President Bush has signed the "Consumer Product Safety Improvement Act of 2008" (H.R. 4040) into law as Public Law No. 110-314. Competing versions of the bill generated considerable debate in Congress for a number of months, but the final version passed the House and Senate by overwhelming margins.

This legislation is the most comprehensive overhaul of consumer product safety laws since the U.S. Consumer Product Safety Commission ("CPSC") was created by passage of the Consumer Product Safety Act ("CPSA") in 1972. The new law was triggered by well-publicized recalls of imported toys with lead paint and other hazards, but the new law goes far beyond toys, and it will touch virtually all manufacturers, importers, distributors and retailers of consumer products.

The full scope and impact of the new legislation will not be known for some time because it directs the CPSC to create a host of new regulations and procedures, including some based upon research and investigations that have yet to be performed. Some of the most significant impacts of the Act involve toys and children's products, including widespread bans on lead and phthalates, new safety standards and test procedures, mandatory third party testing and certification for imported children's products, mandatory product tracking labels and product registration, and new warnings in advertising and on websites for toys and games.

Provisions applicable to all products include substantially increased civil penalties (up to $15 million), lower burdens of proof for criminal prosecution, allowing state attorneys general to enforce federal product safety laws, giving the CPSC greater authority to dictate the terms of product recalls and enforce product safety laws, whistleblower protection for employees who report safety violations or cooperate in investigations, and stepped-up enforcement efforts involving other federal agencies, foreign product safety regulators and state health agencies.

Most provisions of the new law are effective immediately, but some will be phased in over time. Below are highlights of the new law.

New Definitions for Toys and Children's Products

• Many of the Act's provisions, including bans on phthalates and lead, are tied to new definitions and general rules applicable to all children's products and more specific rules for toys and child care articles.
• "Children's products" are defined as "a consumer product designed or intended primarily for children 12 years of age or younger." The CPSC issued age determination guidelines for children's products in 2002 that are referenced in the new Act.
• "Children's toys" include products "designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays."
• "Child care articles" are defined as "a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething."

Ban on Phthalates in Toys and Child Care Articles

• Prohibits the sale of children's toys and child care articles with concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP). Effective February 10, 2009.
• Establishes an interim ban on the sale of children's toys that can be placed in a child's mouth and all child care articles that contain more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP). Toys that can be put in the mouth are defined to include toys or parts smaller than five centimeters in dimension, and exclude toys that can only be licked. The interim ban is effective February 10, 2009; further studies and product safety rules regarding phthalates and phthalate alternatives are mandated.
• Provides only limited preemption of state laws regulating phthalates and phthalate alternatives — several states have adopted similar (but not always identical) laws banning or regulating various phthalates in the past year.

Ban on Lead in Toys and Children's Products

• Mandates a phased-in ban on lead in all children's products, requiring that lead levels be reduced to 600 parts per million by February 10, 2009; 300 parts per million by August 14, 2009; and 100 parts per million by August 14, 2011. Electronic devices and inaccessible component parts will be subject to rules to be issued by August 14, 2009.
• Reduces permissible lead paint content from 0.06 percent to 0.009 percent (effective August 14, 2009) and possibly lower after further studies are conducted. Also mandates changes in how lead content in paint is tested and calculated.

Mandatory Testing and Certification

• Restates and expands requirements for self-certification and testing for all products that are subject to any rule, ban, standard or regulation that is enforced by the CPSC. Effective November 12, 2008.
• Requires third party testing and certification of all children's products for compliance with safety standards, with detailed requirements for laboratory accreditation, firewalling rules for labs owned or controlled by the manufacturer and priorities for testing certain products. The testing and certification provisions take effect 90 days after the CPSC has published its requirements for accreditation of third party testing bodies. The CPSC must publish these requirements by September 13, 2008, for lead paint; October 13, 2008, for cribs and pacifiers; November 12, 2008, for small parts; December 12, 2008, for metal jewelry; March 13, 2009, for baby bouncers, walkers and jumpers; and June 14, 2009, for all other children's products.

Additional Safety Rules Affecting Toys and Children's Products

• Adopts ASTM F963-07 standard as a mandatory consumer product safety rule, effective February 10, 2009, and directs studies that may result in additional rules. ASTM F963-07 is a comprehensive safety specification applying to most toys and many child care articles. It does not cover sporting goods, camping goods, athletic equipment, musical instruments or furniture, but does apply to "toy counterparts" of such items.
• Creates new rules for durable infant and toddler products, including cribs, high chairs, strollers, infant carriers, bath seats, gates, swings and other items, that will facilitate owner registration by requiring manufacturers to provide postpaid registration cards and to take other steps that will enable more efficient distribution of recall and safety notices.
• Mandates permanent tracking labels on children's products and their packaging by August 14, 2009, that provide source, production date and batch information so as to improve tracking and identification of recalled products.
• Expands warning requirements for choking hazards for children's toys and games. The Federal Hazardous Substances Act requires warnings on packaging and accompanying descriptive materials for toys and games containing small balls, balloons, small parts and marbles that they present choking hazards and are not for children under age 3. The new Act requires that these choking warnings be included in all Internet advertisements by December 12, 2008, and in all catalogs and other printed materials by February 10, 2009, if they provide a "direct means for the purchase or order of the product."

