CPSIA and its impact on the attractions industry

In recent weeks, there has been a lot of talk about the Consumer Product Safety Improvements Act (CPSIA) and the effects it will have on the attractions industry.

The CPSIA (H.R. 4040) had strong bipartisan support and was passed by a vote of 424-1 in the House of Representatives and 89-3 in the Senate. The bill was signed by President Bush on Aug. 14, 2008.

As a member of the National Association of Manufacturers (NAM) CPSC Coalition, IAAPA worked to balance the safety improvements for consumer products in the United States with burdens placed on members of the attractions industry in this legislation.

Regardless, the CPSIA will affect a broad range of IAAPA members, from FECs and other facilities in the U.S. to manufacturers and distributors both in the U.S. and abroad.

The effect dates for various parts of the CPSIA are rolling. Below are some of provisions which will go into effect in February 2009. For the rest, check out Mike Bederka’s full story which appears in the January 2009 issue of FUNWORLD.

Lower Lead Levels
By Feb. 10, 2009, items designed or intended primarily for children age 12 and younger may not contain more than 600 parts per million (ppm) of lead. For now, the CPSC’s general counsel has taken the position that existing inventory cannot be sold after this date, unless it complies with the new lead limits. Maximum lead content levels decrease over the next two years.

Third-Party Testing
The legislation imposes an additional third-party testing requirement for all products primarily intended for kids 12 and younger. Every manufacturer (including an importer) or private labeler must have its product tested by an accredited independent lab and, based on the testing, issue a certificate that the product meets all applicable CPSC requirements.
Certificates must include info on the identity of the product’s manufacturer/private labeler, the testing lab, and the date and place of manufacturing and testing of the product. Products without the certificate cannot be imported or distributed in the United States.
Testing and certification for “small parts” is effective Feb. 10, 2009. Lead content testing and certification will go into effect in August, 2009.

Phthalates
As of Feb. 10, 2009, it will be illegal to manufacture, sell, distribute, or import into the United States any children’s toy that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).
There’s also an “interim prohibition,” beginning Feb. 10, 2009, on any toy that can be placed in a child’s mouth that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
The CPSC’s general counsel has written an advisory opinion that says Congress did not indicate in the law that the phthalates ban applies retroactively. Unless Congress or the CPSC commissioners reverse this opinion, existing inventory is not covered by the ban.

There has been recent discord about the CPSC’s enforcement of the CPSIA. A congressional hearing on the issue was scheduled for this week but postponed until January. Additionally, consumer advocacy groups, the Natural Resources Defense Council (NRDC) and Public Citizen, have filed a lawsuit in federal court against the CPSC as a result of the general counsel’s advisory opinion on phthalates.

Additionally, California's Attorney General has entered the fray and issued a letter to the CPSC declaring that 1) California’s state phthalate restriction which takes effect January 1, 2009, is not federally preempted and 2) that toys and child care articles containing excessive levels of phthalates cannot be sold or distributed in California after January 1, 2009, no matter when or where they were manufactured. In short, there will be retroactive application of the California phthalate ban effective January 1, 2008 and nothing the CPSC says to the contrary matters if you are doing business in California. The Attorney General, and other public enforcers, can and will enforce California’s phthalate ban effective January 1, 2009.

If you have questions about provisions of the CPSIA, visit the CPSC’s CPSIA web page. Because information changes daily, I strongly encourage all IAAPA members who may be affected by the CPSIA to sign up for e-mail alerts from the CPSC. As the issue develops, please stay tuned to the IAAPA web site, this blog, and FUNWORLD for updates.


**UPDATE**
December 17, 2008

The National Association of Manufacturers (NAM) CPSC coalition is petitioning the CPSC to provide guidance on testing and exemptions for lead limits as outlined in the CPSIA. IAAPA, as a part of the NAM CPSC coalition, has signed on to this petition.

The CPSIA imposes a limit on lead in substrates of "any part" of a children's product, defined as a consumer product designed or intended primarily for children 12 and under. The CPSIA sets forth standards and timetables to reduce lead in paint and in substrate materials. The first phase of reduced lead limits begins Feb. 10, 2009.

CPSC staff has issued accreditation standards for testing of lead in paint and metal but standards for testing other materials will not be issued until late next year. This has created confusion and hardship in the manufacturing industry. CPSC General Counsel has advised that the lead limits are retroactive, affecting all products on store shelves on February 10.

Under the current testing procedures, every component of a children’s product must be tested separately for lead. For example, if a manufacturer makes a hooded sweatshirt with an appliqué on it, the sweatshirt fabric and sewing thread, the appliqué, the drawstring, the plastic tip on the draw string, and the care label must all be tested separately for lead. Many of these components are not likely to pose a risk of lead exposure in reasonably foreseeable use and abuse situations.

If the CPSC does not act promptly to exclude materials and products that do not pose a genuine risk, hundreds of thousands of materials and products may be banned or will have to be tested for lead unnecessarily and at great expense, despite the fact that no laboratories are duly accredited to do lead substrate testing and no comprehensive screening methods have yet been approved by the CPSC staff for such testing. In addition, there are currently an inadequate number of accredited test laboratories to perform the testing under existing regulations and standards already being required.

**UPDATE**
January 15, 2009
We have scheduled a free webinar on the CPSIA for Friday, January 13, 2009. Please see this blog post for the details including registration information.

**UPDATE**
January 27, 2009
I have put all of this information and more on our new Toy Safety web page. I am no longer going to update this blog post so check the web page, NewsFlash and e-mails from IAAPA for current information.