September 9, 2016

CPSC Proposes to Reduce Testing Requirements for Phthalates

Seller Beware: Consumer Protection Insights for Industry

On August 17, 2016, the Consumer Product Safety Commission (CPSC) issued a notice of proposed rulemaking that would reduce the burden of testing for phthalates in children's toys and child care articles. Phthalates are commonly used to soften plastics and as components of paints and adhesives. Under the proposed rule, third party laboratory testing for certain phthalates would no longer be required for four plastics—Polypropylene (PP), Polyethylene (PE), High-impact polystyrene (HIPS), and Acrylonitrile butadiene styrene (ABS)with specified additives.

Under the Consumer Product Safety Improvement Act of 2008 (CPSIA), manufacturers (including importers) are required to certify, based upon testing by an accredited third party lab accepted by CPSC, that a children's product complies with all CPSC-enforced standards before the product is imported or distributed in commerce. Among the numerous CPSC-enforced standards for which a manufacturer is required to test using a third party lab are limits on certain phthalates. Section 108 of the CPSIA prohibits six types of phthalates in a concentration above 0.1 percent in children's toys and child care articles —di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), and di-n-octyl phthalate (DnOP). Congress directed CPSC to seek opportunities to reduce third party testing burdens and authorized CPSC to issue new or revised third party testing regulations if the Commission determines "that such regulations will reduce third party testing costs consistent with assuring compliance with the applicable consumer product safety rules, bans, standards, and regulations."

CPSC contracted with the Toxicology Excellence for Risk Assessment (TERA) to conduct research on four types of plastic (PP, PE, HIPS, and ABS) to determine whether these plastics (with specified additives) contain certain phthalates in concentrations in excess of 0.1 percent. TERA reviewed 11 phthalates—six prohibited by statute and others that CPSC has proposed to add to the prohibited phthalates list. TERA found that the plastics did not contain any of the 11 phthalates in a concentration in excess of 0.1 percent. Thus, CPSC concluded that third party testing for the six phthalates (currently prohibited) is not necessary for PP, PE, HIPS, and ABS when combined with the specified additives (as the additives were found not to contain the prohibited phthalates.)

This new rule would not change the underlying obligation to comply with Section 108 phthalate prohibitions, but would provide some relief from required testing for manufacturers and importers.

CPSC is accepting comments regarding the proposed rule until October 31, 2016.

© 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.

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