The Consumer Product Safety Commission (CPSC) has posted on its website a letter dated November 17, 2008 in which CPSC General Counsel Cheryl Falvey addresses the retroactive application of the Consumer Product Safety Improvement Act of 2008 (CPSIA) to inventory. In this letter, Ms. Falvey reaffirms her original advisory opinion, dated September 12, 2008, and states that the lead content restrictions under Section 101 of the CPSIA are intended to be applied retroactively to existing inventory as of February 10, 2009. Therefore, as of that date, products not meeting the new lead limits under CPSIA would be treated as banned hazardous substances, making it unlawful to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the United States any such product. Similarly, the more stringent lead paint ban under Section 101 of the CPSIA would be applied retroactively to ban the sale of any product containing amounts over the new lead paint limit of 90 ppm in inventory or on store shelves as of the effective date of August 14, 2009.

Ms. Falvey presents a different legal analysis with respect to the phthalate provisions under Section 108 of the CPSIA, indicating that because it is considered a consumer product safety standard under the Consumer Product Safety Act, and not, as in the case of lead, a banned hazardous substance under the Federal Hazardous Substances Act, the prohibition on phthalates is applicable to products manufactured after the effective date. Therefore, the phthalate provision would not be applied retroactively to existing inventory. She further states that while it is unlawful to sell a product that does not conform to a consumer product safety standard, it is only unlawful to sell such products which are manufactured after the effective date of the new standard, which, in the case of phthalates, is February 10, 2009. Therefore, per the CPSIA, only children's toys and child care articles that are manufactured on or after February 10, 2009 would be required to comply with the prohibition on phthalates.

It is important to note that the views expressed in Ms. Falvey’s letter are her own and, having not been reviewed or approved by the CPSC, could be superseded by the CPSC at any time.

Link to: CPSC General Counsel's letter regarding lead and phthalates and inventory.

The CPSC has also posted a new HTML version of its CPSIA Frequently Asked Questions (FAQ). While this version simply provides readers various new options for navigating through the questions, significant revisions have also been made to the content of the questions, concerning general certificates of conformity and mandatory third-party testing (Section 102). These revisions are based primarily upon the new guidance provided via the final rule published in the Federal Register on November 18, 2008.

Link to: CPSIA Frequently Asked Questions.

Link to: CPSC's CPSIA web page.

As a CPSC accredited laboratory, STR is poised to assist our clients in complying with the new testing and certification requirements required under the CPSIA. We offer analytical expertise in lead and phthalate content testing, and our hazard prevention program for toys includes comprehensive design evaluation, safety testing, audit, inspection as well as responsible sourcing services. For more information, contact us at info@STRQuality.com.

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