consumer product safety improvement act of 2008

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Consumer Product Safety Improvement Act of 2008 Diane M. Meyers Perkins Coie, LLP 1201 Third Avenue Seattle, Washington 206-359-8324 [email protected] This presentation reflects the views of the presenter and is presented for Discussion Purposes Only

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Consumer Product Safety Improvement Act of 2008. Diane M. Meyers Perkins Coie, LLP 1201 Third Avenue Seattle, Washington 206-359-8324 [email protected]. This presentation reflects the views of the presenter and is presented for Discussion Purposes Only. CPSIA Generally. - PowerPoint PPT Presentation

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Page 1: Consumer Product Safety Improvement Act of 2008

Consumer Product Safety Improvement Act of 2008

Diane M. MeyersPerkins Coie, LLP1201 Third Avenue

Seattle, Washington206-359-8324

[email protected]

This presentation reflects the views of the presenter and is presented for Discussion Purposes Only

Page 2: Consumer Product Safety Improvement Act of 2008

2

Legislative response to large number of children's toy recalls in 2007 and 2008

Passed overwhelmingly by House (424-1) and Senate (89-3)

Signed into law by President Bush on August 14, 2008

CPSIA Generally

Page 3: Consumer Product Safety Improvement Act of 2008

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Major Provisions

Imposes Lead Content Limits Phases in progressively stringent lead content

limits beginning in February 2009 Imposes Phthalate Content Limits

Phases in progressively stringent phthalate limits beginning in February 2009

Requires Third Party Testing Expands Certification Requirements Adopts Mandatory Toy Standards

Page 4: Consumer Product Safety Improvement Act of 2008

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Important Definitions

Children's Products Most provisions apply to products intended or

designed primarily for children 12 years of age or younger

Children's Toys Designed or intended for a child 12 years of age

or younger for use when child plays Child Care Articles

Designed or intended to facilitate sleep or feeding of children 3 years of age or younger or to help such children with sucking or teething

Page 5: Consumer Product Safety Improvement Act of 2008

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Lead (Section 101)

Applies to children’s products Makes it illegal to sell, offer for sale, manufacture,

import or distribute children's products that exceed acceptable lead levels Children's products containing more than the acceptable

amount of lead will be treated as banned substances under the Federal Hazardous Substances Act

Imposes lead limit of 600 ppm on Feb 10, 2009 Decreases acceptable lead limit to 300 ppm in

August 2009 Leaves open the possibility of further decreases

Page 6: Consumer Product Safety Improvement Act of 2008

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CPSC may, by rule, exclude a specific product or material from lead content rule.

Inaccessible component parts CPSC will issue rule on inaccessible product components Inaccessible component is any part not physically exposed

through foreseeable use and abuse

Absorption CPSC may exclude product if it determines no absorption of lead

in the body

Electronic Devices If it is not possible for certain devices to be sufficiently lead-free,

CPSC may exclude

Lead (continued)

Page 7: Consumer Product Safety Improvement Act of 2008

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Phthalates (Section 108)

Imposes interim ban on products containing 0.1 percent or more of DINP, DIDP, or DnOp Applies to:

Children's toys that can be placed in a child's mouth

Child care articles Imposes permanent ban products containing

0.1 percent or more of DEHP, DBP or BBP Applies to:

Children's toys Child care articles

Page 8: Consumer Product Safety Improvement Act of 2008

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Mandatory Toy Safety Standards (Section 106)

Adopts ASTM F963-07 as a mandatory toy safety standard Applies to more children's products than CPSIA Includes thirty-nine safety standards that must be

followed on February 10, including standards related to:

Small objects Marbles Cords and elastics Rattles Wheels, tires and axles Strollers Battery-operated toys Balls Projectile toys Yo-Yos Toy chests Stuffed toys

Page 9: Consumer Product Safety Improvement Act of 2008

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Conformity Certificates(Section 102)

Two types General Conformity Certificate

Became effective November 12, 2008

Certificate based on third-party testing Becomes effective on a rolling basis

Issued with the product or shipment of products and a copy must be furnished to each distributor or retailer

Sample Certification provided on CPSC website

Page 10: Consumer Product Safety Improvement Act of 2008

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Certification Requirements

Must certify conformity with every consumer product safety rule any similar rule, ban, standard or regulation under any other Act enforced by the CPSC, which includes: Federal Hazardous Substances Act (FHSA); Flammable Fabrics Act (FFA); Poison Prevention Packaging Act (PPPA); and Refrigerator Safety Act (RSA)

Certification must be based on a test of each product or a reasonable testing program and third party testing (when required)

Certification of compliance with industry standards is not required by CPSIA unless the standard is enforced by the CPSC

Page 11: Consumer Product Safety Improvement Act of 2008

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Third Party Testing(Section 102)

CPSC required to develop accreditation procedure based on statutory timelines, e.g.: Lead paint December 2008 Cribs and pacifiers January 2009 Small parts February 2009 Metal jewelry March 2009

