Safety Matters

CPSC Advice Not Practical, WeMakeItSafer Changes That

 The CPSC continues to recommend that parents, childcare facility owners and school administrators check every belonging and new purchase on the CPSC website to make sure it has not been recalled.  While we strongly support the idea of looking for recalls, using the government site to do so simply is not practical.

Depending on the type and age of product, it can take five to ten minutes or more using the CPSC site to determine if a particular product has been recalled.  This is because each product must be searched individually using an archaic search system that requires review of text based lists and multiple clicks before one can be even relatively confident that the item they are checking has not been recalled.  To make sure a home is free from recalls would take about 60 hours, assuming 500 products, which is probably fewer than most of us own. (Consider that the kitchen and garage alone have well over 200 items each in tools, gadgets and appliances, and that the average baby registry checklist includes about 100 items.)

WeMakeItSafer turns the traditional search model on its head.  Rather than looking for each specific item that may or may not be in the recall database, consumers instead look through images of recalled products to see if they recognize something they own.  It seems paradoxical but, because humans are incredibly visual and capable of processing information in pictures at high rates of speed, this method is much faster, even with hundreds or even thousands of recalled products.  Thanks to an image gallery that is organized by product categories and can be narrowed by an array of criteria, one can quickly skim through potentially relevant recalls.

Using WeMakeItSafer it would only take one to two hours to make sure the same 500 product home is free of recalls, and the results would be much more accurate.  After consumers have conducted a complete search once, they can sign up for a bi-monthly email that includes images of newly-recalled items in order to stay up to date.  Again, being able to quickly skim through images is a much more efficient alert system than that of the CPSC, which includes lengthy text that consumers are unlikely to read.  To sign up  just send an email to InformMe@WeMakeItSafer.com .

If a consumer needs to look up a specific item, such as one they want to sell or give away, that is much faster on the WeMakeItSafer site as well.  Because we have built advanced filtering options and, again, results are returned with images, it is far faster than hunting around on the CPSC site.

The first problem we set out to fix with regard to consumer product safety was this issue regarding recalled product identification.  We could not be more pleased with the search system we developed – a true labor of love, it is our first free tool for consumers.  We hope you find it as helpful as we do.  Please let us know what you think.

A Summary of Requirements and Exceptions for Tracking Labels, CPSIA Section 103a

Commissioner Nord had previously voted to stay product labeling requirements until the CPSC could determine specific rules for labels, while Commissioner Moore voted to keep the August 14th deadline, stating that specifications from the CPSC were not necessary. 

Earlier this week, the CPSC published policy guidance that sides with Moore.  Permanent tracking labels will be required on all products primarily intended for children aged 12 and under, as well as the products’ packaging, beginning August 14, 2009.

Here is a summary of the requirements and exceptions as the law is interpreted by the CPSC:

1)    The domestic manufacturer or importer is responsible for labels.

2)    “Permanent labels” are any distinguishing mark remaining intact throughout the useful life of product (or packaging).

3)    Each manufacturer is to determine the type of marking best suited for their product and packaging.

4)    Consumer must be able to identify:
        a.    Manufacturer or Private Labeler
        b.    Location (City, State, Country) of manufacture¹
        c.    Date product was assembled or packaged
        d.    Cohort information (eg. batch and run number), if applicable

5)    Manufacturer must also be able to determine the exact source of product and components
    
6)    Information need not be together in one location or marking.

7)    Manufacturer can employ a code or number for their markings if consumers can use it access the required information (e.g. online).

8)    Exceptions to labels on packaging include:

        a.    If label on product can be seen through packaging.

9)    Exceptions to labels on products include:

        a.    Products too small to be marked.
        b.    Products sold with multiple pieces (only one piece needs to be marked).
        c.    If product includes storage container for multiple pieces, container and one piece must be marked.
        d.    Items sold through vending machines.
        e.    Marking weakens or damages product.
        f.    Surface impossible to mark.
        g.    Aesthetics of product would be ruined by marks.
        h.    For socks and hosiery, follow Care Label rules.

10)    Penalties for non-compliant companies will be assessed based on a company’s “good-faith effort” to comply, as determined by company records and comparison with the company’s peers.

¹ The CPSC specified that, in case of multiple parts being manufactured on multiple dates, the date of production can identified as a range or as the date of assembly or package.  They did not, however, specify the definition of "location of production" when multiple parts are produced in different locations.

http://www.cpsc.gov/about/cpsia/sect103policy.pdf
http://www.cpsc.gov/about/cpsia/faq/103faq.html

Does the CPSC Intend to Enforce the CPSIA Lead Limits on Children's Products or Not?

