Congress Passes Consumer Product Safety Improvement Act Conference Report

Next Step is for Conference Report to be Enacted by President

As both the House and the Senate have passed the Conference Report, the next step is to send it to the President for approval (enactment).

Below are highlights taken from the text of the H.R. 4040 Conference Report. (See ITT's Online Archives or 07/31/08 news, 08073110, for BP summary of the Conference Report based on a House Republican Conference press release.)

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

The Conference Report would treat any children's product (designed or intended primarily for children 12 years of age or younger¹) containing more than certain amounts of lead as a banned hazardous substance under 15 USC 1261 et. seq. of the Federal Hazardous Substances Act. Specifically, the Conference Report 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, beginning 180 days after enactment;
2. parts per million total lead content by weight for any part of the product, beginning 1 year after enactment;
3. parts per million total lead content by weight for any part of the product, 3 years after enactment (unless the CPSC determines this is not technically feasible for a specific product/category, in which case, it would require the lowest feasible amount).

Exclusions and exceptions. The CPSC would be able, by rule, to exclude specific products or materials from the progressive ban if it determines that the lead content in such products or materials would not result in the absorption of lead in the human body or have any other adverse impact on public health or safety.

In addition, the Conference Report would provide 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 normal and reasonably foreseeable use and abuse of the product. The CPSC would be required to promulgate a rulemaking within 1 year after enactment with respect to what product components or classes of such would be considered inaccessible for these purposes.

The CPSC would also be able to exclude certain electronic devices, including devices containing batteries, from the lead standard by issuing requirements to minimize the potential for exposure to and accessibility of lead in such electronics, etc.

Periodic downward revisions. No less than every five years, the CPSC would be required to review and revise downward the lead limits to the lowest amount the CPSC determines to be technically feasible.

Lead Paint Ban Would Also Become More Stringent

Within one year of enactment, the CPSC would be required to amend the lead paint ban of 16 CFR 1303.1 in order to reduce the maximum lead amount to .009% (from 0.06%) of the weight of the total nonvolatile content of the paint or the weight of the dried paint film.

Ban on Children's Products Containing Certain Phthalate Concentrations

Beginning 180 days after enactment, it would be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the U.S. any children's toy or child care article that contains concentrations of more than 0.1% of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP). (See Conference Report for definitions of children's toys and child care articles specific to this section.)

Interim ban on additional products/phthalates. Also 180 days from enactment, the CPSC would be required to issue an interim rule prohibiting the manufacture, sale, importation, etc. of any children's toy that can be placed in a child's mouth or child care article that contains concentrations of more than 0.1% of certain other phthalates. Later, based on a panel's assessment of the full range of phthalates that are used in products for children, the CPSC would determine whether to continue the ban through issuance of a final rule.

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

The Conference Report has the following provisions related to durable infant or toddler products² (for children under age five) such as cribs, highchairs, strollers, etc.:

Safety rules. Not later than 1 year after its enactment, the CPSC would be required to commence rulemakings 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, the CPSC would be required to promulgate a final rule to require manufacturers of such durable infant/toddler products 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, Certification, Labeling for Certain Children's Products, Etc.

The Conference Report would require mandatory third party testing and certification of certain children's products. It also contains provisions related to tracking labels, and Internet and catalogue advertising for children's products.

Mandatory third party testing and certification. Every manufacturer (and private labeler, if applicable) of a children's product subject to a children's product safety rule manufactured more than 90 days after the CPSC has published notice of the requirements for accreditation of third party conformity assessment bodies (see below), would be required to (1) have the product tested by such a body for compliance with the children's product safety rule; and (2) based on such testing, issue a certificate that certifies that such product complies.

Third party accreditation. The CPSC would be required to publish notice within specific timeframes (but in no case later than 10 months after enactment) of the requirements for accreditation of third party conformity assessment bodies for: lead paint; full-size cribs, pacifiers, etc; small parts; children's metal jewelry; baby bouncers, etc.; and all other children's products.

Expansion of general conformity certification requirements. In addition to certification requirements specific to children's products, the Conference Report would expand the general conformity certification requirements under 15 USC 2063(a) to require certification for any products under the CPSA or similar rule, ban, standard, or regulation under any other Act enforced by the CPSC, among other changes.

Possible electronic filing of certificates for imports. In consultation with the CBP Commissioner, CPSC may, by rule, provide for the electronic filing of such certificates up to 24 hours before arrival of an imported product. Upon request, the manufacturer or private labeler issuing the certificate would be required to furnish a copy to the CPSC and to the CBP Commissioner.

Continued testing/verification. Not later than 15 months after enactment, the CPSC would be required by rule to establish protocols and standards for: (i) ensuring that children's products are tested periodically and when there has been a material change in the product's design or manufacturing process, including the sourcing of component parts; (ii) the testing of random samples to ensure continued compliance; and (iii) verifying that a children's product tested by a conformity assessment body complies with applicable children's product safety rules; etc.

