This sweeping law is now being implemented by CPSC through a series of regulations, guidance documents and public hearings. The law is so complex and demanding, in fact, that CPSC has adopted a stay of enforcement which is currently in place until February 10, 2010. Many of the requirements contained in the CPSIA are already in effect, therefore, but CPSC has voluntarily chosen not to enforce them for the time being. The Commission has also indicated that it plans to extend a critical portion of the stay—testing requirements for the presence of lead—until August 10, 2010 but, at present, has not actually implemented that extension.
For the nonwovens industry, there are three primary aspects of the CPSIA which will be critically important once the stay is lifted: 1) whether certain products—diapers, mattresses, mattress pads, etc. – will be banned from the U.S. market because they contain more than 0.1% of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DHP) or benzyl butyl phthalate (BBP); 2) how to test and certify that products such as disposable diapers and training pants comply with the new lead standards; and 3) how to implement tracking label requirements that could apply to every diaper, training pant, baby wipe and similar item offered for sale to the U.S. market.
With regard to the first issue, there are a couple reasons why diaper manufacturers may be comforted. One is a CPSC draft guidance published on February 23, 2009, which specifically notes that “diapering” products are not subject to the phthalate ban because they are not considered “childcare articles” under the definition Congress wrote into this section of the new law. Another cause for comfort comes from laboratory test results reported to CPSC by the Personal Absorbent Products Council in which no detectable level of two phthalates banned under the CPSIA—BBP and DBP—were found in a sampling of disposable diapers and only trace amounts of the third—DEHP—were detected (and those at levels well below the amount permitted under the new law).
Not as comforting, however, are other comments submitted to CPSC regarding the draft guidance which took issue with these findings. A coalition of consumer groups including the Consumer Federation of America, for instance, claims that certain cover stock used with disposable diapers does contain phthalates, and the National Resources Defense Council disputes CPSC’s preliminary claim that diapers do not fit the legislative definition of “childcare articles.”
At this point, therefore, it is anybody’s guess how CPSC will ultimately come down on the issue of whether disposable diapers are subject to the phthalate ban contained in the new law. There is no question, however, that manufacturers of children’s mattresses, mattress pads, bed clothing, and other products that “facilitate sleeping, feeding, sucking or teething” should be actively working to make sure that the products they manufacture are free of BBP, DBP, and/or DEHP no later than February 10, 2010.
Beyond phthalates, nonwovens manufacturers should also be thinking about CPSIA provisions related to lead testing/certification and tracking label marks.
Specifically, with regard to lead, Section 101 of the CPSIA mandates that any children’s product—as defined under the Consumer Product Safety Act—be banned from the U.S. market if found to contain more than 300 ppm of lead on any accessible part of the product. This limit will be tightened to 100 ppm as of August 14, 2011 unless CPSC determines it is technically impossible to meet such a stringent standard.
What is a Children’s Product?
The definition of “children’s product” contained in this section of the law is far more expansive than the definition contained in the section banning certain phthalates. Whereas the phthalate ban only applies to products that facilitate sleeping, feeding, sucking and teething, the new lead standards and tracking label requirement apply to any consumer product primarily intended for use by those who are 12 years old or younger.
One of the most problematic aspects of meeting the new lead standards relates to testing requirements. The issue is so contentious, in fact, that CPSC convened a two-day public workshop on December 10 and 11, 2009 to address numerous unresolved issues surrounding requirements needed to ensure compliance with the 300 ppm standard and issued notice on December 15 indicating its intent to extend this part of the stay until August 10, 2010.
What is known at present is that, eventually, all children’s products will need to be tested by a third party conformity assessment body (more commonly known as a third party laboratory) and, based on those tests, certified as compliant with the new standard. The third party laboratory will have to be accredited and its accreditation must be recognized by CPSC. A listing of CPSC-recognized laboratories can be found at www.cpsc.gov.
Still to be determined, however, are issues such as adequate sampling for test purposes, frequency of testing requirements, whether component testing will be allowed and under what circumstances, responsibilities for testing and certifying products/components, and specific tests that will be considered adequate to prove compliance. All of these issues are currently up in the air, and CPSC staff who participated in the December workshop repeatedly expressed frustration over the need to settle such matters so quickly.
How Nonwovens Fare
For nonwovens, CPSC determined earlier this year that various component parts typically used to produce diapers, training pants, baby wipes and the like are inherently lead-free and, therefore, exempt from testing requirements. Natural and manmade fibers, for example, are exempt from testing (dyed or un-dyed), as are “plant-derived” and “animal-derived” materials including certain types of glue. Paper is also specifically exempted.
Beyond that, however, all other components used in the manufacture of children’s products manufactured by the nonwovens industry will likely be subject to testing and certification requirements once the stay is lifted.
Tracking label requirements may also be put in place as early as February 10, 2010 that could potentially impact nonwovens producers as well. Specifically, Section 103 of the CPSIA requires that permanent distinguishing marks be placed on every item of a children’s product offered for sale in the United States as well as its packaging. These marks must convey location and date of production, batch number, run number, or “other identifying characteristic.” Congress placed this provision into the law primarily to facilitate consumer participation in recall efforts.
CPSC issued a guidance document in October 2009 regarding tracking label requirements which offers no suggestion that nonwoven producers/importers will be excluded from having to label every single item primarily intended for use by children. Indeed, the guidance document lists six specific examples of circumstances when a product’s packaging can be marked but the product itself need not be. None of these examples appear to apply to products made from nonwovens. The guidance does note, however, that manufacturers will have leeway in determining how best to comply with tracking label requirements.
The trade association which represents manufacturers of reusable diapers – RDA, or the “Real Diaper Association” – has detailed information regarding compliance with CPSIA tracking label requirements on its website, and has even developed a webinar to facilitate compliance with the new requirements. Considering CPSC guidance that it will look at “practices of peer manufacturers” in determining whether a claim that implementing tracking labels is too onerous, these efforts by RDA will make it difficult for nonwovens producers to claim they only need to label packaging and not product.
Hopefully, all of this is not news to nonwovens producers, and plans have already been put in place to comply with CPSIA requirements, potentially as soon as February 10, 2010. Otherwise, manufacturers and importers may want to familiarize themselves with the significant penalties that are also contained in the act.
They should know, for instance, that the CPSIA increases the cap in civil fines for introducing banned products into the U.S. market from $5000 to $100,000 per individual violation, and from $1.25 to $15 million for multiple violations. The new law also removes a long-standing requirement that CPSC notify a company of noncompliance before taking enforcement action, and demands that non-complying products be subject to recall instead of allowing companies to offer repair, replacement, or refund as an alternative.
Peter Mayberry is the president of Mayberry & Associates. He can be reached at firstname.lastname@example.org.