2019, 7:25 pm PDT

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