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From Products Liability Law Daily, October 14, 2015

CPSC clarifies rules for component part testing, textile lead limits

By Pamela C. Maloney, J.D.

By means of a direct final rule, the Consumer Product Safety Commission (CPSC) clarified when component part testing can be used and which textile products have been deemed “not to exceed the allowable lead content limits.” In tandem with the direct final rule, CPSC issued a notice of proposed rulemaking, inviting comments on its determinations with regard to these issues. If no adverse comments are received during the comment period, which closes on November 13, 2015, no further action will be taken by the agency and the direct final rule will take effect on December 14, 2015 (CPSC Direct Final Rule, 80 FR 61729, October 14, 2015; CPSC Notice of Proposed Rulemaking, 80 FR 61773, October 14, 2015).

Background. In November 2011, the Commission promulgated 16 CFR part 1109, Conditions and Requirements for Relying on Component Part Testing or Certification, or Another Party’s Finished Product Testing or Certification, to Meet Testing and Certification Requirements (component part testing rule). The component part testing rule is intended to give all parties involved in testing and certifying consumer products pursuant to section 14 of the Consumer Product Safety Act the flexibility to procure or rely on required certification testing where such testing is easiest to conduct or least expensive. The component part testing rule includes additional requirements for specific products.

Testing and certification rule changes. In the direct final rule CPSC clarified that subpart B of the component part testing rule applies only to products or requirements expressly identified in subpart B rather than placing limitations on the use of component part testing of chemical content. In addition, the Commission revised the rule to make it clear that the requirements of subparts B and C are only required if applicable to the circumstances identified in those subparts. Thus, manufacturers are free to use component part testing in addition to the circumstances specified in subpart B (paint, lead content of children’s products, and phthalates in children’s toys and child care articles) and subpart C (composite testing).

The amendment also updates section 1109.13 to refer to the guidance issued by CPSC after publication of the component part rule. Specifically, section 1109.13 addresses when a certifier may rely on component part testing for phthalates in children’s toys and child care articles. The amendment adds a reference to the Commission’s guidance concerning inaccessible component parts (16 CFR part 1199). This change will make the provision concerning phthalates (section 1109.13) consistent with the provision concerning lead (section 1109.12) and will help certifiers understand which components are inaccessible and do not need to be tested for phthalate content.

Textile lead limit changes. CPSC has determined by rule that certain products and materials inherently do not contain lead at levels that exceed the lead content limits under section 101(a) of the Consumer Product Safety Improvement Act, as long as those materials have not been treated or adulterated with materials that could add lead. The effect of these determinations is to relieve the material or product from the third-party testing requirement. In the direct final rule, CPSC announced its determination that textiles which have treatments and applications consisting entirely of dyes do not exceed the lead content limits, and are not subject to the third-party testing requirements for children’s products, as long as those materials have not been treated or adulterated with materials that could add lead.

MainStory: TopStory ChildrensProductsNews ProductTestingCertNews

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