SGMA Message: CPSC Perspective on Phthalates Ban in Sporting Goods

In recent weeks, the Sporting Goods Manufacturers Association’s (SGMA) Legal Task Force has conducted two conference calls to explain the impact of the new Consumer Product Safety Improvement Act (CPSIA) on product safety.
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WASHINGTON, D.C. – November 5, 2008 – In recent weeks, the Sporting Goods Manufacturers Association's (SGMA) Legal Task Force has conducted two conference calls to explain the impact of the new Consumer Product Safety Improvement Act (CPSIA) on product safety.

Listed below is the new CPSC statement on the applicability of the new law as it applies to the phthalates ban in toys and its impact on sporting goods:

Q: Does the prohibition on phthalates apply to sporting goods?
A: The category of products known as "sporting goods" can include toys but not all sporting goods are toys. Indeed, the ASTM F963 toy safety standard, which will also becomes a mandatory consumer product safety standard, does not define sporting goods equipment to be a toy unless the product is a toy version of sporting goods equipment. However, "children's toy" in section 108 of the CPSIA is defined broadly as a "consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays." Therefore, any determination as to whether a particular sporting goods product would be a toy as defined under section 108, and therefore, subject to the ban on phthalates, would be made on a case by case basis after consideration of the following factors:
A statement by the manufacturer about the intended use of such product, including a label on such product if such a statement is reasonable.
Whether the product is represented in its packaging, display, promotion or advertising as appropriate for use by of the ages specified.
Whether the product is commonly recognized by consumers as being intended for use by a child of the ages specified.
The Age Determination Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines.
In light of this statement, the sporting goods industry needs to communicate its concerns directly with Cheryl Falvey, CPSC's General Counsel. SGMA strongly suggests you submit comments to General Counsel Falvey by Monday, November 10th. Please submit comments directly to General Counsel Falvey at http://www.cpsc.gov/cgibin/cfalvey.aspx

On October 30th, in an effort to further clarify the application of phthalates on sporting goods, SGMA Vice President of Government Relations Bill Sells spoke directly with General Counsel Falvey on how sports equipment and licensed products will be treated with respect to the phthalates ban. As a result of their discussion, Falvey has agreed to meet with SGMA officials in the coming weeks to discuss the phthalates issue.

“It is important that you provide information specific to your concerns and product, especially the intended use of your product. Please clarify whether the equipment is used to participate in sports or physical activity,” said SGMA President Tom Cove. “It is equally important to include comments that apply to the entire sporting goods industry and to make it clear the new definition creates severe problems for the broad range of products made by the industry.”

The SGMA strongly encourages you to incorporate the following points in your message to the CPSC.

The most recent statement CPSC released on the prohibition on phthalates with respect to sporting goods is:
1.ambiguous and does not provide certainty as to how a sporting goods product will be treated with respect to the phthalates ban.
a.) Determining applicability of Phthalates ban on a case-by-case basis creates greater uncertainty.
b.) Section 108 and ASTM F963 are not consistent on product definition and can be interpreted differently for similar products, creating more confusion.
2.defines 'play' too broadly. The one-size-fits-all definition treats equipment needed to participate in sports and toys similarly.
a.) Children aged six and over use sporting goods when participating in sports.
b.) Imitation sporting goods used by young children (under age six) to 'pretend play' sports are toys.

“The sporting goods industry needs to focus on lack of guidance and the uncertainty the sporting goods statement creates for the industry,” said SGMA's Bill Sells. “We also must make a distinction between 'playing' with a toy and 'participating' in sports. The law, especially the phthalates and lead sections, was drafted in response to health issues associated with 'toys' and 'child care products'.”

Sporting goods -- while they are “consumer products designed...for use by children 12 and under when they 'play,'” -- were not the impetus for the phthalates and lead bans. The broad definition of 'play' has lumped sporting goods products in with toys. The industry needs to effectively make a compelling case on the difference between 'toys' and how children 'play' with them and the intended use of sporting goods.

Comments submitted to General Counsel Falvey will be very helpful as SGMA works with the CPSC to address industry concerns. SGMA is looking forward to working with the entire sports/fitness industry and the CPSC on this issue. If you have any additional CPSC questions and/or concerns, please feel to contact SGMA's Bill Sells at bsells@sgma.com or 202.349.9417.

The Sporting Goods Manufacturers Association, the #1 source for sport and fitness research, is the global business trade association of manufacturers, retailers, and marketers in the sports products industry. SGMA leads the sports and fitness industries while enhancing industry vitality and fostering sports, fitness, and active lifestyle participation. More information about SGMA can be found at www.sgma.com.
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