Getting The Lead Out: What Every Retailer And Manufacturer Should Know About The Consumer Product Safety Improvement Act Of 2008

Sunday, March 1, 2009 - 01:00

Following 2007's "summer of recalls," Congress passed the Consumer Product Safety Improvement Act of 2008 ("CPSIA"), which became law on August 14, 2008, and substantially amended the Consumer Product Safety Act ("CPSA"), among other laws. As the Consumer Product Safety Commission has explained, the CPSIA's "extensive changes to the regulatory landscape cut a broad swath through the business community from books to children's apparel to toys and sporting goods to children's electronic products," and its new testing and certification requirements "affect companies that have not previously been regulated (or did not realize that they could be regulated) by the Commission." The Commission has been overwhelmed; members of Congress have denounced the Commission's implementation; and manufacturers and retailers have been confused and panicked.

February 10, 2009 was a particularly critical day under the CPSIA. New restrictions on lead in children's products (not just in the paint) took effect - retroactively. A prohibition on the most common phthalates, a key ingredient in many soft plastics, took effect for children's products - likely retroactively. Voluntary testing methodologies and safety standards for toys, known as ASTM F963, became mandatory. And some of the new regulations for print and catalog advertising of children's products took effect. (On advertising, see 16 C.F.R. § 1500 (73 Fed. Reg. 67730), available at http://www.cpsc. gov/businfo/frnotices/fr09/lrtgafin.pdf.)

Compounding these new requirements is the CPSIA's expansion of requirements to test products and certify that they comply with safety standards. The Commission reported in late January that it had received thousands of email, telephone, and written inquiries on this subject alone.

Manufacturers, importers, and retailers thus must pay close attention to the statute and to the rapidly developing interpretive and regulatory regime under it, to ensure compliance and to reduce litigation risks. This Commentary highlights some of the key changes and issues.

Raising The Stakes For All Manufacturers And Sellers Of Consumer Products

Although Congress's immediate concern in enacting the CPSIA was children's products, the CPSIA has several sweeping changes that will affect all manufacturers and sellers of consumer products.

Enhanced Penalties and Enforcement. The CPSIA dramatically raises the maximum civil penalties for each knowing violation of the CPSA or any other act that the Commission enforces (to $100,000), and for a related series of violations (to $15 million). It also, among other things, increases the maximum term of imprisonment for knowing violations to five years and adds as a punishment "forfeiture of assets associated with" the violations. Criminal liability, previously unknown in practice under the CPSA, also no longer depends on the violation's having occurred after written notice from the Commission. See 15 U.S.C. §§ 2069-2070, as amended by CPSIA § 217.

Expanded Reporting, Recall, and Certification Obligations. Previously, manufacturers had to certify compliance with applicable consumer product safety rules under the CPSA, report violations, and recall products that created a "substantial risk of injury to the public." In conducting a recall, a manufacturer could choose whether to repair, replace, or refund the cost of the recalled product.

The CPSIA expands the general certification requirements to include applicable consumer product safety rules under any act that the Commission enforces, not just the CPSA, and charges the Commission with deciding the appropriate recall remedy. 15 U.S.C. §§ 2063(a) & 2064, as amended by CPSIA §§ 102 & 214. To certify compliance, a General Certification of Conformity must be issued by the U.S. manufacturer (or importer), based on a "reasonable testing program," and accompany the product. See http://www. cpsc.gov/businfo/frnotices/fr09/certification.pdf.

State Attorney General Enforcement. The CPSIA authorizes state attorneys general to sue for injunctive relief for certain violations and to recover attorney's fees. 15 U.S.C. § 2073, as amended by CPSIA § 218.

Whistleblowers. It also prohibits adverse personnel actions against employees for providing information to a federal or state agency about "any act or omission that the employee reasonably believe[d] [was] a violation" of any act that the Commission enforces. 15 U.S.C. § 2087(a), as amended by CPSIA § 219.

Significant New Requirements For Children's Products

The CPSIA particularly singles out manufacturers and sellers of children's products, defined as "consumer product[s] designed or intended primarily for children 12 years of age or younger." 15 U.S.C. § 2052, as amended by CPSIA § 235.

New Lead Restrictions, Retroactivity, And Exceptions. Most discussed have been the CPSIA's new lead standards. As of February 10, most accessible components of children's products may not contain more than 600 parts per million (ppm) of lead. The limit is lowered to 300 ppm on August 14, 2009 and 100 ppm, if technologically feasible, in August 2011. In addition, for paint the longstanding 600 ppm limit is lowered to 90 ppm effective August 14, 2009.

The Commission's General Counsel has advised that the limits apply to all children's products, even if manufactured before February 10. This contrasts with the CPSA's longstanding approach to new consumer product safety standards. 15 U.S.C. § 2058(g).

The CPSIA provides for several exceptions to the new limits on lead content, but some depend on future regulations, and all are subject to great uncertainty. There are several relevant rulemakings simultaneously pending - all were issued on January 15, 2009, and none had produced a final rule by February 10.

