House Subcommittee Drafts Bill to Make CPSIA Less Stringent, Sets April 7 Hearing

Draft Seeks to Reduce CPSIA Regulatory Burden, Give CPSC More Flexibility, Etc.

According to the Subcommittee, the draft legislation’s objectives are: (i) to reduce the regulatory burdens created by CPSIA where possible to do so without harming consumers; (ii) to enhance the Consumer Production Safety Commission’s (CPSC's) ability to investigate complaints and to prioritize based on risk; and (iii) to improve the utility and accuracy of information in the CPSC’s public database.

Among other things, the discussion draft would amend the CPSIA definition of children’s products, delay the 100 parts per million lead content limit in children’s products, reduce the number of children’s product safety rules requiring third-party testing, and change several requirements regarding the public database of consumer product incidents.

Definition of Children’s Products

Would Amend CPSIA Definition of Children’s Products to Age Lower than 12

The discussion draft would lower the age limit in the CPSIA definition of children’s products, though the draft does not yet state the exact age. This means that the numerous CPSIA provisions affecting children’s products (third-party testing, lead content limits, phthalates limits, etc.) would affect a smaller subset of products.

Lead Content

CPSC Could Apply 600 ppm Limit to Risky Products Outside New Age Limit

The discussion draft would create a new authority that would allow CPSC to apply the 600 ppm lead content limit to products that would fall outside the newly revised age limit but were designed or primarily intended for use by children 12 and younger, if it determines after a hearing that the lead content in such product or class of products presents an unreasonable risk to children’s health.

Would Delay 100ppm Lead Limit to Aug 2012 & Make it Prospective

Under the CPSIA, starting August 14, 2011, children's products may not contain more than 100 parts per million of total lead content unless CPSC determines that such a limit is not technologically feasible with regard to a product or product category. The draft bill would delay this 100 ppm lead content limit for children's products (as newly defined) for one year until August 14, 2012. It would also make all of the lead content limits prospective by only applying them to products manufactured after each limit’s effective date.

Would Set Alternative Limit for Metal Alloy Parts, Except Parts with de Minimis Absorption

In addition, the discussion draft would set an alternative lead content limit (yet to be determined) for a component part of a children’s product that is made of steel, copper, or aluminum alloys unless: (i) the product fits entirely within a certain CPSC small parts cylinder (i.e., the product could be swallowed); or (ii) after any necessary assembly of the product and after being subjected to reasonable use and abuse, the part or any portion of the part becomes detached from the product and such part or portion of the part fits entirely within a certain CPSC small parts cylinder (i.e, the part could become detached and swallowed).

There would also be a new de minimis exception in which the lead content limits would not apply to any component part of a children’s product if, under reasonably foreseeable conditions of use and abuse, it is unlikely that a child who is exposed to the product would ingest more than a de minimis amount of lead (yet to be defined). However, this exception would not apply if either (i) or (ii) above were true.

Third Party Testing

Only Be Required for Lead in Paint, Cribs, Pacifiers, Small Parts, Metal Jewelry

The discussion draft would limit the CPSIA third-party testing requirements (and resulting manufacturer/importer certification) to the following children’s product safety rules: lead in paint, cribs, pacifiers, small parts, and children’s metal jewelry.

CPSC Could Require It for Other Rules/Products if It Considers Cost-Benefit, Etc.

It would allow the CPSC, by rule, to require third-party testing (and resulting manufacturer/importer certification) for additional rules, regulations, standards or bans; portions of such rules, regulations, standards or bans; or a particular class of products. However, CPSC could only require such third-party testing after it had completed the following steps: accredited labs; determined there is sufficient lab capacity; made a reasoned determination that the benefits of third-party testing justify the costs; and tailored any rule to impose the least possible burden.

One of a Kind & Small Batch Products Would be Exempt/Have Alternative Testing

In addition, CPSC would have to establish a rule exempting one-of-a-kind products and works of art from any third-party testing requirements. It would also have to issue a rule exempting or requiring alternative testing procedures for specialty products for the disabled and products that are produced in small quantities such that the cost of testing by an independent third party is not economically practicable.

Continued Testing

CPSC Could Choose to Issue “15 Month Rule,” Only Need Labeling System

Under the discussion draft, CPSC could establish (instead of being required to establish) protocols and standards for: ensuring the children’s products are subject to testing periodically; the testing of random samples; verifying that a children’s product tested by a third-party lab complies with applicable children’s product safety rules; etc. In other words it would make most of what CPSC refers to as the “15 month rule” an optional rulemaking. The only part of the “15 month rule” that that CPSC would have initiate is the program by which a manufacturer or private labeler can label a consumer product as complying with the general conformity or children’s product certification requirements.

Tracking Labels

CPSC Could Exclude Certain Kid’s Products from Tracking Label Requirement

CPSC would be able, by regulation, to exclude a specific product or class of products from the CPSIA “tracking label” requirements for children’s products if it determines that it is not economically practicable for such products to bear the marks required by the CPSIA. CPSC could establish alternative requirements for these products.

Phthalates Bans

Would Limit Bans to Accessible Plasticized Parts, Make them Prospective, Etc.

Among other things, the discussion draft would amend the CPSIA provisions banning certain phthalates in children’s toys or child care articles so that they would only apply to accessible plasticized component parts of such products and would only apply to products manufactured after any effective dates. CPSC would also be able by rule to exempt any class of products or materials from the phthalates bans where it determines compliance with the bans not necessary to protect children’s health.

Public Database

Reports Would Have to Be Submitted by Those Harmed or Their Representatives

The discussion draft would amend several requirements regarding the public database of consumer product safety incidents that the CPSIA required CPSC to develop. For example, the draft bill would require that reports of harm not be filed by “consumers” but rather by “persons who suffer harm or risk of harm related to the use of a product, their next of kin or members of their household, their legal representative, or another person expressly authorized by any such person.” (The draft would still allow the other entities outlined in the CPSIA to submit reports (e.g. health care professionals, child service providers, etc.), but would remove consumer -- which CPSC defined broadly in its December 2010 final rule on the public database.)

CPSC Could Not Publish Materially Inaccurate Reports or Those w/out Defined Products

It would also make several changes to the provisions on manufacturer comments on the reports of harm, including barring CPSC from publishing any reports in which the product cannot be specifically defined or there is materially inaccurate information.

Bill’s Amendments Would Take Effect on CPSIA Enactment Date

The draft would establish the effective date of its amendments as having taken effect on the date of enactment of the CPSIA.

(See discussion draft for details of other provisions, including those on subsequent revisions and the retroactive nature of the crib requirements; an exemption from the mandatory toy standard for any provision that restates or incorporates a regulation promulgated by FDA; an exclusion from the lead content limits for most used children’s products; etc.)

(See ITT’s Online Archives or 04/05/11 news, 11040525, for BP summary announcing the April 7, 2011 hearing on the discussion draft bill to revise the CPSIA.

See ITT’s Online Archives or 02/18/11 news, 11021819, for BP summary of the House Subcommittee on Commerce, Manufacturing, and Trade stating that they were planning a bill to “fix” the CPSIA and would be releasing it in the coming weeks.

See ITT’s Online Archives or 02/23/11 news, 11022324, for BP summary of the House Energy and Commerce Chair pledging to “fix” the CPSIA and give CPSC more flexibility.

See ITT’s Online Archives or 12/07/10 news, 10120727, for BP summary of a Senate subcommittee meeting during which several members stated they would be working on CPSIA “fixes” in 2011.)

Hearing information available here.

Subcommittee background memo available here.