TIA Summary of Federal Legislation
The following is a summary of portions of the Consumer Product Safety
Act of 2008 relevant to toys and other children's products, as well as
provisions related to CPSC Reform. Significantly, this legislation
establishes uniform national preemptive standards for toys containing
lead and phthalates, toy advertising with sales opportunities, and upon
adoption of ASTM F-963 as a mandatory federal standard. Effective
dates vary and apply to goods sold into U.S. Commerce after dates
referenced in legislation or regulations implementing the applicable
This summary is provided as an overview of the legislation and should
not be considered an authoritative account or interpretation of the Act.
Significant work is left to be done by the CPSC to propose and adopt
implementing regulations, and there is substantial room for
interpretation of various provisions of the Act. This Summary should be
read with caution. Consult with legal counsel and quality assurance
counsel regarding the application of the provisions of the Act to such
products and operations that may be affected.
Lead in Children's Products (Sec. 101)
Scope: Materials and substrate of any children's
Requirement: The limits on lead in children's products
will be established as follows and according to this timetable:
- 600 parts per million (ppm) – effective 180 days after
enactment of the Act
- 300 ppm – effective 1 year after enactment of the Act
- 100 ppm, if determined technologically feasible by CPSC, –
effective 3 years after enactment of the Act (if determined not
feasible, CPSC must establish the lowest limit that is feasible and
lower than 300 ppm in this same timeframe.)
These limits must also be periodically reviewed by CPSC and revised
downward to require the lowest amount of lead that they determine
Exceptions include/may include:
- Parts or components that are inaccessible to a child and not exposed
due to a sealed covering or casing even under reasonably foreseeable use
and abuse. Paint, coatings or electroplating do not qualify as a barrier
for inaccessibility. Within one year of enactment, the CPSC must provide
guidance on what will be considered inaccessible. (Until then, rely on
description provided in the legislation.)
- Product or material that CPSC determines will neither result in
absorption of lead in the body under reasonably foreseeable use and
abuse or have any other adverse impact on public health or safety.
- Certain electronic devices – if compliance with the limits is
determined not technologically feasible by CPSC, the Commission will
issue regulations to eliminate or minimize the potential for exposure to
accessibility of lead in such electronic devices and establish a
timetable by which such products shall be in full compliance if
Lead in Paint and Surface Coatings (Sec. 101, part (f))
Scope: Children's products
Requirement: The limit will be reduced from the current
0.06 percent (600 ppm) requirement to 0.009 percent (90 ppm).
Testing: The Act allows for consideration of
alternative methods of testing for lead in paint including x-ray
florescence technology (XRF) when the total weight of the paint or
surface coating to be tested is no greater than 10 mg or no more than 1
cm2 of surface area. Additionally, the Act calls on CPSC to study the
effectiveness, precision and reliability of XRF and other alternate
methods for measuring lead in paint and surface coatings – and if
determined to be at least as effective, precise and reliable as other
methods the agency may promulgate regulations governing the use of such
methods. The Act would permit such alternate methods to be used as a
screening tool to determine whether further testing or action is
Mandatory Testing and Certification (Sec. 102)
Scope: Any product subject to a children's product
safety rule under this Act, or any other similar standard, regulation,
ban or rule under any other Act enforced by the Commission.
Requirement: Effective 90 days after enactment of the
Act, manufacturer of a product must certify, based on testing, that
product complies with all applicable standards and rules enforced by the
CPSC, and specify each such rule.
CPSC will establish and publish notice of the requirements for
accreditation of conformity assessment bodies (see timeline below). For
any product manufactured more than 90 days after the Commission
publishes such notice, testing must be done by an accredited independent
conformity assessment body and before importing for consumption or
warehousing, or before distributing in commerce. The Act allows testing
by a governmental entity or a conformity assessment body owned managed
or controlled by the producer as long as there are safeguards against
undue influence and bias and the conformity assessment body provides
equal or greater consumer safety protection as a third party independent
Timeline for Accreditation: The Commission shall publish notice of
requirements for accreditation of conformity assessment bodies according
to the following product-specific timelines:
- Lead paint – Not later than 30 days after enactment of the
- Full and non-full size cribs; pacifiers – Not later than 60
days after enactment;
- Small parts – Not later than 90 days after enactment;
- Children's metal jewelry – not later than 120 days after
- Baby bouncers, walkers and jumpers – Not later than 210 days
- Products subject to all other children's product rules – at
the earliest practicable date but no later than 10 months after
The Commission may accredit third party conformity assessment bodies,
or designate an independent organization to do so, and shall
periodically review and revise the accreditation requirements,
maintaining a list of accredited entities on its website. Note: TIA's
Toy Safety Certification Program is intended to provide an appropriate
certification system under the Act and will seek CPSC recognition for
toy safety certification.
