Lead, Phthalates and Sellers of Children’s Products – What’s All the Fuss? An Explanatory Overview for Consumers

 

While retailers struggle to comply with new laws imposed by the Consumer Product Safety Improvement Act of 2008 (CPSIA), consumers struggle to understand what all the fuss is about.  “They need to simply stop selling products with lead in them,” one person commented.  It sounds easy enough, but determining which products can and cannot be sold under the new laws is far from simple.

The following overview was drafted with consumers in mind to help explain why retailers, even those who support the new laws, are particularly worried about complying with the new lead limits – more so than other new laws, including those limiting phthalates, which are often lumped in with lead when discussing banned substances in children’s products.

UPDATE 02/05/09:  As of today, new rulings will cause phthalates to be treated the same as lead with regard to inventory.  This article has been edited accordingly.

Background –Summary of the Lead and Phthalate Bans

Lead Paint Ban: Paint or surface coatings, as well as paint on furniture and children’s products, cannot exceed 90ppm (parts per million) as of August 14, 2009. (previous limits were 600ppm)

Lead Content Ban: Products intended for children twelve and under cannot contain lead (in paint or otherwise) in excess of 600ppm as of Feb 10, 2009, 300ppm as of August 14, 2009 and 100ppm as of August 14, 2011.

Permanent Phthalates Ban:  Toys for children twelve and under, and child care articles (feeding, sleeping, sucking and teething aids) for children three and under, cannot contain certain phthalates (DEHP, DBP, BBP) in amounts over 0.1 percent as of February 10, 2009. 

Interim Phthalate Ban (until further research): Toys for children twelve and under that can be put in a child’s mouth (sucked or chewed), and child care articles (feeding, sleeping, sucking and teething aids) for children three and under, cannot contain certain phthalates (DINP, DIDP, DnOP) in amounts over 0.1 percent as of February 10, 2009.

Banned Hazardous Substance vs. Safety Standard:  Lead is considered a banned hazardous substance and is governed by the Federal Hazardous Substances Act (FHSA).  Under the FHSA, once a substance is effectively banned it can no longer be manufactured, imported or sold in the US.  Phthalates are banned via a Safety Standard. Safety Standards are governed by the Consumer Product Safety Act (CPSA).  Under the CPSA, Safety Standards only apply to products manufactured after the standard goes into effect. 

Therefore, as of February 10, 2009 it is against the law to manufacture or sell any children’s product over the then-current lead or phalate limits.  However, phthalate bans apply only to products manufactured on or after February 10, 2009.  Products containing the banned phthalates can still be sold if they were manufactured before February 10, 2009.  http://cpsc.gov/library/foia/advisory/320.pdf

UPDATE 02/05/09:  In a recent lawsuit filed against the CPSC, the Court ruled that the CPSC's interpretation of the CPSIA with regard to phthalates was incorrect and that, even with the above distinction between banned hazardous substances and safety standards, there was a clear intent by Congress to prohibit the sale of products containing the banned phthalates as of Februrary 10, 2009, not just the manufacturer and import of such products. More information about the phthalates ruling here.

Why retailers, even those who support the lead ban, are worried:

Typically, unless products are made to order, there is a lag between when a product is manufactured and when it is sold to the consumer.  This lag can be significant, with products remaining in the distribution channel up to several months or even several years.  Consider a product that is manufactured outside the US.  After the product is imported, the importer may provide the product to a distributor, who then sells the product to a retailer, who may then hold the product in inventory before placing it on the store shelf.  The product then sits on the shelf until a consumer decides to purchase it.  If the product is seasonal, such as a holiday item, the retailer may put unsold items back into storage until the following year.

In the case of phthalates products that are only regulated by safety standards, the new laws stop the manufacture and import of products on February 10, 2009, but allow the items already in the distribution channel to continue through the sales cycle.   In the case of lead and phthalates, the entire system freezes on February 10th; products already in the channel are not allowed to move forward.  Hence, retailers who purchase inventory before February 10, 2009 are prohibited from selling those items unless they are certain the products do not contain lead or the prohibited phthalates.

The problem is, retailers have no way to be certain that children’s products manufactured or imported before February 10, 2009 do not contain lead or phthalates unless they 1) test each product themselves, which is time-consuming and often cost-prohibitive, or 2) ask manufacturers to certify that the products do not contain lead the banned substances, which manufacturers are only required by law to do for products manufactured or imported on or after February 10th, 2009, and are not required to do so until at least Februrary 10, 2010.*

Large retailers with significant power in their manufacturer relationships will likely not have a problem demanding that manufacturers certify products produced before February 10, 2009 meet the new laws.  Smaller retailers, however, are finding manufacturers to be less willing (or able) to test older products.  Retailers are therefore left with inventory that they are afraid sell even if they believe the products are unlikely to contain lead because they cannot be absolutely sure.  Selling a relavent product that is later found to contain lead or phthalates above the designated limits carries hefty civil and criminal penalties.

*CPSC General Counsel recently clarified that General Conformity Certificates, which require only “reasonable testing” rather than third-party testing, will be allowed until third party accreditation guidelines go into effect in August.

*UPDATE 01/30/08:  CPSC Grants one year stay, until February 10, 2010, on certain certification and third party testing requirements.  A summary of the stay and what it means to manufacturers and retailers can be found here.