House Passes Bill to Impose Stricter Regulations on Consumer Products

This bill, which has been referred to as the “compromise bill” between the House and the Senate, comes after months of discussion between the two chambers and follows similar action taken by the European Union and several states.  Prior to the compromise bill, the House passed  a different version in December 2007, and the Senate passed an independent version in March 2008.  The Senate bill was considered the tougher of the two because it recommended some reforms that the House bill did not include.  For example, the House bill did not include the regulation of phthalates, provided for a smaller budget for the Commission, and imposed a less rigorous standard for testing.

Specifics of the Bill

The most significant provisions of the compromise bill are summarized below:

• Lead.  Lead, which is already regulated as a toxic metal, is particularly of concern in children’s products.  The compromise bill bans lead from products manufactured for children of the age 12 and under.  The permissible level of lead in children’s products would be 600 parts per million (“ppm”) within 180 days, 300 ppm after one year, and 100 ppm after three years. The Commission is directed to periodically review and adjust the level as it deems appropriate.
• Phthalates.  Phthalates are a group of chemicals often used to make plastic products more soft and pliable. They are found in a variety of children’s products such as rubber ducks, soft books, and teething rings. Supporters of the compromise bill claim that studies show that toxins can be ingested when toys made with phthalates are placed in a child’s mouth. Due to this concern, the compromise bill permanently prohibits the sale of children’s toys or child care articles manufactured for children of the age 12 and under that contain more than 0.1% of the following three phthalates: (1) di-(2 ethylhexyl) phthalate (DEHP), (2) dibutyl phthalate (DBP), and (3) benzyl butyl phthalate (BBP)..

  The compromise bill also temporarily prohibits the sale of children’s toys or child care articles manufactured for children of the age 12 and under that contain more than 0.1% of three additional phthalates: (1) diisononyl phthalate (DINP), (2) diisodecyl phthalate (DIDP), and (3) di-n-octyl phthalate (DnOP).  Whether the temporary prohibition becomes permanent will be decided at a later date after a scientific review by a Chronic Hazard Advisory Panel.   The ban would become permanent unless the Panel determines, and the Commission agrees, that there is a “reasonable certainty of no harm” to children, pregnant women, or other susceptible individuals.

• Funding.  The compromise bill boosts the Consumer Product Safety Commission’s budget to $118.2 million in fiscal year 2010, $115.6 million in fiscal year 2011, $124.0 million in fiscal year 2012, $131.8 million in fiscal year 2013, and $136.4 million in fiscal year 2014.  $25 million will also be directed towards establishing a searchable public database that includes reports of injuries, illness, death or risk related to consumer products.
• Mandatory Testing.  The compromise bill requires mandatory third-party testing of products made for children of the age 12 and under.  Mandatory toy standards shall be set by an international safety organization.

Potential Implications

If the compromise bill is also passed by the Senate and not vetoed by the President, the ban is scheduled to become effective in 180 days, which means that it should not affect the upcoming holiday season for toy manufacturers, suppliers, and retailers. However, many retailers and manufacturers have already toughened their own standards in anticipation of the law.

If the bill becomes effective, the enforcement provisions are as follows:

• Civil Fines: Increase the civil fine penalty cap from $5,000 to $100,000 per individual violation, and from $1.25 million to $15 million for aggregate violations.
• Criminal Penalties: Increase criminal penalties to five years in prison for those who knowingly and willingly violate product safety laws.
• Attorneys General: Provide authority for State Attorneys General to enforce consumer product safety laws and act expeditiously to remove dangerous products from shelves.
• Whistleblower Protections: Provide whistleblower protections for private sector employees.