The Consumer Product Safety Commission has continued to move forward with the implementation of various provisions included in the CPSIA. The most relevant developments since 1 May are summarised below.

Reminder: CPSIA Lead and Phthalate Limits Apply to Products in Inventory

Hong Kong and mainland Chinese exporters are reminded that the new statutory limits for lead and phthalate content in certain children's products entered into force on 10 February and apply to merchandise sold on or after that date, regardless of whether the merchandise was produced prior to 10 February. Effective from that date, any product designed or intended primarily for children 12 years of age or younger is banned if it contains more than 600 parts per million total lead content by weight for any part of the product. A lead content limit of 300 ppm is scheduled to enter into force on 14 August and will apply to all covered products sold on or after that date, including products in inventory. An even more stringent standard of 100 ppm will be implemented on 14 August 2011 unless the CPSC determines that this standard is not feasible for a product or product category. In practical terms, the application of these standards to inventory means that U.S. buyers are most likely already requiring manufacturers to comply with the 300 ppm standard given that it will enter into force in less than three months. In fact, some retailers began requiring their suppliers to comply with the 300 ppm standard months ago.

The CPSIA includes a separate provision that requires the current lead content standard for surface paint in furniture, toys and other children's products to be reduced from a maximum of 600 ppm lead by weight of the total non-volatile content of the paint or the weight of the dried paint film to a maximum of 90 ppm percent lead by weight, effective 14 August. The CPSC is required to revise this limit downward every five years if it determines that it is technologically feasible to do so. The new 90 ppm limit also applies to products in inventory as of 14 August, which means that retailers are probably already demanding compliance with this requirement as well.

The sale, distribution and importation of children's toys and childcare articles containing di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP) or benzyl butyl phthalate (BBP) in concentrations exceeding 0.1 percent is also banned effective from 10 February, and this ban applies to products in inventory as well. In addition, the sale, distribution and importation of children's toys that can be placed in a child's mouth and childcare articles is banned on an interim basis until a final rule is promulgated if they contain diisononyl phthalate (DINP), diisodecyl phthalate (DIDP) or di-n-octyl phthalate (DnOP) in concentrations exceeding 0.1 percent. The term "children's toy" is defined in the CPSIA as "a consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays," while the term "childcare article" is defined as "a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething."

CPSC Officially Suspends Enforcement of Lead Limits for Children's ATVs

The CPSC issued a notice in the Federal Register on 12 May formally suspending until 1 May 2011 its enforcement of the CPSIA lead content limits with respect to certain component parts and materials of youth all-terrain vehicles, off-road motorcycles and snowmobiles. The stay of enforcement covers battery terminals containing up to 100 percent lead and components made with metal alloys, including steel containing up to 0.35 percent lead, aluminium with up to 0.4 percent lead and copper with up to four percent lead, as well as the vehicles that contain those parts and components. It will apply to all vehicles manufactured through 30 April 2011 and will remain in effect for the life of those vehicles. The stay will also apply to any metal part sold separately as a replacement for one of the parts described above provided that it does not have a higher lead content than the parts originally installed.

Every manufacturer (which can include a distributor where appropriate) covered by the stay must submit a report to the CPSC by 11 July identifying each model of covered vehicles it has produced between 1 March 2008 and 1 March 2009. For each such model, the manufacturer must give the production volume by calendar month and list each component part made of metal and accessible to children, the material specification for each part, and a measurement of the lead content of representative samples of each part in parts per million. The lead content measurement may be by x-ray fluorescence or the method posted on the CPSC Web site to test for lead in metal for certification purposes.

Manufacturers covered by the stay must present a comprehensive plan to the CPSC by 1 November 2009 describing how and when they intend to reduce the lead exposure from each covered part whose measured lead content exceeds 300 ppm. The plan must set forth the steps the manufacturer intends to take to limit children's lead exposure in future production and an estimated

schedule for achieving such reductions. The manufacturer should include a discussion of any adverse safety impacts that could result from accelerating the estimated schedule. If some vehicles

have been modified after 27 January 2009 to reduce the lead content of certain parts or to make certain parts inaccessible, the manufacturer should outline those changes in general terms and the dates such changes were made. Manufacturers who have submitted in a timely fashion both the initial report and the comprehensive plan and who need additional time to complete their plan prior to the expiration of the stay may file a request for an extension by 1 December 2010.

The Federal Register notice makes clear that the stay will not apply to vehicles that are stockpiled by the manufacturer. Vehicles will be deemed to be stockpiled if their production in the six-month period ending on 30 April 2011 exceeds by more than 15 percent the production of that model or its predecessor during the six-month period ending on 30 April 2010. The production of new models must not exceed by more than 15 percent the production of similar models by the same manufacturer. Stockpiling will be determined on a model-by-model basis.

The CPSC also notes that the stay will not limit its ability to take action with regard to these vehicles for other safety-related issues, including compliance with the American National Standard for Four Wheel All-Terrain Vehicles Equipment Configuration and performance requirements developed by the Specialty Vehicle Institute of America.

Effective Date for Tracking Labels on Children's Products Will Not Be Delayed

The CPSIA includes a provision that will require manufacturers to label children's products with permanent and distinguishable tracking information useful to facilitating a recall, effective from 14 August. The tracking label must contain certain basic information, including the source of the product, the date of manufacture and more detailed information on the manufacturing process such as a batch or run number. The National Association of Manufacturers and other associations had requested that the CPSC issue an emergency stay of this effective date but the CPSC voted on 13 May not to grant this petition, which means that this requirement will enter into force as scheduled. However, Commissioner Thomas Moore indicated that the CPSC will provide a good deal of flexibility in enforcing this requirement, does not intend to punish manufacturers for "an unwitting mistake" and will work with manufacturers who are diligently trying to comply with the statute. CPSC staff is currently analysing the more than 130 submissions received in response to a February request for comments and is expected to develop tracking label guidance for the CPSC to consider by June.

