CPSIA: Three Years Later

INDUSTRY OUTLOOK

Develop a plan of action now to adhere to the legislative mandates that will be in full effect as of January 2012. June 07, 2011
By Marcia Kinter, Contributing Editor

Childrenswear manufacturers still need to meet both the lead and phthalate content limits, if applicable, as well as comply with the tracking label requirement.

Adopted in 2008, the Consumer Product Safety Improvement Act (CPSIA) remains one of the most misunderstood pieces of legislation within the garment decorating community. There are several reasons for this: the continued stay of enforcement for both testing and certification; the lack of clear, consistent guidance from the Consumer Product Safety Commission (CPSC) regarding the applicability of the phthalate content limits; and the applicability of the tracking label system.

The CPSC extended the stay of enforcement for testing and certification until Dec. 31, 2011. It is important to note that the stay still only applies to those portions of the legislation that relate to testing and certification. Under this stay, those manufacturers producing children’s products still need to meet both the lead and phthalate content limits, if applicable, as well as comply with the tracking label requirements.

Currently, all products must contain no more than 300 parts per million (PPM) of lead, and this limit is due to decrease to 100 PPM in August. The lead content limit applies to all children’s products, from toys to T-shirts.

This stay of enforcement also applies to those products covered by the phthalate content limits, so let’s take a moment to focus on that issue.

Based on a November 2008 opinion letter from the General Counsel of the CPSC, the legislation bans phthalates from children’s toys and child-care articles. A children’s toy is defined as a “consumer product designed or intended by the manufacturers for a child 12 years of age or younger for use by the child when the child plays.”

A child-care article is defined by the CPSC as “a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age three years old and younger, or to help such children with sucking or teething.” We need to look further as to what is meant by “placed in a child’s mouth.”

The CPSIA does cover this issue. In part, the legislation indicates that if any part of the toy can by placed in the mouth of a child and sucked or chewed on, then it is covered. Further, if a children’s product can only be licked, then it is not regarded as able to be put into the mouth.

The CPSC agrees that these definitions are written very broadly, but also concedes that children’s wearing apparel “is not considered a toy because it is not intended to be played with by a child.” While children’s wearing apparel is not considered to be a toy — therefore, not subject to the phthalate content standards — there is a small subsection of children’s apparel that would be considered child-care articles. Specifically, children’s products that are designed or intended to facilitate sleeping or eating for a child 3 years old or younger are subject to the phthalate ban.

Notice that the CPSC did not state that all children’s wearing apparel is subject to the phthalate ban. It is only this slice of the apparel industry that must meet the phthalate ban. This means that those items of apparel that fit under the definition of child-care articles must contain no more than 0.1% of the any of the following phthalates: DEHP, DBP and BBP.

Three more phthalates, DINP, DIDP and DnOP, have been banned pending further study. Confusion also exists concerning the 0.1% figure. The 0.1% limit for the six banned phthalates applies to each individual phthalate, not the total amount of these phthalates in the product.

To recap, under the current stay of enforcement, the CPSC does not require manufacturers to send their products out to certified labs to test for either lead or phthalate content. However, the CPSC expects that all children’s products sold into the market meet the limits described above.

While not required yet, it is recommended that you begin to plan for eventual testing of your products. Test data will be an important and integral part of any certifications issued with your products. Only test data provided by a laboratory that has been accredited by the CPSC for the specific test will be considered acceptable.

There are accredited labs on the CPSC website, but you must make sure that the lab is certified to test for lead and phthalate contents. When you are seeking a lab that can conduct tests for lead content, make sure it is certified for the following method: Lead Content in Children’s Non-Metal Products, Test Method CPSC-CH-E1002-08.

To date — and this is important — there are no labs that have been certified by the CPSC to test for phthalate content. The CPSC has developed a phthalate testing method, but accreditation standards have yet to be released. Many facilities assume that once accredited by the CPSC, a laboratory can run any and all tests. This is not the case. The CPSC accredits all labs based on each individual test method.

Your Tracking Label
Remember, the main purpose of the tracking label is to enhance recall effectiveness. The tracking label achieves this by providing information to help a manufacturer target the problem and initiate an effective corrective action program. It also helps a consumer determine whether his product is subject to the recall. Keep this in mind when considering what information to include on your tracking label. The statute spells out some required information that must be “ascertainable” (to the extent “practicable”), but remember, this tool also can help manufacturers limit the number of products impacted by a recall.

This section of the CPSIA is not covered by the stay of enforcement. As of August 2009, “any manufacturer of a children’s product” should have incorporated a tracking label on all children’s products sold. As a reminder, the tracking label does not even have to be a label. The requirement calls for permanent “distinguishing marks” on the product and the packaging that will allow the manufacturer and private labeler to ascertain the required tracking information. And, to make it even more confusing, the CPSC has not provided any standard format or guide as to how the information should be presented.

The key is that the manufacturer must be able to interpret the marks and convey the necessary information to consumers. To this end, the CPSC has stated on its website:

“Is the information ascertainable if I mark my product and packaging with a code and website address where all the required information can be found?”

“Yes, provided the name of a manufacturer or private labeler also is identified so a consumer without access to the Internet can know whom to contact directly to also obtain the required information.”

Regulatory or Legislation
When asking what’s next — regulatory or legislation — the quick answer is both. While the CPSC diligently is working to issue all implementing regulations, Congress has decided to take action.

The House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade, chaired by Rep. Mary Bono-Mack (R-Calif.), held a hearing to discuss draft legislation that would revise the CPSIA. The objectives of the draft legislation are to:

• Reduce the regulatory burdens created by CPSIA, where possible, to do so without harming consumers
• Enhance the CPSC’s ability to investigate complaints and to prioritize based on risk
• Improve the utility and accuracy of information in the CPSC’s public database

It was clear from the opening statements by members of the Committee that this draft is not unanimously supported. Bono-Mack indicated that there is a need to act quickly due to approaching deadlines, specifically the August 2011 deadline for the lowering of the lead limit from 300 PPM to 100 PPM. The Democrats, led by Chairman Emeritus Henry Waxman (D-Calif.), think the current draft destroys the intent of the CPSIA and will undermine the efforts that have been taken to provide for the protection of children. This sets the stage for an interesting legislative debate on this possible reform issue.

We also can expect to see several very critical rules issued by the CPSC within the next several months. These rule packages will provide the specifics as to what facilities will need to do regarding implementation of testing programs.

The CPSIA is here to stay. As of Jan. 1, 2012, all legislative mandates will be in effect, and a prudent manufacturer will start now to develop a plan of action.

Marcia Y. Kinter is vice president for government affairs of the Specialty Graphics Imaging Association (SGIA) and the Digital Printing Association (DPI). She represents members before federal and state regulatory agencies and the U.S. Congress on environmental, safety and other issues that directly impact screen printing and graphic imaging businesses. For more information or to comment on this article, e-mail Marcia at marcik@sgia.org.

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