Certificates must be legible, in English, and include: the date and
place of manufacture and where the product was tested, including the
name, address, phone and contact info for the person responsible for
maintaining records of test results. Certificates must accompany the
applicable product or shipment and a copy must be provided to each
distributor and retailer of the product. The manufacturer (or private
labeler) must be able to furnish a copy upon request by the Commission.
The Commission may rule to provide for electronic filing of
certificates, up to 24 hours before arrival at US Customs of imported
Tracking Labels for Children's Products (Sec. 103)
Scope: Children's products
Requirement: Effective one year after enactment of the
Act, manufacturers must place permanent, distinguishing marks on a
product and its packaging, to the extent practicable, that will enable
the manufacturer and ultimate purchaser to ascertain: the name of the
manufacturer, date and location of production and identifying production
information (cohort, batch, run number or other identifying
information). This provision recognizes that flexibility is needed for
different types of products and allows the manufacturer to use its own
This section also stipulates that advertising, labeling or packaging
of a product, if it references a consumer product safety rule or
standard, must be in compliance with that rule or standard.
Product Registration for Durable Nursery Products (Sec. 104)
Scope: Durable infant and toddler products defined
as the following products: full- and non-full size cribs; toddler beds;
high chairs booster chairs and hook-on chairs; bath seats; gates and
other enclosures; play yards; stationary activity centers; infant
carriers; strollers; walkers; swings and bassinettes and cradles.
- Calls for CPSC, in consultation with industry and others, to assess
effectiveness of voluntary standards related to durable infant or
toddler products and promulgate federal standards that are equally or
- Also requires product registration cards (and an electronic
equivalent option) be provided with the products and information
collected to be maintained by the manufacturer and used only in the
event of a recall or safety alert. Calls on CPSC to study the
effectiveness of consumer registration forms and potential alternate
recall notification technology.
- This section also makes it a violation of federal law to
manufacture, sell, contract to sell or resell, lease, sublet, offer,
provide for use or otherwise place in the stream of commerce a crib that
does not comply with a federal standard for those products. Application
to resellers, child care facilities, hotels and other such entities is
Labeling Requirement for Advertising of Toys and Games (Sec.
Scope: Retailers, manufacturers, importers,
distributors, private labelers of toys and games
Requirement: Any advertisement that contains a direct
means for the purchase or ordering of product, must also contain any and
all applicable cautionary statements that are already required under the
FHSA on or near the product. (e.g. If a game has a small parts warning,
this cautionary statement must be repeated in any point-of-purchase
advertising such as a catalog or online retailer.). The legislation
stipulates the language, type style and layout that must be used in the
cautionary statement in advertising. It is incumbent on the
manufacturer, importer or private labeler to inform the retailer of such
a requirement for the product in advertising and the retailer to inquire
of the supplier. CPSC, within 90 days of enactment, must promulgate
regulations related to this requirement. Effective 120 days after
enactment for internet websites; 180 days for catalogs and other printed
Mandatory Toy Safety Standards (Sec. 106)
Scope: ASTM F963-07 Consumer Safety Specification on
Requirement: Beginning 180 days after enactment, ASTM
F963-07 shall be considered a consumer product safety standard issued by
the Commission. Exceptions to this are Section 4.2 and Annex 4 regarding
flammability, as well as any provision that restates or incorporates an
existing mandatory standards.
Further, within one year of enactment, the Commission, in
consultation with industry and other experts, shall examine the
effectiveness of ASTM F963-07 or its successor standard specifically
related to magnets; toxic substances; toys with spherical ends;
hemispheric-shaped objects; cords; straps and elastics on toys; and
battery-operated toys. Within one year of such assessment, CPSC shall
promulgate rules that take into account other children's product safety
rules that are more stringent than such standards, if determined this
would further reduce risk of injury from such products.
After promulgating these rules, the Commission shall use the same
process to undertake an assessment and promulgate rules on the remaining
sections of ASTM F963 (or its successor) until standards for all
“product categories” have been addressed, with the CSPC
determining the priority order. CPSC will also periodically review and
assess the standards to determine if and where additional, more
stringent rules may be called for.
With future revisions to ASTM F963 standard, CPSC has 90 days after
notice from ASTM of a revised version to notify ASTM if it has
determined that the revised standard does not improve the safety of the
consumer product covered. Without such notice from CPSC, the revised
ASTM standard would become a federal rule 180 days after notification by
ASTM of the revision to CPSC.