Those who read this blog regularly, know that I generally post the facts with little added commentary.  However, a few of the Commissioners’ statements with regard to their votes on whether to exclude crystal and glass beads from lead limits left me quite confused over the stand the CPSC is taking, and will take, with regard to enforcing the Consumer Product Safety Improvement Act (CPSIA of 2008) under its new leadership.

At the end of her explanation for denying the Fashion Jewelry Trade Association (FJTA) exemption request, Tenenbaum states:

“There is a wide range of children’s products that contain crystal and glass beads that are subject to the 101(a) lead limits and, as the Commission staff recognized, many of these products do not present an immediate danger of harmful lead exposure to children.  Consequently, we will focus our enforcement activities on crystal and glass bead products designed and intended primarily for children six years of age and younger, the population most at risk of mouthing and swallowing small objects.”

What, exactly, is she saying – although you will still be breaking the law if you make or sell products that have crystal or glass, lead-containing beads for children aged seven to twelve, we will look the other way?

She goes on to state, “While this approach does not provide the exact relief that the FJTA seeks through this request, I urge manufactures and retailers of crystal and glass beads to remember that, especially during the implementation period of the CPSIA, the agency’s primary enforcement focus will remain on noncomplying lead products that present serious health risks to children.”

Huh?  So there is some relief being provided.  Again, is that because the CPSC will not enforce the law, or because they will grant an exclusion for these products if they are intended for children aged seven to twelve?  Although the latter could make sense given that, under normal use and abuse, older children are less likely to put the beads in their mouth, the statements left me confused – if  I make or sell children's products, can I or cannot I use crystal and glass beads that contain lead above the legal limits in items intended for children under 12?

Moore’s statement may be even more confusing.  “I am voting today to direct our enforcement staff to focus their activities on these products [intended for children six and under].”

Um, was that up for a vote?  Clearly, I’m missing something.  I understand the CPSC has and always has had limited resources, forcing it to focus its attention on the most pressing dangers, but to me, these statements send a very mixed message.  Will the rules change when the CPSC does have the funds to enforce the law?

Whether or not I agree with Nord’s vote to stay the lead limit restrictions for crystal and glass jewelry, she makes a statement that is more in line with my understanding of the law:

“The CPSIA does not recognize that risks impact children of different ages in different ways and instead takes a “one size fits all” approach.  This is unfortunate, yet this is reality.”

In other words, the CPSC does not have the power to split the CPSIA in half, applying it to only some the children for which the laws were written, regardless of whether it would be "common sense" to do so.  Again,what are we to make of these statements on enforcement?  Is this not like saying, “The speed limit is 60 mph, but don’t worry, we don’t have enough police officers to enforce it.”

I am officially joining the ranks of the bewildered on this one.

Lead in Beaded Jewelry for Children: The CPSC Votes are In

The Fashion Jewelry Trade Association (FJTA) asked the Consumer Product Safety Commission for an exclusion on lead limits for glass and crystal beads used in children’s jewelry and other products.  The vote came in late today:

1.    Tenenbaum:     Denied
2.    Moore:             Denied
3.    Nord:               Stay of Enforcement

Although the glass and crystal breads tested at levels 900 ppm to 23,000 ppm, much higher than the current limit of 600 ppm, the FJTA argues that the amount of lead that could leach from and be absorbed into the body of a child who mouthed or swallowed a bead would be too small to be hazardous.  The FJTA further says that the amount of lead exposure would be below that of any metal jewelry that is in compliance with the 300 ppm limitation, which goes into effect in August of this year.

Tenenbaum and Moore based their decisions on one main fact - the law is written such that exemptions can be granted only in the case that no lead would be absorbed into the body under foreseeable use and abuse, not simply that the amount of lead absorbed is too small to be hazardous.  Tenenbaum adds that, given the wide variability in lead content of the glass and crystal beads, it is not accurate to say that in every case the beads would present less lead-risk than compliant, metal jewelry.

Nord agrees with Tenenbaum and Moore’s conclusion that an exclusion cannot be granted.  However, she states that it is one of the “unintended consequences of the CPSIA” and, because of the impact on small businesses and consumers who want to purchase the products, the only choice is to impose a stay of enforcement until Congress can review the issue.   Although, as Nord points out, Congress has said they would consider adjustments to the CPSIA, there is not any indication that this particular issue would be on their list of considerations at all, let alone any time soon.  Nord does not suggest a length of time for the stay she proposes.