CPSC Denies Exclusion Petition for Bicycles but Delays Enforcement

The CPSC voted on 12 May to deny a petition from the Bicycle Product Suppliers Association seeking an exclusion from the CPSIA lead content limits for certain parts of youth bicycles, jogger strollers and bicycle trailers, specifically components made with metal alloys including steel containing up to 0.35 percent lead, aluminium with up to 0.4 percent lead and copper with up to four percent lead. Acting CPSC Chair Nancy Nord said in a statement that she and Commissioner Moore were "compelled to deny the petition because the language of the statute does not give us the flexibility to do otherwise, even though our staff does not believe that lead exposure from using bicycles and related products presents a risk that they would recommend the Commission regulate."

Nevertheless, as with youth ATVs, the two commissioners have directed CPSC staff to stay enforcement of the lead limit for all such products made through 30 April 2011. The CPSC is expected to publish a notice with the full details of this action shortly.

CPSC Endorses Revisions to Toy Safety Standard

On 17 February, the American Society for Testing and Materials International proposed to replace the current consumer product safety rule on toy safety - ASTM-International Standard F963-07e1 - with ASTM-International Standard F963-08. The CPSC, which has the option of accepting or objecting to the new version of this standard, recently voted to accept the standard with the exception of a revision to Section 4.27 regarding toy chests. The changes included in ASTM-International Standard F963-08 are briefly summarised below.

• Size restrictions for intact magnets and magnetic components have been tightened.
• F963-08 increases the relevant product age range for magnetic toy requirements to up to 14 years and prohibits any as-received hazardous magnets or magnetic components in toys. Hobby, craft and science kit-type items intended for children over eight years old may contain hazardous magnets and magnetic components if the product has a warning label.
• F963-08 does not require a warning label on toys with hazardous magnets or magnetic components intended for children between the ages of three and eight years because magnets and magnetic components that fit within the small parts cylinder are no longer allowed in toys intended for children up to 14 years (CPSC staff is somewhat concerned with this change but has nonetheless decided to accept it, although it has vowed to continue to work on this issue in the future).
• A more robust "use and abuse" test protocol has been established for toy components containing hazardous magnets, including a series of cyclic fatigue, impact, torque and tension tests followed by an additional cyclic fatigue test to ensure that magnets are sufficiently encapsulated in the toy.
• The scope of the requirement on folding mechanisms has been clarified.
• Locking devices are now required to automatically engage. To release the locking device, a minimum force of ten pounds is required or the locking device must have a double-action release mechanism.
• The section on impaction hazards has been elaborated to include requirements for nail, screw and bolt shaped toys that pose the risk of impaction to children up to 48 months old.
• The exemptions to the requirements for yo-yo balls have been elaborated to exclude tethered balls commonly used for sports training, like soccer (football) balls on elastic bands and baseballs on strings.
• A new section on jaw entrapment describes a probe that restricts the interior dimensions of handles and steering wheels to prevent children from inserting their lower jaw into a space that their teeth could catch on and entrap their jaw inside the handle or steering wheel.
• The requirements and test method for push/pull toys producing impulsive sounds have been slightly modified to harmonise them with the international toy standard, ISO 8124. This change involves using a different sound pressure weighting scale during measurement of the loudness of a toy.

F963-08 also removes certain requirements for toy chests (Section 4.27) and incorporates those requirements into a voluntary standard, F834. The CPSC has rejected this change, which means that these requirements will continue to be mandatory as allowed by Section 106(g) of the CPSIA. In addition, F963-08 includes flammability test methods in Section 4.2 and Annex 4 that were specifically excluded by Congress in the CPSIA. These portions of the new standard will therefore not become mandatory.

The CPSC advises that these changes, subject to the exceptions discussed above, will enter into force on 17 August.

President Nominates New CPSC Chair

President Obama announced on 5 May that he intends to nominate Inez Moore Tenenbaum as CPSC chair and Robert S. Adler as a new CPSC commissioner. While not directly related to the implementation of the CPSIA, this announcement is noteworthy for Hong Kong and mainland Chinese exporters because, if confirmed by Congress, the nominees will significantly shape the direction of the agency going forward and will play a critical role in a number of key CPSIA implementation matters. Tenenbaum and Adler would also be expected to significantly improve CPSC relations with Congress, which have been especially rocky under the leadership of Acting Chair Nancy Nord, a Republican.

A White House press release noted that while the CPSC has operated with only three commissioners for the last 15 years, later this summer the president will expand the commission to five members to revitalise the agency. If confirmed, Adler would fill one of those new posts. The White House also noted that the CPSC has been allocated US$107 million in the president's budget for fiscal year 2010, a 71 percent increase from FY 2007.

According to the press release, Tenenbaum served as South Carolina's state superintendent of education from 1998 to 2007, and at the end of her tenure Education Week ranked South Carolina number one in the country for the quality of its academic standards, assessment and accountability systems. The press release notes that Adler, currently a professor of legal studies at the University of North Carolina, has vast experience in consumer product safety issues. He has served as counsel on the House Energy and Commerce Committee and previously was an attorney-advisor to two CPSC commissioners.