House Passes Bill on Children's Products Safety, Etc.

(Although the House has passed H.R. 4040, it is not yet in effect. Generally, in order for a bill to be implemented, identical versions of that bill must be passed by both the House and Senate and then the bill must be approved (enacted) by the President. On December 5, 2007, a Senate committee reported a similar but not identical bill, S. 2045, the "CPSC Reform Act of 2007." See ITT's Online Archives or 12/18/07 news, 07121820, for the final part of a multipart BP summary of S. 2045.)

Progressive Ban on Children's Products Containing Certain Amounts of Lead

H.R. 4040 would treat any children's product (designed or intended primarily for children 12 years of age or younger)¹ containing more than certain amounts of lead as a banned hazardous substance within the meaning of 15 USC 1261(q)(1) of the Federal Hazardous Substances Act. Specifically, H.R. 4040 would set the following maximum amounts of lead in children's products in the following timeframes:

1. parts per million total lead content by weight for any part of the product, 180 days after H.R. 4040's enactment;
2. parts per million total lead content by weight for any part of the product, 2 years after H.R. 4040's enactment;
3. parts per million total lead content by weight for any part of the product, 4 years after H.R. 4040's enactment (unless the CPSC determines this is not feasible in which case it shall require the lowest feasible amount).

Exclusions and exceptions. The CPSC would be able, by rule, to exclude certain products and materials from the progressive ban if it determines that the lead content in such products and materials will not result in the absorption of lead in the human body or does not have any adverse impact on public health or safety. In addition, H.R. 4040 provides an exception for inaccessible component parts that are not physically exposed by reason of a sealed covering or casing and do not become physically exposed through reasonably foreseeable use and abuse of the product.

General Lead Paint Standard Would Also Become More Stringent

Within 180 days of enactment, H.R. 4040 would require the CPSC to amend the general lead paint standard in 16 CFR 1303.1 in order to reduce the maximum lead amount from 0.06% of the weight of the total nonvolatile content of the paint or the weight of the dried paint film to .009%.

Children's products/furniture. H.R. 4040 would apply the general standard for lead-containing paint to all children's products¹ and reduce the standard for paint and other surface coating on children's products and furniture to .009 milligrams per centimeter squared. Not later than 3 years after H.R. 4040's enactment, CPSC would be required, by rule, to create a more protective lead paint and surface coating standard for children's products/furniture if it determines such a standard is feasible.

Safety Rules, Registration, Labeling for Cribs, Highchairs, Strollers, Etc.

H.R. 4040 has the following provisions related to durable infant or toddler products³ (for children under age five) such as cribs, highchairs, strollers, etc.:

Safety rules. Not later than 1 year after its enactment, H.R. 4040 would require the CPSC to commence rulemaking and promulgate consumer product safety rules every six months for no fewer than 2 categories of durable infant or toddler products that are substantially the same or more stringent than the voluntary standards for such products.

The CPSC would be required to begin with the products it determines to be of highest priority until the CPSC has promulgated standards for all such product categories. The CPSC would also be required to periodically review and revise such rules to ensure that they provide the highest feasible level of safety for such products.

Consumer registration, recordkeeping, labeling. Not later than 1 year after its enactment, H.R. 4040 would require the CPSC to promulgate a final rule to require manufacturers of such durable infant/toddler products³ to:

provide consumers with a postage-paid registration form with each such product to be used to notify consumers in the event of a recall or safety alert;

maintain a record of the contact information of those who register their ownership of such products for not less than six years; and

permanently place the manufacturer name and contact information, model name and number, and the date of manufacture on each durable infant or toddler product.

Testing, Certificates, Labeling, Etc. for Children's Products

H.R. 4040 would require mandatory third party or proprietary testing of children's products. It also contains provisions related to certification of laboratories, tracking labels, and Internet and catalogue advertising for children's products.

Testing would be mandatory. Effective 1 year after its enactment, H.R. 4040 would amend 15 CFR 2063(a) to require every manufacturer of a children's product¹ (and the private labeler of such children's product if such product bears a private label) which is subject to a consumer product safety rule under the Consumer Product Safety Act (CPSA) or a similar rule or standard under any other Act enforced by the CPSC, must:

have the product tested by a independent third party² qualified to perform such tests or a proprietary laboratory certified by the CPSC; and

issue a certificate which shall (i) certify that such product conforms to such standards or rules; and (ii) specify the applicable consumer product safety standards or other similar rules.

Certification of proprietary laboratories. H.R. 4040 would further amend 15 CFR 2063 to state that upon request, the CPSC or an independent standard-setting organization to which the CPSC has delegated such authority, may certify a laboratory that is owned, managed, controlled, or directed by the manufacturer or private labeler for purposes of testing required under this section if the CPSC determines that: (i) certification of the laboratory would provide equal or greater consumer safety protection than the manufacturer's use of an independent third party laboratory; (ii) the laboratory has established procedures to ensure that it is protected from undue influence by the manufacturer, CPSC, etc.

Tracking labels for children's products. H.R. 4040 would amend 15 USC 2063(a) to require, 1 year after its enactment, that the manufacturer of a children's product, to the extent feasible, place distinguishing marks on the product and its packaging that will enable the manufacturer and the ultimate purchaser to ascertain the location and date of production of the product, and any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks.