Here are links to statements by Tenenbaum, Moore and Nord.

Registration Card Requirements for Durable Infant and Toddler Goods Effectively Postponed for up to Seven Months

Section 104(b) of the Consumer Product Safety Improvement Act (CPSIA of 2008) requires the Consumer Product Safety Commission (CPSC) to set in place a final ruling regarding product registration cards for durable infant and toddler goods by August 14, 2009.  However, the notice of proposed rule making (NPR) published in the federal register today indicates that public comments are not due until September 14, 2009.  Furthermore, the notice proposes that the effective date for registration cards will be 180 days after the final rule is published, rather than the customary 30  to 90 days. 

Assuming the final rule is published 30 days after all comments are received, registration cards may not be required until mid-April 2010. 

For manufacturers and importers who had anticipated having to include cards and develop database tracking systems by fall 2009, this news will come as a welcome, if only temporary, reprieve.  To consumer advocates who had been promised the hope of a more effective product recall system, the news is undoubtedly disappointing.

Whether you agree or disagree with the proposals, now is the time to speak up.  The Commission is seeking comments on everything from whether a definitive list of “durable goods” ought to be made available to whether or not the prepaid return cards should follow a mandatory format.  Above is an image of the proposed cards that the Commission is currently suggesting every manufacturer adopt (click the image to enlarge).

The proposed layout is a perforated card whereby the top half can be kept by the consumers for their records and the bottom half returned to the manufacturer.  The CPSIA mandates that the cards include the model name and number and the manufacture date, which the Commission proposes can be be pre-printed or affixed with a label.

One of the questions raised is whether the proposed design is likely to improve safety.  For example, are consumers likely to keep the stub they tear off and, should they have a safety question several years later, are they likely to refer to the card rather than look up the manufacturer online or in a directory?  If the answer is no, then perhaps the double-sized, perforated card is unnecessary.  Another question the Commission asks is whether or not manufacturers should be allowed to offer registration by email rather than maintaining a webpage where consumers can register their products.

You can submit your comments to the CPSC via the regulations.gov website, here.  Please note that your name, contact information and comments, as submitted, will be printed for public view.

Commissioners Disagree on Product Tracking Labels

It appears that, for the moment, we are at a stand-still with regard to tracking labels for children’s products, which the CPSIA requires as of August 14, 2009.  Earlier, I had predicted a stay as the CPSC works out the details of the label requirements.  As of today, however, a stay remains in limbo as the two-person commission voted 1 – 1 for and against such an action.

Nord, who voted for the stay, argues that there simply is not enough time for manufacturers to develop and implement a labeling system.  She further implies that manufacturers need guidance from the CPSC on exactly what is required before they can comply, and that more time is needed for the CPSC to work out those details as a “one-size-fits-all” system will not work. 

Moore counters by stating that, “Unlike other provisions of the CPSIA, section 103 does not require the Commission to adopt regulations as an aid to compliance.”  He points out that the new law does not stipulate, for example, that the labels be a certain size or in a particular location on the product and suggests that this serves as Congress’ understanding that one-size does not fit all. 

Should we land on Nord’s side of the fence, manufacturers of all sizes will be relieved of the labeling requirement for another year.  Her hope is that, by then, there will be solid guidelines for a more standardized labeling system, possibly a globally accepted one.  For large manufacturers for whom placing thousands of labels will require costly operations, design and manufacturing changes, a stay could save millions of dollars in future reworking.

By contrast, should the labeling requirements be enforced on schedule, as supported by Moore, companies will be allowed to implement any reasonable system that works with their particular product, keeping in mind the purpose of the statute.  Especially with regard to smaller businesses, this will allow flexibility in developing cost-effective labeling methods.  Although Moore makes room for developing standards in the future, he says that if that becomes necessary, it would be done so over time.

Here is Section 103 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) in its entirety: 

SEC. 103. TRACKING LABELS FOR CHILDREN’S PRODUCTS.

(a) IN GENERAL.—Section 14(a) (15 U.S.C. 2063(a)), as amended
by section 102 of this Act, is further amended by adding at the end the following:

‘‘(5) Effective 1 year after the date of enactment of the Consumer Product Safety Improvement Act of 2008, the manufacturer of a children’s product shall place permanent, distinguishing marks
on the product and its packaging, to the extent practicable, that will enable—

‘‘(A) the manufacturer to ascertain the location and date of production of the product, cohort information (including the batch, run number, or other identifying characteristic), and
any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks; and

‘‘(B) the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).’’.