Recall Procedures and Enforcement Penalties

• Greatly increases civil penalties for violations of the CPSA, as well as the Flammable Fabrics Act and the Federal Hazardous Substances Act, to $100,000 for each violation, with a maximum cap of $15 million for a related series of violations (the existing limits are $8,000/$1,825,000). Civil penalties can be imposed for late reporting of potential safety hazards and other violations. The Congressional Budget Office estimates that this provision will increase federal revenues from civil penalties by $43 million over the next 10 years.
• Increases criminal penalties by permitting larger fines, up to five years' imprisonment, and forfeiture of assets associated with a violation, and removes a requirement that directors, officers and agents be aware of violations before being criminally charged.
• Eliminates the right of a party recalling a product to elect whether they will offer a refund, repair or replacement for recalled products and permits the CPSC to require a refund, repair and/or replacement as the CPSC determines to be in the public interest.
• Authorizes state attorneys general to enforce the CPSA and related laws by seeking injunctive relief, but requires states to give the CPSC advance notice of any intent to initiate a state action. (State enforcement previously was prohibited, and the CPSC did not support this provision of the new Act.)
• Eliminates any obligation to perform a cost-benefit analysis when establishing standards for packaging household substances under the Poison Prevention Packaging Act of 1970.
• Creates new requirements for the content and dissemination of recall notices and permits the CPSC to require recall notices in languages other than English.
• Prohibits any CPSC regulatory activities from preempting damage claims arising under common law and state statutes, or from preempting California Proposition 65.
• Establishes whistleblower protection for employees who report violations, testify or otherwise provide assistance in consumer product safety enforcement proceedings, or who refuse to participate in an employer's illegal conduct. Aggrieved employees may seek injunctive relief, reinstatement, back pay (with interest), damages, litigation costs, expert witness fees and attorneys' fees.
• Provides stronger prohibitions against stockpiling and selling banned or recalled products, or any products that violate product safety regulations.
• Calls for a study to determine the feasibility of requiring that manufacturers, importers and retailers establish escrow funds, purchase insurance or otherwise provide financial security to pay for recalls and/or destruction of recalled products.

Other Products and Substances

• Imposes an immediate ban on three-wheeled all-terrain vehicles (ATVs), adopts American National Standard ANSI/SVIA-1-2007 as a mandatory safety standard for all other ATVs (effective 150 days after the CPSC publishes notice) and mandates additional studies, standards and safety programs targeted at ATVs intended for use by youth.
• Mandates a study of risks resulting from formaldehydes in textiles and apparel.

Import-Export Issues

• Imposes mandatory testing and certification for imported children's products and other regulated products, as discussed above.
• Prohibits most exports of recalled, banned, hazardous or non-conforming products to other countries.
• Establishes policies to utilize the International Trade Data System established under the Tariff Act of 1930 and to increase cooperation with U.S. Customs and Border Protection to prevent non-compliant products from entering the United States.
• Establishes procedures to destroy products that have been refused admission into the United States for failure to conform to safety regulations.
• Authorizes further studies to assess the effectiveness of measures and activities intended to prevent the importation of unsafe products into the United States.

Administrative and Procedural Changes

• Provides significant budget increases to the CPSC to fund new hiring, safety and enforcement initiatives, including restoring the Commission to a full five members (it has been operating with only three commissioners).
• Mandates that the CPSC develop a searchable database, accessible to the public through the Internet, on the safety of consumer products that will include reports from certain sources on deaths and injuries reportedly caused by consumer products, and which includes manufacturers' names, product names and other information.
• Requires that the CPSC shares information with state public health agencies.
• Bans industry-sponsored travel by CPSC commissioners and staff, and authorizes a travel budget to address the increasingly global market for consumer products.
• Provides for expedited rulemaking and judicial review of CPSC rules and standards.
• Makes technical changes to the Pool and Spa Safety Act, 15 U.S.C. § 8001, which mandates safety rules for pools and spas that are administered by the CPSC.

For Further Information

If you have questions about this Alert or would like more information, please contact Paul S. Rosenlund, any other member of the Products Liability and Toxic Torts Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.