The legislation allows for states to apply for an exemption for an
ASTM adopted standard or regulation in accordance with existing
pre-emption provisions. CPSC shall consider the following factors, among
others, when assessing whether states can meet a heavy burden required
to justify an exception: technological and economic feasibility; cost of
compliance; geographic distribution of the product; and the need for a
national, uniform standard for such a product.
Study of Preventable Injuries and Deaths in Minority Children
Related to Consumer Products (Sec. 107)
Requirement: Calls on the federal government to
initiate a study, beginning no later than 90 days after enactment, to
assess disparities in the risks and incidents of preventable injuries
and deaths among children of minority populations.
Prohibition on Sale of Certain Products Containing Phthalates (Sec.
Scope: Six phthalates; Children's toys and childcare
- Toy – consumer product designed and intended for a child 12
years or younger for use by the child when he/she plays.
- Childcare article – consumer product designed or intended by
the manufacturer to facilitate sleep or the feeding of children age 3
and younger or help children with sucking or teething.
- Also stipulates factors and resources upon which intended age of the
product should be determined.
- Toy that “can be placed in the mouth” – if any
part of the toy can actually be brought to the mouth and kept in the
mouth by the child so that the toy can be sucked or chewed (if product
can only be licked it is not regarded as able to be “placed”
in the mouth.) Toy or part must be smaller than 5 cm in one dimension to
be “placed in the mouth”.
- Permanent ban – 180 days after enactment, prohibits toys or
child care articles that contain concentrations of more than 0.1 percent
of the phthalates DEHP, DBP, or BBP.
- Interim Ban – 180 days after enactment and until a final rule
is promulgated, an interim ban on any children's toy or child care
article that contains more than 0.1 percent of DINP, DIDP, or DnOP.
- Study – calls for CPSC to appoint a Chronic Hazard Advisory
Panel (CHAP) to study and assess the potential health effects on
children of all phthalates (alone and in combination) and phthalate
- Final Rule – Calls on CPSC to promulgate a final rule, as
warranted, based on the results of the assessment, report and
recommendations of the CHAP.
Additional, Miscellaneous Provisions
Increased CPSC authority, staffing and funding (Sec.
Reauthorizes of the Commission; designates additional funding for the
agency beginning in 2010 and increasing annually to arrive at a $136
million annual budget in 2014; requires CPSC to report on how funding
will be allocated; allows Commission to operate with a temporary quorum
of two members; calls for increased CPSC staffing to at least 500
full-time equivalents, including assigning personnel to US ports of
entry or to inspect overseas manufacturing facilities.
Provides for expedited rulemaking and changes to the existing
rulemaking process and procedures; additional CPSC rules; internal
audits and reporting; and sharing of information with federal, state,
local and foreign government agencies.
Consumer Product Safety Information Database (Sec.
Calls on CPSC to establish and maintain a publicly available, searchable
database online that includes information from Section 15(c) reporting
or any public notice of corrective action; reports of harm related to
the use of consumer products submitted by consumers; local, state or
federal government agencies; health care professionals; child service
providers; and public safety entities. No later than 6 months after
enactment the agency must provide a detailed implementation plan,
including reporting requirements, access; protection against release of
confidential or other protected information; review and verification;
process by which manufacturer or private labeler can respond or comment
on comments submitted on their product, etc.
Enhanced Recall Authority and Corrective Action Plans (Sec.
Calls for CPSC to approve Corrective Action Plans in writing. If
Commission finds a corrective action plan not effective or appropriate
or not effectively executed, the Commission may order, amend or require
amendment of the action plan. Calls on CPSC to establish guidelines for
recall notices, no later than 180 days after enactment, and lists the
minimum requirements for content of the recall notice.
Inspection of Firewalled Conformity Assessment Bodies and
Identification of Supply Chain (Sec. 215)
- Provides for CPSC to determine that conformity assessment bodies are
appropriately firewalled from the manufacturer, importer or private
labeler for whom they are performing the assessment.
- Requires manufacturers, importers, retailers and distributors of
consumer products to identify, upon request of CPSC:
- The product manufacturer by name, address (or other requested
- Each retailer or distributor to whom the product was supplied
- Each subcontractor
Penalties (Sec. 217)
Increases the maximum civil penalties the Commission can assess for
violations to from $1.85 to $15 million with a $100,000 minimum per
violation and established factors for the Commission to consider in
assessing penalties for violations. It also amends the criminal
penalties permissible for violations to include asset forfeiture for
knowing and willful violations.