(b) LABEL INFORMATION.—Section 14(c) (15 U.S.C. 2063(c)) is amended by redesignating paragraphs (2) and (3) as paragraphs (3) and (4) and by inserting after paragraph (1) the following:

‘‘(2) The cohort information (including the batch, run number, or other identifying characteristic) of the product.’’.

(c) ADVERTISING, LABELING, AND PACKAGING REPRESENTATION.—
Section 14 (15 U.S.C. 2063) is further amended by adding at the end the following:

‘‘(d) REQUIREMENT FOR ADVERTISEMENTS.—No advertisement for a consumer product or label or packaging of such product may contain a reference to a consumer product safety rule or a voluntary
consumer product safety standard unless such product conforms with the applicable safety requirements of such rule or standard.’’.

You can read the entire Section 2063 of the the CPSA, which this section of the CPSIA amends, in the resources section of this blog.

CPSIA Rulings – A Long Road Still Ahead

 

For as many rulings as have been handed down by the Consumer Product Safety Commission (CPSC) over the last seven months since the Consumer Product Safety Improvement Act (CPSIA of 2008) was enacted, there are as many still to come.  From the content of mandatory product recall announcements to the specifics surrounding registration cards and tracking labels, the extent of the unknowns that linger, as effective dates draw nearer, is as daunting as ever. 

The CPSC still has a huge task ahead.  At a point when, theoretically, about half the rulings should be already worked out, it seems unlikely that the remaining deadlines can be met.  I would not be surprised if we see more “grace periods” or official stays similar to the one we saw in January for certain certification and third-party testing requirements. 

One such case where a stay is possible is with regard to permanent labels for children’s products (CPSIA Section 103).  The CPSC is currently seeking advice as to whether or not to work toward a universal, international labeling and tracking system.  While a global system may be a good move, manufacturers of children's products sold in the US are required by the CPSIA to begin using permanent labels on products and packageing by August 14th of this year.  Although talks are already underway, with a meeting being held this week (see below), given that public comments are not even due until April 27, 2009, my guess is that the effective date for tracking labels will need to be pushed out. 

In the meantime, manufacturers struggle with whether to take steps toward planning the redesign of their production lines and business processes to accommodate the new labeling laws and internal tracking that will be needed – a nontrivial task to say the least – or to wait until they know exactly what the requirements will be.

Either way, there is something manufacturers and others can do besides sit and wait for the CPSC to resolve the ambiguities of the CPSIA.  That is, participate in public meetings and comment requests.  Now is the best time to influence the final rulings on these laws.  Once they become official regulations, it is incredibly difficult to get them reversed.  

Opportunities to make your voice heard for this week are listed below.  You can find more information regarding location, times and links to official announcements on the Consumer Product Safety Information Calendar .  By clicking on the event title you will see additional details as well as a link to copy the event to your own calendar.

Monday, March 16 – Thursday March 19
CPSC Mtg re: ASTM F15 

Tuesday, March 17
CPSC Mtg re: Lead Testing and Tracking Labels for Jewelry

Wednesday, March 18 – Thursday, March 19
CPSC Mtg re: Barrier Fabrics

Wednesday, March 18
Product Labeling Mtg w/ CPSC re: a Proposed Global Traceability

Thursday, March 19
CPSC Mtg re: Certification Requirements, Specialty Products

Videos of CPSC Meetings Regarding Phthalates, ATVs and Bicycles Available Online

The CPSC is holding a series of public meetings to address issues related to the Consumer Product Safety Improvement Act (CPSIA of 2008).  Some of the meetings are presentations designed to clarify finalized, or nearly final rules, others are roundtable discussions in which the CPSC has asked the public to participate, providing input and data to consider when drafting final rules.

This week, three meetings were held – a presentation on phthalates, a roundtable discussion regarding ATVs and a roundtable discussion regarding bicycles.  If you missed the meetings, you can watch videos of them them online by following links provided here:

Phthalates Meeting, March 12, 2009

ATVs Meeting, March 11, 2009

Bicycles Meeting, March 11, 2009

All Children’s Products Soon to Require Permanent Identification Labels

Section 103 of the Consumer Product Safety Improvement Act (CPSIA), “Tracking Labels for Children’s Products,” amends US laws regarding Product Certification and Labeling (15 U.S.C. 2063).  (A redlined version of Section 2063, showing all changes imposed by the CPSIA is available here.)

