House Subcomm Reports New Version of Draft Bill to Amend CPSIA

(See ITT’s Online Archives or 04/06/11 and 04/08/11 news, 11040621 and 11040821, for BP summaries of the first version of the draft bill and the April 7 hearing.)

Would Delay/Limit 100 ppm Lead, Reduce 3rd-Party Testing, Change Database, Etc.

The draft bill, called the “Enhancing CPSC Authority and Discretion Act of 2011” (ECADA), would reduce the number of children’s products affected by the CPSIA 100 parts per million (ppm) lead content limit and delay that limit until August 14, 2012; create a “functional purpose” lead content exemption; reduce the number of children’s products requiring third-party testing; apply the phthalate limits only to accessible parts; make several changes to the public database of safety incidents; provide for exemptions from the tracking label requirement; etc.

Subcommittee Highlights of Draft Bill

According to a Subcommittee summary, the following are highlights of the draft:

Delay & limit 100 ppm lead limit - would revise the lead limits to apply the existing step-down from 0.03% (aka 300 ppm) to 0.01% (aka 100 ppm) lead content to products that are intended primarily for children 6 and under and that can bemouthed. It would also postpone the 100 ppm limit for one year (until August 2012). In addition, it would give CPSC the authority to apply the 100 ppm limit to children’s products intended for children above age 6 or that cannot be mouthed if it determines that it is necessary to protect children’s health.

Prospective lead content limits -- would make both the 300 ppm and 100 ppm lead limits prospective, permitting sell-through of existing, legally-compliant inventory.

“Functional purpose” lead exception - would create a “functional purpose” exception for products or component parts that cannot meet the lead content limits if the lead serves a functional purpose, and reasonably foreseeable exposure to the product will not result in elevated blood lead levels. (The previous version’s exemptions provisions were broader.)

Alternative lead limits for ATVs, bikes - would create an alternate lead limit for outdoor recreational products such as ATVs and bikes based on the lead levels CPSC adopted in existing stays of enforcement for some of these products.

Limit third-party testing - would require mandatory third-party testing as a basis for certification for: (i) all priority standards named in the original statute (i.e., lead in paint, cribs, pacifiers, small parts and lead content in children’s metal jewelry); (ii) all durable nursery products established by the CPSC, and (iii) other standards for which third-party testing began on or before February 10, 2011. (The earlier version would have limited third-party testing to only lead in paint, cribs, pacifiers, small parts and lead content of children’s metal jewelry.)

More third-party testing at CPSP’s discretion - CPSC would be able to require third-party testing for other standards (or portions of standards) or for product classes but with prerequisites, such as small batch manufacturing exceptions and cost-benefit analysis. The draft would also make it unlawful to divide production into small quantities to avoid third-party testing.

Moratorium on 3rd-party testing for lead content pending review - would require CPSC to conduct a review of third-party testing requirements for lead content (not including jewelry), and establish a moratorium on enforcement until it completes its review and makes any revisions necessary to satisfy the new prerequisites for third-party testing. A review and moratorium would also apply if third-party testing requirements are adopted for phthalate limits and the toy standard before enactment. The draft would also allow CPSC to revise other third-party testing requirements to promote flexibility or to remove undue burdens.

Continued compliance testing at CPSC’s option - would give CPSC the option to require continued compliance testing, subject to a prior determination that the benefits justify the costs.

Limit phthalates bans to accessible parts, allow exemptions -- would make the existing phthalate limits (often termed bans) applicable only to accessible, plasticized component parts. It would give the CPSC flexibility to exempt products from the phthalate prohibition. It would also create deadlines for beginning and completing the rulemaking to end the interim phthalate prohibition if the Chronic Hazard Advisory Panel (CHAP) so recommends. In addition, the draft would harmonize the definition of “children’s toy” with the mandatory toy standard and clarify that it is limited to items that also fall within the definition of “children’s product”.

Allow exemptions from “tracking labels” - would give CPSC authority to exempt products of classes of children’s products from the tracking label requirements where compliance is not practicable and permit CPSC to create alternative tracking label requirements for exempted products.

Public database changes on who submits reports, etc. -- would clarify eligibility to submit reports of harm to the public database, only permitting persons who suffered harm or risk of harm, family members, next of kin, or lawyers or others expressly authorized representatives to submit reports. The draft bill would establish submission of the location of the product and the contact information for the person harmed as preconditions for posting the report. It would also establish a process for improving product descriptions in the reports of harm where the CPSC agrees the initial description is inadequate.

Create process for material inaccuracies in database - would create a process for resolving claims of material inaccuracy and make misrepresentations relating to the database unlawful (e.g., false reports or false claims of material inaccuracy).

Automatic updates of durable nursery standards, etc. -- would provide a mechanism for updating durable nursery product standards automatically whenever the voluntary standard is revised, subject to CPSC veto. It would also prevent retroactive application of any future crib standard and allow licensed child-care facilities (not including home-based child care) to continue using fixed-side cribs they now own (not drop-side cribs) if they have never been recalled and the State or local jurisdiction requires such facilities to meet certain safeguards relating to their cribs.

Definition of children’s products - would revise the definition of the term “children’s product” to make it internally consistent, with no significant effect on coverage. (The previous version of the draft bill would have significantly revised the definition by lowering the age limit defining children’s products. However, the current revision may have more of an effect than the Subcommittee states at it involves products for “use by” children instead of products “for” children.¹)

Remove FDA provisions from toy standard -- would remove FDA-enforced provisions from the mandatory toy standard.

Augment subpoena authority - would augment existing subpoena authority for documents with authority to subpoena physical items. The draft bill would also permit the Commission to delegate subpoena authority to the General Counsel for “friendly” subpoenas to Federal, State, and local government agencies.

Access to medical information -- would deem the CPSC qualified for a HIPAA exception so that it may receive medical information in investigations.

Effective on enactment -- the draft bill would be effective on the date of enactment except where otherwise specified. (The previous version would have taken effect on the date of the CPSIA’s enactment, making it retrospective.)

(Note that the amendments approved by the Subcommittee were relatively minor and do not change the substance of this summary.)

¹The draft bill would change the definition of children’s product to mean a “consumer product designed or primarily intended for use by children 12 years of age or younger,” instead of “a consumer product designed or intended primarily for children 12 years of age or younger.”

Subcommittee memo and summary, dated 05/10/11, available here

Draft bill (without approved amendments), dated 05/10/11, available here.