Products Liability Law Daily CPSC issues proposed rule on third-party testing of engineered wood products
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Friday, October 13, 2017

CPSC issues proposed rule on third-party testing of engineered wood products

By Susan Engstrom

The Consumer Product Safety Commission (CPSC) has proposed a rule under which certain untreated and unfinished engineered wood products (EWPs)—specifically, particleboard, hardwood plywood, and medium-density fiberboard made from virgin wood or pre-consumer waste wood—would not require third-party testing for compliance with the agency’s requirements for lead, ASTM F963 elements, or phthalates for children’s products, children’s toys, and child care articles. Comments are due by December 27, 2017 (CPSC Notice of Proposed Rulemaking82 FR 47645, October 13, 2017).

Section 101 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) provides that: (1) no accessible part of a children’s product may contain more than 100 parts per million (ppm) lead content; and (2) paint or other surface coatings on children’s products and furniture intended for consumer use may not contain lead in concentrations greater than 90 ppm. Section 106 of the CPSIA states that the provisions of ASTM International, Consumer Safety Specifications for Toy Safety (ASTM F963), shall be considered to be consumer product safety standards issued by the CPSC. Section 4.3.5 of ASTM F963 requires that surface coating materials and accessible substrates of children’s toys that can be sucked, mouthed, or ingested must comply with the solubility limits of the following eight elements: antimony, arsenic, barium, cadmium, chromium, lead, mercury, and selenium. Finally, Section 108 of the CPSIA prohibits children’s toys and child care articles from containing six specified phthalates in concentrations above 0.1 percent.

Children’s products, toys, and child care articles subject to the above content limits require third-party testing before the manufacturer can issue a Children’s Product Certificate (CPC) and enter the products into commerce. In response to statutory direction, the CPSC has investigated approaches that would reduce the burden of third-party testing while also assuring compliance with the agency’s requirements. As part of that endeavor, the CPSC has considered whether certain materials used in children’s products, toys, and child care articles—such as EWPs—would not require third-party testing. Based on the staff’s review of research conducted by the Toxicology Excellence for Risk Assessment (TERA), the Commission is proposing a determination that there is a high degree of assurance that the three specified EWPs in an untreated and unfinished state made from virgin or pre-consumer wood waste will not contain lead, the ASTM F963 elements, or the specified phthalates in excess of allowable levels. This determination would mean that for the specified EWPs, third-party testing would not be required to assure compliance with Sections 101, 106, and 108 of the CPSIA.

The proposed rule would create a new Part 1252 for "Children’s Products, Children’s Toys, and Child Care Articles: Determinations Regarding Lead, ASTM F963 Elements, and Phthalates for Engineered Wood Products." The proposed rule would determine that the specified three EWPs do not contain lead in concentrations exceeding 100 ppm, any of the ASTM F963 elements in excess of specified concentrations, and any of the statutorily prohibited phthalates (DEHP, DBP, BBP, DINP, DIDP, DnOP) in concentrations greater than 0.1 percent.

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