As amended, beginning August 14, 2009, product labeling laws will require manufacturers of all children’s products to place permanent identification labels on both the packaging and the actual product, “to the extent practicable.” The new labels are to include information that will allow a consumer to identify the name of the manufacturer or private labeler, when and where the product was made, and any additional information necessary to distinguish the product from a similar item, such as the number of a production run.

As was the case before the CPSIA passed, the Consumer Product Safety Commission (CPSC) has the right to require private labelers to also include information on product labels that will enable a retailer to identify and, upon request, reveal to consumers the actual manufacturer.  Additionally, under section 2063, the CPSC maintains the authority to require certain products to include labels that specify which safety standards apply to the product and a certification that the product does in fact comply. Bicycle helmets are a good example of where the CPSC has exercised its authority regarding mandatory labels (image here).

Section 103 is one of the shortest sections of the CPSIA, which may actually make it one of the more challenging sections for the CPSC, as Congress specified few details regarding implementation of the new requirements.  Phrases like “to the extent practicable” are not defined, and the types of “cohort” and “other information” that ought to be included on the labels are vague.

Recognizing the challenge before them, the CPSC has issued a request for comments and information on just about every aspect of the new labeling laws, from what should be considered practicable to whether or not the US should work to help develop and adopt a uniform, international product-labeling system.  Addressing the latter, the CPSC directs interested persons to:  “Feasibility Study: Postmanufacturing Traceability System between the PRC and the EU, November 2008,” though the CPSC is careful to note that it does not necessarily agree with or endorse the study.

Comments are due to the CPSC by April 27, 2009. They can be emailed to: TrackingLabels@cpsc.gov .   More details on the specific information sought and how to fax, phone or mail comments can be found here.

The CPSC also announced today that a meeting will be held on March 18, 2009 to discuss a proposed action plan for the development of a global traceability system.  More information about the meeting can be found on the Consumer Product Safety Information Calendar.

CPSC Seeks Help from the Public in Determining What Products to Exempt from Phthalate Bans

Limits on phthalates in certain child care articles and toys became effective on February 10, 2009.  To address confusion over exactly what products qualify as “child care articles” or “toys,” the CPSC staff recently issued proposed guidelines to define both terms.  In addition, the proposed guidelines provide guidance on how to determine whether a product can be mouthed by a child, a modified restriction on the use of some phthalates. Although these sound like simple enough terms to define, there is still considerable ambiguity.  As such, the CPSC is turning to the public for help.

In general, the CPSC seeks comments as to whether their methodologies for defining “child care article” and “toy” are sound.  The CPSC also asks commenters to discuss why or why not specific products should or should not be exempted from the phthalate ban.  Products in question include:

• Art materials, model kits, and hobby items in which the finished products is not primarily of play value
• Athletic equipment
• Baby bouncers
• Baby swings
• Baby walkers
• Bibs
• Bicycles
• Camping goods
• Costumes and masks
• Crib and toddler bed mattresses
• Crib sheets
• Cribs and crib components such as rails
• Decorated swimming goggles
• Furniture
• Infant sleep positioner
• Kites
• Mattress covers
• Musical instruments
• Non-powder guns
• Pajamas
• Play sand
• Playground equipment
• Powered models of aircraft, rockets, boats, and land vehicles
• Promotional items
• Shampoo bottles in animal or cartoon character shapes
• Sharp-pointed darts
• Sling shots
• Sporting goods
• Strollers
• Toy versions of actual athletic equipment
• Tricycles
• Various types of balls
• Wading pools
• Water wings
• Wheeled ride-ons

The full proposal and list of questions can read here:
http://www.cpsc.gov/about/cpsia/draftphthalatesguidance.pdf 

If you would like to provide information as to why any of these, or other products, ought to be excluded (or not) from the phthalate ban, you are encouraged to do so via any of the following methods:

E-mail: section108definitions@cpsc.gov.
Telefacsimile: (301) 504-0127
Mail:    Office of the Secretary,
            Consumer Product Safety Commission,
            4330 East West Highway,
            Bethesda, Maryland 20814
Telephone: (301) 504-7530

Please include in the subject-line of written correspondence: “Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108; Request for Comments and Information.”

Comments are due to the Commission by March 25, 2009.