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December 2008 |
Schiff Hardin Consumer Products Safety Alert: This is the third in our series of updates on continued rapid developments in the wake of the new Consumer Product Safety Improvement Act (the "CPSIA"). In November, the Consumer Product Safety Commission (the "CPSC" or "Commission") issued its Final Rule on certificates of compliance. In the Final Rule, unless a party is specifically required to issue certificates under a particular rule, the CPSC has broadly exempted anyone other than importers and domestic manufacturers from having to issue certificates of compliance. Importers and domestic manufacturers still generally must issue the required certificates for products subject to a specific rule enforced by the CPSC, which are to be based on a test of each product or on a "reasonable testing program." The Final Rule also formally adopts the guidance CPSC staff previously issued concerning the acceptability of electronic certificates. We discussed electronic certificates in our last alert. The CPSIA generally requires Internet Web sites and printed materials offering children's toys for sale to include the same choking hazard warnings (for small parts, small balls, marbles and balloons) that accompany the products when purchased in person. As a reminder, as of December 12, 2008, Internet Web sites must now comply with the new law. Under the Final Rule issued in November, catalogs and other materials printed before February 10, 2009 that lack the required warnings may only be distributed through August 8, 2009. All materials printed on or after February 10, 2009 must have the required warnings. All materials distributed on or after August 9, 2009 must contain the required warnings, regardless of when they were printed. The Final Rule also includes:
In November, the CPSC's General Counsel issued an advisory opinion addressing product inventory existing as of February 10, 2009 that contains lead or phthalates. As discussed in one of our previous Alerts, the CPSIA's new lead content limits apply to "children's products," while the new phthalate bans apply to children's "toys" and "child care articles." In her most recent advisory opinion, the General Counsel declined to reconsider an earlier September 12, 2008 advisory opinion that the new lead limits apply retroactively to inventory that exists as of February 10, 2009. Accordingly, current guidance suggests that any inventory that does not meet the new lead limits on February 10, 2009 is a "banned hazardous substance" under the Federal Hazardous Substances Act and cannot be sold, offered for sale, or distributed in commerce after that date regardless of when it was manufactured. For phthalates, in contrast, the General Counsel's advisory opinion states that "Congress created a consumer product safety standard" for phthalates in the CPSIA, consumer product safety standards generally are not applied retroactively to products manufactured before the standard's effective date, and a "clear statement of unambiguous intent to apply that standard retroactively cannot be found" in the CPSIA. Accordingly, her view is that the ban on phthalates does not apply retroactively to product inventory that exists on February 10, 2009. The ban, of course, will apply to toys and child care articles manufactured on or after February 10, 2009. Issues relating to product inventory containing phthalates or lead may not be finally resolved. Some members of Congress have made public statements disagreeing with the General Counsel's opinion on phthalates, and the House Subcommittee on Commerce, Trade and Consumer Protection may hold hearings on the issue of the phthalate and lead rules as they impact product inventory. Meanwhile, consumer advocacy groups have filed a lawsuit against the CPSC, seeking an order requiring the CPSC to enforce the phthalate ban retroactively. A previously scheduled public meeting to discuss phthalates has been postponed indefinitely while the CPSC continues to accept public comments through January 12, 2009 on phthalate use, measurement, toxicity, exposure and alternatives. - - - - - Schiff Hardin LLP represents manufacturers, retailers, importers and distributors in the full range of matters relating to product safety, regulatory compliance, product recalls and litigation. We advise our clients on how and when to report potentially hazardous products to the CPSC, and on addressing the litigation, regulatory and public relations issues they encounter in that process. We assist clients with internal compliance programs; evaluating product risks; reporting under Sections 15(b) and 37 of the CPSA; developing, negotiating and implementing product recalls with CPSC staff; and responding to CPSC enforcement investigations. When necessary, we are also trial lawyers who handle complex, high-risk product liability and class action litigation coast to coast. Our lawyers have:
Please let us know if we can assist you in determining how to comply with the new consumer product safety law and its related regulations. For more information, contact:
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