The initial list of Priority Products released for Safer Consumer Products Regulations

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The initial list of Priority Products released for Safer Consumer Products Regulations were issued on by the California CA-DTSC_Children-Padded-ProductsDepartment of Toxic Substances Control (DTSC) on March 13, 2014. The three categories of products that DTSC selected for inclusion in the initial proposed list are:

  • Spray Polyurethane Foam Systems containing unreacted diisocyanates;
  • Children’s Foam Padded Sleeping Products containing Tris(1,3-dichloro-2-propyl)phosphate or TDCPP; and
  • Paint and Varnish Strippers, and Surface Cleaners with methylene chloride.

The Priority Products listed will not be final until they are adopted into regulation. This process will be done in conformance with California’s rulemaking law – the Administrative Procedure Act (APA). The APA process includes a 45-day public notice and comment period. It allows DTSC up to one year from the public notice date to finalize the regulations. The March 2014 announcement is not the start of formal rulemaking. DTSC anticipates initiation of the rulemaking process for the Priority Products within 12 months. Each Priority Product may have a separate set of regulations.

Children’s foam-padded sleeping products that contain the flame retardant TDCPP have been proposed as an Initial Priority Product. These polyurethane foam-padded sleeping products include:

  • Nap mats and cots
  • Sleep positioners
  • Travel Beds
  • Bassinet foam
  • Portable crib mattresses
  • Play pens
  • Car bed pads

 
TDCPP is also known as chlorinated tris or tris(1,3-dichloro-2-propyl) phosphate. It is a high production volume chemical that is considered a carcinogen by California’s Office of Environmental Health Hazard Assessment.

NEXT STEPS

IF I MAKE A “PRIORITY PRODUCT,” WHAT DO I HAVE TO DO?

If you are a “responsible entity” [a business that manufactures, imports, distributes, sells, or assemble consumer products placed into the stream of commerce in California], you must submit a Priority Product notification to DTSC within 60 days after the effective date of the regulation establishing a product-chemical combination as a final Priority Product. Subsequently, you may be required to perform an Alternatives Analysis—a process that evaluates toxicity and other information concerning the Chemicals of Concern in the product, and compares those data to alternative chemicals or product redesigns that may make that product safer.

DTSC will review Alternative Analysis reports and determine a regulatory course of action, if needed. Responsible entities must comply with the requirements of the Department’s regulatory response. Manufacturers have the principal duty to comply with the regulations. Other responsible entities may include importers, assemblers, or retailers of a Priority Product.

If the manufacturer does not comply, responsibility for compliance falls to the importer. An importer, retailer, or assembler must comply with the requirements applicable to a responsible entity only if the manufacturer has failed to comply and DTSC has notified the importer, retailer, or assembler by posting the information on the Failure to Comply List.

If the manufacturer of a Priority Product fails to comply with the requirements to submit a notification or complete an Alternatives Analysis, the importers must cease to place the product in the stream of commerce in California, and retailers or assemblers must cease ordering the Priority Product and submit a Cease Ordering Notification to the Department.

HOW AND WHEN DO I NOTIFY DTSC IF MY PRODUCT IS A PRIORITY PRODUCT?

The clock will start when the regulations establishing a Priority Product take effect (after rulemaking per the APA is complete). Notify DTSC within 60 days if your product-chemical combination has been adopted as a Priority Product. If a product-chemical combination is introduced into the stream of commerce in California after it has been listed as a Priority Product, the responsible entity must submit a Priority Product notification to DTSC within 60 days of the product’s introduction.

WHAT DOES THE PRIORITY PRODUCT NOTIFICATION INCLUDE? WHAT IS THE FORMAT?

DTSC is developing an online system for electronic submittals of Priority Product Notifications. The Priority Product Notification includes:

  1. Name and contact information of the responsible entity and whether the responsible entity is the product manufacturer, importer, assembler, or retailer.
  2. The type, brand name, and product name of the Priority Product. This includes a description of known products where the Priority Product is used as a component of one or more assembled products.
  3. If applicable, the name of and contact information for the entity that will be complying with the Safer Consumer Product requirements on behalf of or instead of the responsible entity.
  4. If applicable, an indication that a notification is being submitted stating either that the Chemical(s) of Concern is present in the manufacturer’s Priority Product only as contaminants or at very low concentrations; that the manufacturer intends to remove the Chemical of Concern from the product; or that the manufacturer no longer intends to sell the product in California.

