Confusion abounds as Consumer Product Safety Improvement Act heads to Feb. 10 deadline

The only thing certain about the new federal rules banning certain phthalates and lead levels in children's products that go into place on Feb. 10 as part of the Consumer Product Safety Improvement Act (CPSIA) is that no one is certain how the rules will or should apply at all.

The only thing certain about the new federal rules banning certain phthalates and lead levels in children's products that go into place on Feb. 10 as part of the Consumer Product Safety Improvement Act (CPSIA) is that no one is certain how the rules will or should apply at all.

Extensive lobbying by the Outdoor Industry Association (OIA), the Sporting Goods Manufacturers Association (SGMA), Snowsports Industries America (SIA) and many other industry associations on behalf of their many affected constituents resulted in the Consumer Product Safety Commission (CPSC) ruling in November 2008 that the new rules around phthalates were not retroactive and everyone breathed a sigh of relief.

That sigh turned into a gasp on Feb. 5, as a federal judge in New York ruled that the phthalate limits in the CPSIA apply to all children's toys and child-care articles currently in inventory, not just to products manufactured after Feb. 10. This means that as of that date, it shall be unlawful to sell any children's toy or child-care article that contains more than 0.1 percent of the six banned phthalates (DEHP, DBP, BBP, DINP, DIDP and DnOP). Products that are not children's toys are not affected by this decision -- click here to read the court document.

If the responses SNEWS® received today to our queries about this law's affect on business are any indication at all, chaos and confusion reign. Click here to read a CPSC backgrounder on the CPSIA.

Even in an attempt to provide clarity, there is little. Retailers are wondering if they need to be concerned about pulling products from their shelves. Manufacturers are wondering whether or not they can ship products for sale. And associations are scrambling to find answers.

"The important thing to remember is the phthalate ban is limited to 'toys.' If a product made by a fitness (or outdoor) company is a toy (think jump rope sold in toy stores), then it must be phthalate free. If a product is not 'commonly viewed' for use primarily by children 12 and under, then it is not impacted by the ban," Bill Sells, SGMA's vice president of government relations, told us.

Specifically addressing questions about fitness products, Sells added, "I think most fitness products will not be covered by the ban, but there could be exposure for certain products that are directed solely at children if the CPSC views them as not really intended for fitness but pretend fitness activities. SGMA believes fitness products and sporting goods are not toys, but the definitional language in section 108 of the CPSIA defining a 'children's toy' could be interpreted broadly, which concerns us."

Alex Boian, director of trade policy for OIA, told SNEWS, "In light of the February 5th U.S. District Court ruling that the phthalate ban on children's products within the Consumer Product Safety Improvement Act (CPSIA) retroactively applies to all existing inventories, Outdoor Industry Association strongly urges its members to consult with legal counsel as to whether their products are affected. After, February 10, 2009, it will be illegal to sell children's products, other than wearing apparel, that contain phthalates in excess of the levels prescribed by the CPSIA. The ban potentially affects a wide array of outdoor products like child carriers, water bottles and snorkeling sets."

Adding to the pain and confusion are the lead rules, which manufacturers and retailers tell SNEWS they are very eager to comply with, but are completely unclear as to exactly what is expected at this point.

Essentially, as of Feb. 10, products sold must still comply with third-party certification requirements for lead paint. In addition, lead content limits are 600 parts per million (ppm) for lead content through Aug. 13 going down to 300 ppm on Aug 14, 2009, and 100 ppm on Aug. 11, 2011.

The trouble, we are told, arises with the CPSC requiring all apparel manufacturers to know whether the zippers, buttons and other fasteners they are using contain lead. And the same holds true for all the raw materials in any other children's product with lead and phthalates. Manufacturers argue that having to test individual components in every product is not only time-prohibitive, it is cost-prohibitive.

But help may be on the way -- at least in terms of buying some time and providing a bit of clarity to a very muddy and poorly written bill.

"I think Congress understands the tremendous difficulty manufacturers and retailers are having complying with the CPSIA regulations," said Boian. "We hope Senator Bob Bennett's bill (click here to read announcement of that bill) is able to move quickly and we are also supportive of Senator DeMint's efforts through S. 374 (click here to read bill).

In short, the S. 374 proposes to:

- Eliminate the retroactive application of the Feb. 10 lead limits.

- Exempt second-hand sellers from the Federal Hazardous Substances Act (lead standards) and labeling requirements.

- Delay regulations by six months.

- Revise third-party testing requirements to enable component testing.

- Create a suspension of enforcement (by both the CPSC and the State AGs) for 30 days after any date when the CPSC issues a rule, regulation or guidance.

- Require the CPSC to wave any civil penalty for an initial good faith violation.

- Require the CPSC to work with the Small Business Administration and other state small business agencies to develop a compliance guide for small enterprises to assist them in complying with the CPSIA.

"We have urged the Senate to add S. 374 to the stimulus bill to resolve the outstanding issues ASAP," said Boian.

--Michael Hodgson