Tracking Labels. Effective 1 year after enactment, the Conference Report would amend 15 USC 2063(a) to require the manufacturer of a children's product to place permanent distinguishing marks on the product and its packaging, to the extent practicable, that would enable the ultimate purchaser (and manufacturer) to ascertain the manufacturer, date of production, and cohort information (including the batch, run number, or other identifying characteristic) of the product by reference to those marks.

"Small parts" statement for Internet/catalogue advertising of toys/games. The Conference Report would amend 15 USC 1278 of the Federal Hazardous Substances Act (FHSA) to require any advertisement by 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 approximately ages 3-6) that requires a "small parts" cautionary statement, to include this cautionary statement, effective 120 days after enactment for Internet advertisements and 180 days after enactment for catalogues and other printed materials.

Mandatory Toy Safety Standards

Beginning 180 days after enactment, the provisions of ASTM International Standard F963-07 (Consumer Safety Specifications for Toy Safety), as it exists on the date of enactment (except for section 4.2 and Annex 4 and certain other provisions) would be considered to be consumer product safety standards issued by the CPSC under section 9 of the CPSA (15 USC 2058).

Rulemaking on more stringent standards for certain toys/risks. Not later than one year after enactment, the CPSC would be required to assess the effectiveness of ASTM F963-07 (or its successor standard) as it relates to toy safety requirements, safety labeling requirements, and test methods related to: (i) internal harm or injury hazards caused by the ingestion or inhalation of magnets in children's products; (ii) toxic substances; (iii) toys with spherical ends; (iv) hemispheric-shaped objects; (v) cords, straps, and elastics; and (vi) battery-operated toys.

One year after this assessment, CPSC would be required to promulgate rules that are more stringent, if the CPSC determines that more stringent standards would further reduce the risk of injury related to such toys/risks.

Consideration of remaining ASTM standards. The Conference Report would require the CPSC to conduct similar assessments on the adequacy of other standards in protecting children from safety hazards. If the CPSC determines that more stringent standards would further reduce the risk of injury associated with such toys, it would be required to promulgate rules beginning with the product categories that it determines to be of highest priority, until it has promulgated standards for all such product categories. Such rules would be considered consumer product safety standards issued the CPSC under 15 USC 2058.

Hazardous Reporting Requirement, Recall/Action Plan Authority Would Expand

The Conference Report would expand the substantial product hazard reporting requirement under 15 USC 2064(b) to state that any manufacturer (includes importer), distributor, or retailer (collectively, company) shall immediately inform the CPSC if a consumer product that is distributed in commerce (or other product or substance over which the CPSC has jurisdiction under the CPSA or any other Act - except for certain motor vehicle equipment) fails to comply with any rule, regulation, standard, or ban under the CPSC or any other act enforced by CPSC.

Recall authority. The Conference Report would further amend 15 USC 2064 to state that if the CPSC determines a product distributed in commerce to be an imminently hazardous product, etc, CPSC could order the company to cease distribution of the product, notify those involved with the transport, storage, distribution, and handling of such product to immediately cease distribution of the product.

Action plans. The Conference Report would also amend 15 USC 2064 to allow the CPSC by order to amend or require amendment of a company's approved action plan if the CPSC finds that 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.

Prohibitions on Sale/Import/Export of Recalled, Non-Conforming, Etc. Products

The Conference Report would prohibit the sale, import or export of recalled, non-conforming consumer products, as follows:

Prohibition on sale/manufacture/import. The Conference Report 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 other Act enforced by the CPSC;

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 within the meaning of section 2(q)(1) of the FHSA.

Prohibition on export. The Conference Report would further amend 15 USC 2068 to allow the CPSC to prohibit a person from exporting from the U.S. for purpose of sale any consumer product, or other product or substance regulated by the CPSC (other than a consumer product or substance whose export is permitted by the Treasury Secretary) that is:

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); or

violates a specified order of the CPSC.

In addition, the Conference Report would amend 15 USC 2067 to state that the CPSC would be able to prohibit a person from exporting from the U.S. for the purpose of sale any consumer product that is not in conformity with an applicable consumer product safety rule under the CPSA, unless the importing country has notified the CPSC that it accepts the importation of such a product.

Targeting, Inspection, Recordkeeping, Destruction of Imported Products

The Conference Report includes the following requirements related to the targeting, inspection, recordkeeping, and destruction of non-compliant imports:

Use of ITDS to target shipments with likely safety violations. Not later than 2 years after enactment, the CPSC would be required to develop a risk assessment methodology for the identification of shipments of consumer products using, as far as practicable, the International Trade Data System (ITDS), to evaluate and assess information about shipments of consumer products intended for import into the customs territory of the U.S.; examine, in consultation with CBP, how to share information collected and retained by the CPSC, etc.

