Surprise, We’re Back: Washington State Announces It Will Enforce Limits on Lead, Cadmium and Phthalates in Certain Children’s Products

In a February 12, 2016 guidance document, Washington's Department of Ecology announced that it will begin to enforce limits on phthalates, cadmium and lead content in children's products that are within the scope of Washington's Children's Safe Products Act (CSPA) but are outside of the scope of the federal Consumer Product Safety Improvement Act of 2008 (CPSIA). This guidance is notable because in a 2009 report, the Department of Ecology had announced that it would defer to the federal law on the use of these chemicals. Therefore companies that manufacture, distribute or sell children's products outside the scope of the federal limits on these chemicals might not have been taking steps to help ensure that such products comply with the CSPA.

Chapter 70.240 RCW of the CSPA (which became effective in July 2009) states that no one "may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use" in the state of Washington any children's product or product component containing more than 0.009 percent lead by weight (90 ppm), 0.004 percent total cadmium by weight (40 ppm) or 0.10 percent total phthalates by weight (1000 ppm). These limits, however, are generally more stringent than the limits imposed for such chemicals by the CPSIA. According to the recent guidance from the Washington Department of Ecology, Washington state will now seek to enforce the CSPA limits on lead, phthalates and cadmium in certain children's products that are outside the scope of CPSIA's restrictions for such substances. Under the CSPA, "children's product" includes any of the following:

• Children's cosmetics ("cosmetics that are made for, marketed for use by, or marketed to children under the age of twelve");
• Children's jewelry ("jewelry that is made for, marketed for use by, or marketed to children under the age of twelve");
• Toys (products "designed or intended by the manufacturer to be used by a child at play");
• "A product designed or intended by the manufacturer to help a child with sucking or teething, to facilitate sleep, relaxation, or the feeding of a child, or to be worn as clothing by children;" and
• Child car seats.

Thus, under the new guidance, Washington state may seek to enforce the CSPA limits as to various children's products outside the scope of the CPSIA, such as the following:

• Children's cosmetics (other than in toys) for children under the age of twelve years (restrictions on lead, phthalates and cadmium);
• Jewelry (other than toy jewelry) for children under the age of twelve years (restrictions on phthalates and cadmium);
• Products to facilitate sleep, relaxation or the feeding of children (restrictions on cadmium in products for children of any age, and phthalates in products for children over the age of three years); and
• Clothing (including footwear, per the February 12 guidance document) (restrictions on phthalates and cadmium in clothing for all ages of children; and lead in clothing for children over the age of twelve years).

It remains to be seen when and how broadly Washington will begin to enforce the CSPA chemical restrictions and whether a challenge will be mounted on preemption grounds. Companies that manufacture, distribute or sell products in Washington that are intended or designed for children should determine whether such products are covered by the CSPA and if necessary have them tested to determine whether they comply with the applicable limits.

© Arnold & Porter Kaye Scholer LLP 2016 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.