On January 1, 2009, it will be illegal to manufacture, sell or distribute in the state of California toys and child care articles which contain phthalates. The California Attorney General's Office has written a letter to Consumer Product Safety Commission (CPSC) General Counsel Cheryl A. Falvey regarding the upcoming implementation of California's state law restricting phthalates. The letter, dated December 3, 2008, states that California's phthalate restrictions under Assembly Bill 1108 are not preempted by the new federal Consumer Product Safety Improvement Act of 2008 (CPSIA) and therefore will become effective on January 1, 2009.

California's phthalates ban, Assembly Bill 1108, prohibits the manufacture, sale or distribution in commerce of:

• Toys and child care articles containing DEHP, DBP or BBP in concentrations exceeding 0.1%.
  
• Toys and child care articles intended for use by a child under three years of age containing DINP, DIDP or DnOP in concentrations exceeding 0.1%, if the products can be placed in a child's mouth.

The California restrictions apply to all such products, regardless of date of manufacture. In an advisory opinion letter released last month, Ms. Falvey stated that the CPSIA phthalate restrictions would apply only to products manufactured after the effective date and would not be applied retroactively to existing inventory.

As a means of explaining why California's phthalate restrictions are not preempted by the CPSIA, the letter points out some subtle ways in which the California ban varies from the CPSIA ban. Among those noted are the following:

• California defines "child care article" as all products designed or intended by the manufacturer to facilitate sleep, relaxation, or the feeding of children, or to help children with sucking or teething. CPSIA omits the term "relaxation."
  
• CPSIA limits child care articles to those intended for children age three and younger while California's definitions of "child care article" and "children" do not contain age limitations.
  
• California provides no definition of what "can be placed in a child's mouth," while CPSIA does define this.

The letter states that because of the variations cited above, there may be some products to which CPSIA provides no phthalate limits at all that would be subject to regulation under AB 1108, and therefore, the CPSIA does not preempt California's law.

The letter further states that because AB 1108 was signed into law in October 2007, some 14 months ago, industry has had sufficient time to prepare to comply with the requirements that take effect on January 1, 2009. The letter states: "The Attorney General, and other public enforcers, can and will enforce California’s phthalates ban after that date."

Click here for PDF of Attorney General's letter.

STR offers analytical expertise in phthalate testing. As a CPSC accredited laboratory, STR can assist our clients in complying with the new requirements under CPSIA as well as those under the California law. 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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