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From Products Liability Law Daily, January 8, 2014

CPSC makes progress on CPSIA mandate to promulgate standards on durable infant and toddler products in 2013

By Joe Bichl

The Consumer Product Safety Commission (CPSC) completed work on a number of rulemakings in 2013 in its continuing effort to meet the regulatory mandate of the Consumer Product Safety Improvement Act of 2008, including rules that addressed phthalates limits in toys, bassinets and cradles, hand-held infant carriers, play yards, and others.

Durable infant/toddler products. In 2009, as directed by section 104 of the CPSIA, CPSC began work on safety standards for durable infant or toddler products. According to the CPSIA, these standards are to be “substantially the same as” applicable voluntary standards currently in play, or more “stringent” if CPSC determines that such stringency would be more effective in reducing injuries associated with a given product. CPSIA defines “durable infant or toddler product” as a “durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.”

Completed actions. In 2013, CPSC completed work or revised already completed work on the following durable infant and toddler products:

Bath seats/toddler beds/full size cribs/infant walkers. CPSC revised the safety standards for infant bath seats, toddler beds, full-size cribs, and infant walkers and swings, in accordance with Public Law 112–28, which established a process for updating standards that CPSC issued under the CPSIA. These final rules incorporated by reference the more recent versions of ASTM voluntary standards.

Play yard bassinets. Prompted by the death of an infant due to a misassembled play yard bassinet accessory, CPSC amended the mandatory play yard standard to address the hazards associated with play yard bassinet accessories that can be assembled without key structural elements. The standard incorporated by reference the most recent version of ASTM's play yard standard (ASTM F 406-13).

Hand-held infant carriers. CPSC finalized a safety standard for hand-held infant carriers, basing its final rule on the most recent version of the ASTM standard (ASTM F2050-13a) with one modification—a clarification of the definition of “hand-held infant carrier,” to include a specific reference to both “rigid-sided” and “semi-rigid-sided” products.

Bassinets and cradles. In its bassinet and cradle safety standard, CPSC incorporated the ASTM standard (ASTM F2194-13) with certain modifications, including a clarification of the scope of the bassinet/cradle standard; a change to the pass/fail criterion for the mattress flatness test; an exemption from the mattress-flatness requirement for bassinets that are less than 15 inches across; the addition of a removable bassinet bed stability requirement; and a change to the stability test procedure, requiring the use of a newborn CAMI dummy rather than an infant CAMI dummy.

Proposed actions. CPSC proposed a safety standard for strollers and carriages that currently is in the comment review stage of the rulemaking process. The standard would largely incorporate the ASTM voluntary standard “Standard Consumer Safety Specification for Carriages and Strollers (ASTM F833-13). However, CPSC proposed more stringent requirements in an effort to reduce scissoring and pinching. Following review of the comments, CPSC staff is expected to send to the Commission for consideration a briefing package on the final rule.

Other regulatory actions. CPSC completed work on a variety of regulatory actions in 2013 apart from its work on durable infant and toddler products, including finalizing standards on toy cap guns, third-party testing requirements, and phthalate limits in toys. The agency also proposed to change the way voluntary recalls are conducted, its staff’s role in voluntary standards’ activities, and the process for certification compliance.

Phthalates in toys. CPSC published guidance on inaccessible component parts in children’s toys as directed by section 108 of the CPSIA, which provides that the prohibition on products containing phthalates does not apply to any component part of children’s toys that is not accessible to a child through normal product use (78 FR 10503). CPSC adopted the lead guidance with respect to inaccessibility for phthalates.

Third-party testing. CPSC established requirements for third-party testing laboratories that are authorized to test children’s products in support of the certification required by the Consumer Product Safety Act (CPSA), as amended by CPSIA. According to CPSC, these requirements are largely the same as those that it had been following since passage of the CPSIA in 2008. The final rule establishes the requirements and procedures for CPSC acceptance of the accreditation of a laboratory for purposes of testing children’s products and addresses adverse actions that may be imposed against such laboratories.

Toy cap guns. Calling the existing regulations banning caps intended for use with toy guns “obsolete,” CPSC replaced them with ASTM F 963, “Standard Consumer Safety Specifications for Toy Safety,” which CPSC considered “more stringent” than current safety measures. The current CPSC regulations pertaining to caps intended for use with toys guns had been originally promulgated by the U.S. Food and Drug Administration.

Voluntary recalls. CPSC commissioners approved a proposal that would change the way in which voluntary recalls and corrective action plans (CAPs) are conducted and would make compliance programs legally binding. Acting Commissioner Robert Adler stated that companies should be required to stand by their commitment to their CAPs, insisting that making companies legally responsible for their agreements would reduce the chances of companies “slow-walking implementation” of the CAPs.

Voluntary standards activities. CPSC proposed to remove restrictions on agency participation and employee involvement in voluntary standards activities. Under the proposal, Commission employees could participate as voting members and accept leadership positions in voluntary standards development groups. Currently, employees may participate in voluntary standard development groups on a non-voting basis and they are not allowed to accept leadership positions in these groups.

Compliance certification. CPSC proposed to update and clarify its regulation on certificates of compliance (16 CFR Part 1110). The proposed rule would specify when certificates are required to accompany a finished product, who must certify a finished product, as well as the form and content requirements for certificates.

Cigarette lighters. CPSC adjusted the import value for cigarette lighters to $2.50, based on an increase in the Producer Price Index.

“Strong sensitizer” clarified. CPSC proposed to clarify the supplemental definition of “strong sensitizer.” A strong sensitizer, under the proposal, is a “substance that is capable of inducing a state of immunologically mediated hypersensitivity (including allergic photosensitivity) following a variable period of exposure to that substance. Hypersensitivity to a substance will become evident by an allergic reaction elicited upon reexposure to the same substance.”

MainStory: TopStory CPSCNewsStory

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