New Limits on Phthalates and Lead Content in Children's Products Take Effect Tomorrow

February 9, 2009

Although the Consumer Product Safety Commission (CPSC) has voted to issue a one-year stay of enforcement on third party testing requirements for the new lead and phthalates content limits in children’s products, the Commission still expects manufacturers and importers to comply with the underlying standards and regulations that take effect on February 10, 2009.

Specifically, the new regulations limit the level of six phthalates (DEHP, DBP, BBP, DINP, DIDP, and DnOP) to 0.1% (1000 ppm) in children’s toys and child care articles, regardless of when they were manufactured.  Phthalates are a group of chemicals (oily, colorless liquids) that are used among other things to make vinyl and other plastics soft and flexible.

The new regulations also limit lead content in any accessible part of a children’s product to 0.06% (600 ppm) beginning February 10, 2009. As with phthalates, the CPSC has stated that children’s products are subject to the regulation regardless of their date of manufacture. However, in a notice on its website the CPSC has listed certain exceptions to the lead content regulations. These exceptions include children’s products made of certain natural materials, electronic devices for which there are no technologically feasible alternatives to the lead containing component, and more.

A “children’s toy” is defined by the Consumer Product Safety Improvement Act of 2008 (CPSIA) as a product intended for a child 12 years of age or younger for use when playing. The CPSC, responsible for enforcing the CPSIA requirements, has stated that it will follow the definition of “toy” in the mandatory toy standard which exempts such things as bikes, playground equipment, musical instruments, and sporting goods.

These regulations also apply to “child care articles,” which include products that a child 3 years of age and younger would use for sleeping, feeding, sucking or teething, (e.g., a pacifier/teether would be an item that would help a child with sucking or teething; a sippy cup would facilitate feeding; and a crib mattress would facilitate sleeping).

The CPSC expects companies to meet their reporting obligations under federal law and immediately tell the Commission if they learn of a children’s toy or child care article that contains more than the specified amounts of phthalates or lead content beginning February 10, 2009.  Companies should also be aware that the CPSIA generally prohibits the export for sale of children’s products that exceed the new phthalates and lead limits.

For additional information or guidance on these provisions, please contact a Barnes/Richardson attorney.