The CPSC issues Final Rule for Carriages and Strollers

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The CPSC issued a Final Rule for Carriages and Strollers on March 10, 2014, which will become effective on September 10, 2015. On May 20, 2013 the CPSC issued a notice of proposed rulemaking (NPR) for carriages and strollers which proposed to incorporate by reference the voluntary standard, ASTM F833-13, “Standard Consumer Safety Performance Specification for Carriages and Strollers”, with certain changes to strengthen the voluntary ASTM standard.

The Final Rule incorporates by reference most of the recent voluntary standard, ASTM F833-13b, with a modification to address head entrapment hazards associated with multi-positional adjustable grab bars. In the NPR, the CPSC proposed a performance requirement and test method to address scissoring, shearing and pinching hazards associated with 2D fold strollers, which were already required for 3D fold strollers. For the testing of a 2D fold stroller and convertible carriage/strollers, the CPSC proposed a test within an access zone based on the incident data and the anthropocentric dimensions of the child occupant. The CPSC also proposed a test method to test the frame folding action of a stroller while the stroller is moved from the completely folded to the completely erect position and from the partially folded position to the fully erect and locked position (travel distance calculation).

The definition of a “2D fold stroller” that is found within ASTM F833-13b is a stroller that folds the handlebars and leg tubes only in front-to-back (or back-to-front) direction. To address the 2D fold stroller hazards, ASTM F833-13b requires the frame folding action of a 2D fold stroller and convertible carriage/stroller to be designed and constructed to prevent injury from scissoring, shearing, or pinching. Units with a removable seat that prevents the complete folding of the unit while still attached are exempt from this requirement.

The CPSC is requiring an additional modification to the passive containment/foot opening test method in ASTM F833-13b, to address head entrapment hazards associated with multi-positional adjustable grab bars. Specifically, the test method for passive containment/foot opening is revised as follows:

(a) 7.12.1 Secure the front wheels of the unit in their normal standing position so that the unit cannot move forward. Attach the tray(s) or grab bar(s) in the position that creates the bounded opening(s). Position any adjustable features (that is, grab bar, calf supports, foot rests, etc.) that may affect the bounded opening(s) to create an opening(s) size that is most likely to cause failure; and

(b) 7.12.3 If necessary, reattach/re-position tray(s) grab bar(s), then perform the torso probe test per 7.12.4. Position any adjustable features (that is, grab bar, calf supports, foot rests, etc.) that may affect the bounded opening(s), to create the opening(s) size that is most likely to cause failure.

The Administrative Procedure Act (APA) generally requires that the effective date of the rule be at least 30 days after publication of the final rule [ 5 U.S.C. 553(d)].  The safety standard for carriages and strollers will become effective 18 months after publication of a final rule in the Federal Register.

CPSC Voluntary Remedial Actions and Guidelines Final Rule

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CPSC Voluntary Recall The Consumer Product Safety Commission (CPSC) has proposed amendments to its Voluntary Remedial Actions and Guidelines that would make corrective action plans for product recalls legally binding, which is a departure from over forty years of working with manufacturers on recalls and could impact liability risks for companies.

Previously if a manufacturer, distributor or retailer reported to the CPSC a consumer product that had violated a standard or created a substantial risk of injury or death to the public, they were allowed to negotiate and create a voluntary “corrective action plan” (CAP) that would “fast track” recall remediation measures and notify consumers.

Unlike mandatory CAP’s, voluntary CAP’s are not legally binding which allows companies to diverge from the CAP and in some cases not accomplish the CPSC’s desired results of the recall. In September of this year, the CPSC proposed a rulemaking to the standardized recall agreements based on studies which showed that product recalls seldom were totally successful.

In November of this year the Commission approved by a margin of 3 – 1, the proposed rulemaking to standardized recall provisions and make voluntary recall agreements legally binding. This means that the CPSC will have greater input into what will be required in the voluntary CAP’s which in some cases could include the creation of mandatory compliance systems within the company that would address issues arising out of the product recall.

For example, the CPSC could impose enhancements to the company’s existing compliance policies by ensuring that its ongoing program contains written standards and policies, a mechanism for confidential employee reporting of compliance related questions or concerns, and appropriate communication of company compliance policies to all employees through training programs.

The new rule would give the requirements within the voluntary CAP teeth by allowing the court system to get involved when violations occur. While Commissioner Robert Adler, who proposed the new rule, admitted that the violation of corrective action plans has not been a “big problem,” he explained that even if one corrective action plan is violated, “that [violation] may leave hundreds and hundreds and hundreds of thousands of consumers at risk of a defective product.”

