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.

At 63 pages, the Consumer Product Safety Improvement Act of 2008 is a hefty piece of legislation with wide-reaching (and sometimes unexpected) effects on the consumer product and toy manufacturing, import and retail industry and the consumers who purchase its products.. The underlying subject matter of the Act is complex, and the Act is therefore dense and at times confounding and frustrating. The Act was amended this summer to address some of the industry’s concerns. We at AMM are launching this blog to provide a forum for sharing insights, and we hope to generate some interesting discussions that will benefit our readers.

The amendment to the CPSIA provides much-needed clarity and relief for many manufacturers, particularly small manufacturers and those in specific industries such as book publishers and bicycle and off-highway vehicle manufacturers. The determination that the 100 ppm lead content limit does not apply retroactively to products in inventory is certainly a welcome development for manufacturers. On the other hand, the new legislation does not contain some of the industry-friendly provisions contained in prior bills, such as delaying the implementation of the 100 ppm standard until 2012 and restricting the lead limits to products designed primarily for use by children age six and younger that can be placed into a child’s mouth. Nevertheless, the opportunity to provide comments and suggestions with respect to third party testing requirements offers manufacturers and other stakeholders the ability to voice their remaining concerns, and the new functional purpose exception will allow manufacturers to seek relief from the lead limits. I’m curious to see the comments of the various stakeholders…

Toy manufacturers, importers and retailers breathed a collective sigh of relief on August 1 at Congress’s clarification that the 100 ppm lead content limit, which went into effect on August 14, does not apply retroactively to children’s products in inventory. This standard only applies to products manufactured after August 14.

In addition, Congress codified the “functional purpose” exception that has been discussed in industry circles since the adoption of the CPSIA. In essence, this provision permits the CPSC to grant an exemption from the lead content rules if it determines that: (i) a product (or class of product, material, or component part) cannot be manufactured without lead either because it is not practicable or because it is not technologically feasible, (ii) the product is not likely to be placed in a child’s mouth or ingested during the normal and reasonably foreseeable use and abuse of the product; and (iii) granting an exception would have no measurable adverse effect on public health. Historically, the effect on public health was measured by reference to blood lead levels in children. The new law permits the CPSC in its discretion to adopt an alternative method. An exception can be granted by the CPSC on its own initiative or upon application of an interested party, in which case the interested party bears the burden of proof.

The legislation contains an exemption from the lead limits for off-highway vehicles (including snowmobiles). It also exempts used children’s products other than children’s metal jewelry and children’s products for which the seller or donor has actual knowledge of non-compliance.

The CPSIA limits or bans the use of certain phthalate compounds in toys and child care articles. The new legislation clarifies that these limits do not apply to component parts that are not accessible to a child through normal and reasonably foreseeable use and abuse of the product, as determined by the CPSC. More specifically, if a component part is not physically exposed to the child by reason of a sealed covering or casing and that covering or casing is not likely to be disturbed through reasonably foreseeable use and abuse of the product (including swallowing, mouthing, breaking or other children’s activities, as well as the aging of the product), then that part is not accessible to a child. The CPSC is charged with the task of developing a rule to provide guidance with respect to this provision.

The recent amendment to the CPSIA has several effects on the third party testing of children’s products. It clarifies that the CPSC must establish standards and protocols for the testing of representative samples (rather than the more stringent requirement of using random samples). It also directs the CPSC to revisit existing third party testing regulations within one year, taking into account public comments as to how testing costs might be reduced. Congress suggested that such comments might touch on topics such as redundant third party testing, sampling procedures, component testing, use of alternative testing technologies, and whether compliance with international standards should provide a reference for CPSC compliance.

The new law requires the CPSC to consider the economic, administrative and other limitations applicable to small batch manufacturers (generally defined as manufacturers with annual total gross sales of no more than $1 million) when implementing third party testing requirements. It must provide, after notice and a hearing, alternative testing requirements for covered products manufactured by small batch manufacturers. Alternatively, the CPSC may allow certification of a product produced by a small batch manufacturer based on compliance with another national or international governmental standard, as long as that standard is at least as rigorous as the consumer product standard enforced by the CPSC. The small batch manufacturer exemption, however, is not applicable to the lead paint and small parts standards nor is it available for certain classes of children’s products, such as cribs, children’s metal jewelry, and baby bouncers, walkers and jumpers.

Under the new law, ordinary books and ordinary paper-based printed materials are no longer subject to the third party testing requirements of the CPSIA. Additionally, the third party testing requirement as it pertains to lead content no longer applies to metal component parts of bicycles.