CPSC moves to ban additional phthalates from use in children's products

January 22, 2015

Products Alert

Author(s): Zackary L. Stillings

Recently, the Consumer Product Safety Commission (“CPSC”) in a 3–2 vote narrowly approved proposed rulemaking that would permanently ban the use of five more phthalates in children’s toys and child-care products. The proposed rule would expand on a statutory ban that has been in effect since the passage of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”).  Interested parties have until March 16, 2015 to comment.

When Congress passed the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), it permanently banned three phthalates—DEHP, DBP and BBP—in concentrations greater than 0.1 percent in children’s toys and child care articles. The CPSIA defines “children’s toys” as “consumer product[s] designed or intended by the manufacturer for [] child[ren] . . . 12 years of age or younger for use . . . when [] child[ren] play[],” and defines “child care articles” as “consumer products that are designed or intended by the manufacturer for a child who is 3 years old or younger, to facilitate sleeping or feeding, or to help a child who is sucking or teething.” The CPSIA also placed an interim ban on the use of DINP, DIDP and DNOP in toys that can be placed in a child’s mouth or child care articles in an amount greater than 0.1 percent. The concern was that phthalates can act as endocrine disruptors. The CPSIA also required the  Consumer Product Safety Commission (“CPSC”) to undertake further studies regarding phthalates used in plasticizing children’s care items and toys, particularly with respect to those phthalates subject to the interim ban. Based on this statutory directive, the CPSC convened the Chronic Hazard Advisory Panel (“CHAP”), whose report, issued this past summer, formed the basis of the CPSC’s recently proposed rule, despite receiving significant criticism. Prominent among those criticizing the report was the American Chemistry Counsel, who condemned the report as relying on outdated and incomplete information. See http://www.americanchemistry.com/Media/PressReleasesTranscripts/ACC-news-releases/ACC-Challenges-the-Conclusions-of-the-CPSC-CHAP-Report-on-Phthalates-Based-on-a-Flawed-CPSC-Process.html.

The CHAP report recommended that CPSC make permanent the interim ban on one phthalate (DINP) and recommended imposing a permanent ban on four phthalates (DIBP, DPENP, DHEXP and DCHP). The CHAP report also recommended imposing an interim ban on one phthalate (DIOP). The report concluded that exposure to the five phthalates it sought to permanently ban can cumulatively contribute to the risk of disruption of male reproductive development. With one exception, the Commission followed the CHAP report in its proposed rule. The proposed rule, as published, seeks to permanently ban the phthalates DIBP, DPENP, DHEXP, DCHP and DINP. The CPSC has declined, however, to ban DIOP on an interim basis. If the rule becomes final, it would be one of the first to regulate the use of a chemical based upon a cumulative risk assessment, which could have significant impacts on future risk determinations for consumer products.

Industry members seeking to comment on the proposed rule must do so by March 16, 2015. After that date, the CPSC will aggregate the comments it receives, and take them into consideration in forming the final rule. The final rule will take effect 180 days after publication in the Federal Register.

The proposed rule may be found at: https://www.federalregister.gov/articles/2014/12/30/2014-29967/prohibition-of-childrens-toys-and-child-care-articles-containing-specified-phthalates.

Comments to the CPSC regarding the rule may be submitted at: http://www.regulations.gov/.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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