Inspection and record-keeping requirements. The Conference Report would amend 15 USC 2065 to require the CPSC, by rule, to condition the manufacturing for sale, offering for sale, distribution in commerce, or importation into the U.S. of any consumer product or other product, on the manufacturer's compliance with the inspection and recordkeeping requirements of the CPSA and CPSC's rules with respect to such requirements.

Destruction of non-compliant imported products. The Conference Report would amend 15 USC 2066(e) to state that any products refused admission into the customs territory of the U.S. shall be destroyed unless, upon application by the owner, consignee, or importer of record, the Treasury Secretary permits the export of the product in lieu of destruction. If the owner, consignee, or importer of record does not export the product within 90 days of approval to export, such product would be destroyed.

Increased Staff at Ports of Entry, Training for Product Safety Inspectors

The CPSC would be required to hire at least 500 additional personnel to be assigned to duty stations at U.S. ports of entry, or to inspect overseas production facilities, by October 1, 2013, subject to the availability of appropriations. In addition, the Conference Report would require CPSC, no later than 1 year after its enactment to develop a plan for coordinating with CBP regarding the number of CPSC personnel that should be stationed at U.S. ports of entry and the extent and nature of cooperation between CBP and CPSC.

Not later than 180 days after enactment, the CPSC would be required to report to Congress on its efforts to develop standards for training product safety inspectors and technical staff employed by CPSC.

Civil and Criminal Penalties Would Increase

The Conference Report would increase civil and criminal penalties as follows:

Maximum civil penalty of $100,000. The relevant sections of the CPSA, FHSA, and the Flammable Fabrics Act (FFA) would be amended so that the maximum civil penalty for any violations specified in the relevant sections would be $100,000 for each such violation, not to exceed $15,000,000 for any related series of violations, effective on the date that is the earlier of: (i) the date on which the CPSC issues a final regulation on its interpretation of the penalty factors described in section 20(b) of the CPSA (15 USC 2069(b) and the relevant sections of the FHSA and FFA; or (ii) one year after enactment.

Increased criminal penalties. The relevant sections of the CPSA, the FHSA, and the FFA regarding criminal penalties would be amended so that such violations would be punishable by (i) imprisonment for not more than 5 years (from 1 year) for a knowing and willful violation of that section; (ii) a fine determined under 18 USC 3571 (from no more than $50,000); or (iii) both.

Criminal penalties could include asset forfeiture. 15 USC 2070 would be amended by adding a new paragraph to state that in addition to the penalty provided by 15 USC 2070(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.

All-Terrain Vehicle (ATV) Standard

Within 90 days after enactment, the CPSC would be required to publish in the Federal Register as a mandatory consumer product safety standard the American National Standard for Four Wheel ATVs Equipment Configuration, and Performance Requirements developed by the Specialty Vehicle Institute of America (ANSI/SVIA-1-2007). The standard would take effect 150 days after it is published, and would make it unlawful for any manufacturer or distributor to import into or distribute in commerce any new assembled or unassembled ATV unless the ATV complies with each applicable provision of the standard, etc.

¹"Children's product" means a consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a consumer product is primarily intended for such children, the Conference Report 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"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 Conference Report for complete list of products.)

(See ITT's Online Archives or 07/31/08 news, 08073110, for BP summary of the House passage of the Conference Report and summary of the bill based on a House Republican Conference press release.

See ITT's Online Archives or 07/29/08 news, 08072902, for BP summary of the Conferees reaching agreement on consumer product safety legislation, with links to related summaries.

See ITT's Online Archives or 03/19/08 and 01/07/08 news, 08031915, and 08010710, for BP summaries of the Senate's version of H.R. 4040 and the House's version of H.R. 4040, respectively.)

Senate Commerce, Science, and Transportation Committee press release announcing passage of the Conference Report (dated 07/31/08) available at http://commerce.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=9aa7ad5b-05bd-42cd-b70b-10108463742a&Month=7&Year=2008

Conference report available at http://energycommerce.house.gov/CPSC/ConferenceReport.072908.HR4040.FINAL_002_xml.pdf

Joint explanatory statement (dated 07/28/08) available at http://energycommerce.house.gov/CPSC/JointExplanatoryStatement.072908.CPSAJES7.pdf

BP Note

CPSC Acting Chairman Nord has issued a statement in response to congressional passage of the H.R. 4040 conference report. Nord stated that she appreciated and applauded the fact that Congress has given the CPSC many of the additional authorities and enforcement tools she requested. In addition to these new tools, the bill also contains many new missions and mandates for the agency - responsibilities that are not funded by the bill. Therefore, the next step for Congress will be to pass an appropriations bill that will fund these new requirements. (CPSC Acting Chairman Nord's statement available at http://www.cpsc.gov/cpscpub/prerel/prhtml08/08349.html.)