Products Liability Law Daily CPSC issues proposed rule on third party testing for compliance with phthalate prohibitions
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Wednesday, August 17, 2016

CPSC issues proposed rule on third party testing for compliance with phthalate prohibitions

By Colleen Kave, J.D.

A proposed rule that would bar certain plastics with specified additives from containing the specified phthalates prohibited in children’s toys and child care articles has been proposed by the Consumer Product Safety Commission (CPSC). Based on these determinations, the specified plastics with specified additives would not require third party testing for compliance with the mandatory phthalates prohibitions on children’s toys and child care articles. Comments are due by October 31, 2016 (CPSC Notice of Proposed Rulemaking81 FR 54754, August 17, 2016).

Section 108 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) prohibits children’s toys and child care articles that contain six specified phthalates in concentrations above 0.1 percent in "accessible plasticized component parts and other component parts made of materials that may contain phthalates." Children’s toys and child care articles subject to the content limits in section 108 of the CPSIA require third party testing for compliance with the phthalate content limits before the manufacturer can issue a Children’s Product Certificate (CPC) and enter the children’s toys or child care articles into commerce.

In response to the third party testing requirement, CPSC has investigated approaches that would reduce the burden of third party testing while also assuring compliance with CPSC requirements. As part of that endeavor, the Commission has considered whether certain materials used in children’s toys and child care articles would not require third party testing. This proposed rule would create a new Part 1308 for "Prohibition of Children’s Toys and Child Care Articles Containing Specified Phthalates: Determinations Regarding Certain Plastics" which would determine that the specified four plastics (Polypropylene (PP), Polyethylene (PE), High-Impact Polystyrene (HIPS), and Acrylonitrile Butadiene Styrene (ABS)) and accompanying additives do not contain the statutorily prohibited phthalates in concentrations above 0.1 percent, and thus, are not required to be third party tested to assure compliance with section 108 of the CPSIA. However, the proposed rule also states that accessible component parts of children’s toys and child care articles made with a plastic or additives not named in the rule are required to be third party tested, and that the rule’s determinations would only remove the obligation to have children’s toys and child care articles tested by a third party conformity assessment body. Regardless of any third party testing relief that the proposed rule would provide, the manufacturer or importer must still comply with the underlying phthalates content prohibitions in section 108 of the CPSIA.

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