"Small parts" statement for Internet/catalogue advertising of toys/games. Effective 180 days after its enactment, H.R. 4040 would amend 15 USC 1278 of the Federal Hazardous Substances Act (FHSA) to require any advertisement of a retailer, manufacturer, importer, distributor, etc. that provides a direct means for the purchase or ordering of any toy, game, balloon, small ball, or marble (intended for use by children ages 3-6) that requires a "small parts" cautionary statement, including advertisement on Internet websites or in catalogues or other distributed materials, to include this cautionary statement.

Review of Generally-Applicable Safety Standards for Toys

H.R. 4040 would require the CPSC to examine and assess the effectiveness of the safety standard for toys, ASTM-International standard F963-07, or its successor standard, to determine the scope of such standards, the degree of adherence on the part of manufacturers, and the adequacy of such standards in protecting children from safety hazards. (The review would include a special focus on the hazards of magnets.)

Not later than two years after H.R. 4040's enactment, the CPSC would be required to report to Congress on (1) the feasibility of requiring manufacturer testing of all toys to such standards; and (2) whether promulgating consumer product safety rules that are substantially similar or more stringent than the specified standards would be beneficial to public health and safety.

Hazardous Reporting Requirement, Recall/Action Plan Authority Would Expand

H.R. 4040 would expand the hazardous reporting requirement under 15 USC 2064(b) to state that any manufacturer/distributor/retailer (company) shall immediately inform the CPSC if a product fails to comply with any rule affecting health and safety promulgated by the CPSC under the FHSA, the Flammable Fabrics Act (FFA), or the Poison Prevention Packaging Act.

Recall authority. H.R. 4040 would further amend 15 USC 2064 to state that if the CPSC determines that a product distributed in commerce presents a substantial product hazard or is an imminently hazardous product, CPSC could order the company to cease distribution of the product, notify those involved with the transport of such product to immediately cease distribution of the product, etc.

Action plans. H.R. 4040 would amend 15 USC 2064 to allow the CPSC to amend or require amendment of a company's action plan for a hazardous consumer product that has already been distributed in commerce if it is not effective or appropriate under the circumstances, or if the company is not executing an approved action plan effectively. If the CPSC determines that a company has failed to comply substantially with its obligations under its action plan, it may revoke its approval of the action plan.

Sale/Import/Export of Recalled, Non-Conforming Products Would be Unlawful

H.R. 4040 would prohibit the sale, import or export of recalled, non-conforming consumer products, as follows:

Prohibition on sale/manufacture/import. H.R. 4040 would amend 15 USC 2068(a) to make it unlawful for any person to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the U.S. any consumer product, or other product or substance that is regulated under any other Act enforced by the CPSC that is:

not in conformity with an applicable consumer product safety standard under the CPSA, or any similar rule under any such other Act;

subject to voluntary corrective action taken by the manufacturer (e.g. recall);

subject to an order issued under section 12 or 15 of the CPSA; or

designated a banned hazardous substance under the FHSA.

Prohibiting a person from exporting. H.R. 4040 would amend 15 USC 2067 to allow the CPSC to prohibit, by order, a person from exporting from the U.S. for purpose of sale any consumer product, or other product or substance (including any fabric, related material, or product) that is regulated under any Act enforced by the CPSC that the CPSC determines is:

not in conformity with an applicable consumer product safety rule under the CPSA or a similar rule under any such other Act;

subject to an order issued under section 12 or 15 of the CPSA or designated as a banned hazardous substance under the FHSA; or

subject to a voluntary corrective action taken by the manufacturer (e.g. recall) that would have been subject to a mandatory corrective action under the CPSA or another Act enforced by the CPSC if voluntary action had not been taken by the manufacturer;

However, H.R. 4040 would allow the export of such products if the importing country has notified the CPSC that it accepts the importation of such product.

Civil and Criminal Penalties Would Increase

H.R. 4040 would increase civil and criminal penalties as follows:

Maximum temporary civil penalty of $5 million. H.R. 4040 would amend the CPSA, the FHSA, and the FFA so that the maximum civil penalties for any violations specified in the relevant sections would be $5,000,000 (from $1,250,000), beginning on the date that is the earlier of: (i) the date on which final penalty regulations are issued; or (ii) 360 days after the date of enactment of H.R. 4040.

Maximum permanent civil penalty of $10 million. H.R. 4040 would amend the relevant sections of the CPSA, FHSA, and the FFA so that the maximum civil penalty for any violations specified in the relevant sections would be $10,000,000, effective on the date that is one year after the earlier of (i) the date on which final penalty regulations are issued; or (ii) 360 days after the date of enactment of H.R. 4040.

Criminal penalties could include asset forfeiture. H.R. 4040 would amend 15 USC 2070 by adding a new paragraph to state that in addition to the penalty provided by subsection (a), the penalty for a criminal violation of the CPSA or any other Act enforced by the CPSC may include the forfeiture of assets associated with the violation.

¹"Children's product" means a consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a product is primarily intended for such children, H.R. 4040 outlines certain factors to be considered including, a statement by the manufacturer about the intended use of the product, whether the product is represented in its packaging as such a product, whether it is commonly recognized by consumers as such a product, etc.

²"Independent third party" means an independent testing entity that is not owned, managed, controlled, or directed by such manufacturer or private labeler, and that is accredited in accordance with an accreditation process established or recognized by the CPSC. (See H.R. 4040 for the definition's reference to art materials/products.)

³"Durable infant or toddler product" means a durable product intended for use, or that may reasonably be expected to be used, by children under the age of five and includes cribs, high chairs, strollers, walkers, play yards, child gates, swings, bassinets, etc. (See H.R. 4040 for complete list of products.)

H.R. 4040, Engrossed as Agreed to or Passed by the House available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h4040eh.txt.pdf.