consumer product safety improvement act of 2008
DESCRIPTION
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 PresentationTRANSCRIPT
Consumer Product Safety Improvement Act of 2008
Diane M. MeyersPerkins Coie, LLP1201 Third Avenue
Seattle, Washington206-359-8324
This presentation reflects the views of the presenter and is presented for Discussion Purposes Only
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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
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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
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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
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.