Effective January 1, the CPSC lifted its stay of enforcement of the third party testing and certification requirements for lead content, phthalates and the ASTM F963 mandatory toy safety standards. As a result, manufacturers and importers of children’s products subject to those requirements must issue children’s products certificates (or CPCs) that certify that the product meets these standards.

In August, 2011, Congress passed H.R. 2715, which modifies the CPSIA and the CPSA. Soon afterward, President Obama signed this bill into law. This legislation makes it clear that the new 100 ppm lead content requirement applies only to products manufactured after the effective date (August 14, 2011) and does not apply retroactively to products in inventory (as long as they meet the earlier 300 ppm level). Under H.R. 2715, some products are exempt from the third party testing requirement for lead content, such as ordinary books (books printed on paper or cardboard) and most used children’s products (with some exceptions, such as children’s metal jewelry). In addition, a party in interest may apply for an exemption from the lead content rule under the new “functional purpose exception,” and the CPSC may issue an exception on its own initiative. To qualify for an exception, a product must meet three tests: (i) the product must be made with lead because it is not practicable or technologically feasible to remove the excessive lead or to make the lead inaccessible; (ii) the product, class of product, material or component part is not likely to be ingested by a child or placed in a child’s mouth; and (iii) exposure to the product, class of product, material or component part will have no measurable increase in blood lead levels.

The phthalate rule applies to certain classes of phthalates, which are chemical compounds added to plastics to enhance their durability and elasticity. The phthalate ban applies to two classes of products: (i) all toys (products designed and intended for children age 12 or younger for use by the child when he or she plays), and (ii) all childcare articles (products designed or intended to facilitate sleep or feeding of children age three and younger or to help children with sucking or teething). H.R. 2715 amended the phthalate requirements to exclude inaccessible parts, similar to the existing carve-out for lead content limits, but we are still waiting for the CPSC to develop guidance on the scope of this exception.