Third party testing applicable 90 days after accreditation notice published

Manufacturer must submit samples to third party testing body before importing for consumption or warehousing or distributing in commerce

Page 12: Consumer Product Safety Improvement Act of 2008

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Warning and Tracking Labels

Tracking labels (Section 103) Requires information regarding the manufacturer, date and

location of production and batch and run numbers

Must be permanently affixed to all children's products and packaging manufactured after August 14, 2009

Warning labels (Section 105) Expands warning requirements

Requires warnings in Internet advertisements, catalog ads and other materials Internet December 12, 2008

Catalog ads February 10, 2009

Page 13: Consumer Product Safety Improvement Act of 2008

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Timeline for Compliance

November 12, 2008

General conformity certifications required

Every manufacturer of a product subject to rule, ban, standard or regulation must issue a certificate

Must specify each rule, ban, standard or regulation to which the product is subject

Based on a test of each product or upon a reasonable testing program

Page 14: Consumer Product Safety Improvement Act of 2008

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Timeline (continued)

February 10, 2009

Phthalate limits in child care articles, children's toys and children's toys that can be placed in the mouth

Lead content limits in children's products

Mandatory toy safety standards

Third-party testing and certification

Warnings in catalog ads

Page 15: Consumer Product Safety Improvement Act of 2008

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Timeline (continued)

August 14, 2009

Lower limit on lead in paint from 600 ppm to 90 ppm

Lower limit on total lead content from 600 ppm to 300 ppm

Tracking labels required

Page 16: Consumer Product Safety Improvement Act of 2008

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CPSC Suspends Testing and Certification

On January 30, the CPSC suspended testing and certification requirements

Underlying safety standards and rules still apply

Page 17: Consumer Product Safety Improvement Act of 2008

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Important Regulatory Responsibilities Remain In Place

Suspension does not apply to: Lead paint ban if made after Dec 21, 2008 Cribs and pacifiers if made after Jan 20, 2009 Products subject to small parts ban if made after Feb 15,

2009 Lead content in metal components of children’s jewelry if

made after March 23, 2009 Certification requirements applicable to ATV’s made after

April 13, 2009 Pre-CPSIA testing and certification requirements Pool drain cover requirements

State Attorneys General can still enforce Litigation over CPSC authority to issue stay is likely

Page 18: Consumer Product Safety Improvement Act of 2008

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Applicability to Inventory

Lead content limits apply to existing product inventory as of February 10, 2009

Phthalate content limits may not apply to existing product inventory on February 10, 2009, but this is the subject of litigation

Page 19: Consumer Product Safety Improvement Act of 2008

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Impact on State Product Liability Law

Some states have more stringent safety laws that their attorneys general may try to enforce

E.g., California AG advised that CA would enforce its broader phthalate ban

Common law and state statutory claims may not be preempted

States may petition CPSC for exemption from some CPSIA provisions

Page 20: Consumer Product Safety Improvement Act of 2008

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Penalties

Civil Increased to $100,000 (increased cap to $15

million)

Criminal Increased to $500,000

Permits imprisonment and forfeiture of assets

Retailers or distributors who hold a general conformity certificate (or third-party testing certificate when required) are protected

Page 21: Consumer Product Safety Improvement Act of 2008

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Other Provisions

Enforcement by state attorneys general Administrative changes

Searchable database Increases CPSC budget and staff Industry-sponsored travel ban

Recall provisions Import-Export Provisions Whistleblower protection ATV standard

Page 22: Consumer Product Safety Improvement Act of 2008

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Some Practical Problems

Unsold inventory

Children's books, including library books

Destructive testing of one-of-a-kind goods

Second-hand sales of products

Lack of clarity regarding accessible components

Lack of clarity regarding stay

Lead times for manufacturers

Components

Page 23: Consumer Product Safety Improvement Act of 2008

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What's next?

CPSC to issue guidance and rulemaking

Third party certification

Component testing

Excluding from regulation certain products

Legislative changes considered

Pending litigation

Page 24: Consumer Product Safety Improvement Act of 2008

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For More Information

CPSC website:

www.cpsc.gov

Contact Diane Meyers or one of the attorneys in Perkins Coie's Product Liability Practice

Page 25: Consumer Product Safety Improvement Act of 2008

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Diane Meyers is an associate in Perkins Coie's Product Liability practice. She assists clients with complex litigation, including work on product liability cases worldwide for The Boeing Company and other aviation manufacturers. She counsels clients on lawsuit avoidance, including compliance with consumer product safety laws and regulations. Before joining Perkins Coie, Diane worked as an associate for Osborn Maledon in Phoenix, where she assisted on a variety of commercial, employment, appellate and regulatory litigation and counseling matters. Diane enjoys cheering on the Irish and the Red Sox and playing Ultimate Frisbee in her spare time.