The first of these recognizes that certain materials naturally do not contain lead, and accordingly excludes them from the testing requirements. See http://www. cpsc.gov/businfo/frnotices/fr09/leadlimits.pdf.

Second, the Commission proposed procedures and requirements for making a determination under the CPSIA that specific products or materials, even though exceeding the lead-content limits, will neither lead to anyone's absorbing any lead nor have any other adverse health impact. This exception does not apply until the Commission has issued an implementing regulation. See http://www.cpsc.gov/businfo/frnotices/fr09/leadprocedures.pdf.

Third, the Commission has issued a proposed rule for excluding inaccessible component parts from the lead-content limits. These draw on existing regulations and the ability of the child to touch the lead-containing object. See http://www. cpsc.gov/businfo/frnotices/fr09/leadinaccessibility.pdf. Manufacturers and retailers may take advantage of this statutory exception even in the absence of a regulation.

The comment period for each of these three notices ended February 17, 2009, a week after the lead-content limits took effect. Final rules may issue several weeks after that, at the earliest. This "gap" has created a bind for many manufacturers. Without clarity regarding exceptions on which they expected to rely, they must comply with the new limits. This gap, particularly when combined with retroactivity, may require companies to pull inventory from the shelves.

Finally, the Commission issued a proposed rule implementing the CPSIA's exception for electronic devices, which takes effect only upon the Commission's issuance of a regulation. See http://www. cpsc.gov/businfo/frnotices/fr09/leadelectronic.pdf. On February 6, 2009, the Commission withdrew its notice of proposed rulemaking and issued an interim final rule, effective February 10, 2009, eliminating the "gap" for certain electronic devices, to partially mitigate this harm. See http://www.cpsc.gov/businfo/ frnotices/fr09/electronicinterim.pdf. For electronic devices containing component parts that are accessible and could not be made physically inaccessible, the Commission's interim final rule adopted most of the European Union's "RoHS" exemptions. See http://www.rohs.eu/english/ index.html.

New Phthalates Restrictions. Phthalates are a group of widely used chemicals mostly known for being added to polyvinyl chloride to soften it and make it flexible.

Section 108 of the CPSIA sharply restricts the use in certain children's products of specified phthalates, which the statute treats in two groups. The first group consists of the phthalates known as DEHP, DBP, and BBP. It is permanently unlawful for a children's toy or child care article to "contain[ ] concentrations of more than 0.1 percent" of any of these three. The second group consists of DINP (a substitute for DEHP), DIDP, and DnOP. It is unlawful for a "children's toy that can be placed in a child's mouth or child care article" to "contain[ ] concentrations of more than 0.1 percent" of each of these. This restriction is interim.

The phthalates restrictions took effect February 10, 2009. The Commission has not issued much guidance, apart from establishing a testing method on February 9. It had advised that the phthalate restrictions did not apply to products manufactured before February 10, but the Southern District of New York disagreed on February 5, and the Commission is not appealing.

Children's Product Testing and Certifications. As new safety rules take effect, manufacturers and importers of children's products must issue General Conformity Certificates. Additionally, within 90 days after the Commission establishes criteria for approving testing laboratories, they also must issue Children's Product Certifications. 15 U.S.C. § 2063, as amended by CPSIA § 102. Testing for the latter must consist of a "sufficient sample" by a "third party conformity assessment body," which may include accredited laboratories owned by manufacturers or governments. See http://www.cpsc.gov/ABOUT/Cpsia/cpsia.HTML.

The task facing the Commission in implementing these requirements is daunting. As a result, on January 30 it adopted a one-year stay of enforcement. See http:// www.cpsc.gov/library/foia/foia09/brief/stayenforce.pdf.

This stay has several limits. Among other things, General Conformity Certifications requirements predating the CPSIA remain in effect. And the stay does not affect already issued standards for Children's Product Certifications for lead in paint, cribs and pacifiers, small parts, and metal jewelry. Most importantly, the stay does not affect the duty to comply with a new underlying safety regulation, such as those for lead-content in substrates and for phthalates.

Conclusion

The CPSIA presents a host of new burdens and risks. It is critical that retailers, importers, and manufacturers of consumer products stay tuned and monitor this process to understand and ensure compliance with their new federal obligations.

This article is condensed and updated from one that Jones Day published on February 10, which is available at http://www.jonesday.com/pubs/pubs_detail.aspx?pubID=S5912.

The authors are, respectively, Peter J. Biersteker, a Partner, C. Kevin Marshall, Of Counsel, and Danielle M. Hohos, an Associate in the Washington, D.C., office of Jones Day, where their work includes advising on and litigating issues related to consumer products, including international product recalls.

Please email the authors at pbiersteker@jonesday.com or ckmarshall@jonesday.com or dmhohos@jonesday.com with questions about this article.