Health Canada proposes amendments to Canadian Playpen Regulations

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playpen-parcsHealth Canada released a public consultation proposal to amend the Playpens Regulations under the Canadian Consumer Product Safety Act on April 16, 2013.  Comments may be submitted until June 29, 2013.

Health Canada seeks to enhance and align the current Regulation with existing requirements under the Canadian Cribs, Cradles and Bassinets Regulations and with certain requirements with international standards and U.S. requirements for play yards, playpens and bassinets/cradles.  The proposed changes include;

  • Clarification of the definition “playpen” to eliminate existing confusion between playpens and portable cribs.
  • Revising technical requirements for the gap between the floor pad and the side of the playpen, the side height of playpens and the side height requirements for sleep accessories
  • Amending the test method for assessing mesh opening sizes to align with international play yard standards
  • Establishing performance requirements relating to playpen’s latching and locking mechanisms
  • Prohibiting any protrusion attachment or mechanism capable of entangling the occupant’s clothing or other object worn by the occupant to be located above the upper surface of the floor of the playpen
  • Including a maximum rock or swing angle for sleep accessories that rock or swing and requiring that such sleep accessories incorporate a means of self-leveling
  • Introducing performance requirements and test methods to assess sleep accessories missing key structural elements intended to avoid their improper assembly
  • Providing for a transitional period of six (6) months for the implementation of the new requirements to allow industry time to re-design, test and supply new product models meeting the amended regulatory requirements

Kolcraft Agrees to $400,000 Civil Penalty, Significant Internal Compliance Improvements for Failure to Report Defective Play Yards

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WASHINGTON, D.C. – The U.S. Consumer Product Safety Commission (CPSC) announced today that Kolcraft Enterprises Inc., of Chicago, has agreed to pay a civil penalty in the amount of $400,000.

The penalty agreement has been accepted provisionally by the Commission in a 2-1 vote. Commissioner Nord voted to provisionally accept the agreement as originally drafted. Chairman Tenenbaum and Commissioner Adler voted to provisionally accept the agreement with amendments which were included in the final agreement.

In addition to paying a monetary penalty, Kolcraft agrees to implement robust changes to its internal control and compliance systems. Specifically, Kolcraft agrees to:

  • maintain and enforce a system of internal controls and procedures to ensure that the company promptly and accurately reports required information about its products to CPSC;
  • give CPSC staff written documentation of its improvements, processes, and controls related to its reporting procedures upon request;
  • and establish an effective program to ensure it remains in compliance with safety statutes and regulations enforced by CPSC.

 

Kolcraft agrees that, at a minimum, its compliance program must provide its employees with written standards and policies, compliance training, and the means to report compliance-related concerns confidentially.

The settlement resolves CPSC staff allegations that the firm knowingly failed to report to CPSC immediately, as required by federal law, a defect involving Kolcraft Travelin’ Tot play yards and play yards manufactured by Kolcraft for Carter’s, Sesame Street, Jeep, Contours, Care Bare, and Eric Carle. The play yards were sold nationwide from January 2000 through January 2009 for between $50 and $160. The side rail of the play yards can fail to latch properly and can unlatch unexpectedly when a child pushes against it, posing a fall hazard to children.

In August 2005, failure analysis experts hired by the firm identified the potential for false latching. In 2006, the firm made prospective improvements to the warning labels, instruction sheets, and the side-rail latch to eliminate false latching in future production of the play yards.

From about January 2000 through July 2009, Kolcraft received about 350 reports of the play yard collapsing, resulting in 21 injuries to young children, including bumps, scrapes, bruises, and one concussion.

Kolcraft did not report the information regarding the play yards to CPSC until January 2009.

In July 2009, Kolcraft and CPSC announced the recall of one million play yards.

Federal law requires manufacturers, distributors, and retailers to report to CPSC immediately (within 24 hours) after obtaining information reasonably supporting the conclusion that a product contains a defect which could create a substantial product hazard, creates an unreasonable risk of serious injury or death, or fails to comply with any consumer product safety rule or any other rule, regulation, standard, or ban enforced by CPSC.

In agreeing to the settlement, Kolcraft denies CPSC staff allegations that its play yards contained a defect which could create a substantial product hazard, or that it knowingly violated the reporting requirements of the Consumer Product Safety Act. Pursuant to the Consumer Product Safety Act, CPSC must consider the appropriateness of the penalty in relation to the size of the business of the person charged, including how to address undue adverse economic impacts on small businesses. Kolcraft is a small business as set forth in the Small Business Administration guidelines regarding size of business.