PA 08-106—sHB 5650

Select Committee on Children

General Law Committee

Appropriations Committee

Judiciary Committee

AN ACT CONCERNING CHILD PRODUCT SAFETY

SUMMARY: This act establishes limits for lead in children's products by amending the State Child Protection Act, the state's counterpart to the Federal Hazardous Substances Act (FHSA). With certain exceptions, it makes children's products that fail to comply with the limits banned hazardous substances. It also prohibits the sale of toys or other articles marketed for children under age 16 that contain asbestos.

The act requires retailers and other businesses selling a banned hazardous substance to complete a certificate of disposition to account for its disposal. It requires the Department of Consumer Protection (DCP) commissioner, who administers the State Child Protection Act, to post on the department's website a list of toys and other articles intended for use by children that are banned hazardous substances. The commissioner must also consult with the departments of Public Health (DPH) and Environmental Protection (DEP) to compile a list of other toxic substances and safer alternatives. The commissioner may adopt regulations requiring certain consumer products to have warning labels if they bear lead-containing paint.

The act also:

1. increases related criminal and civil penalties;

2. requires stores to post notices when DCP designates an article as a banned hazardous substance, making failure to do so an unfair trade practice; and

3. makes failure to allow a DCP inspector or investigator to inspect an establishment where hazardous substances are manufactured or to obtain a sample an unfair trade practice.

The act authorizes the DEP commissioner to take part in an interstate clearinghouse to classify chemicals according to the risks they pose.

Finally, the act makes technical changes.

PA 08-122 amends this act.

EFFECTIVE DATE: October 1, 2008, except for the provisions concerning the certificate of disposition and the interstate clearinghouse, which are effective upon passage.

LEAD LIMITS FOR CHILDREN'S PRODUCTS

The State Child Protection Act prohibits placing a banned hazardous substance in the stream of commerce. Beginning July 1, 2009, this act establishes limits for lead in children's products. Products that fail to comply with these limits are banned hazardous substances and thus subject to the prohibition. The act defines “children's product” as a consumer product designed or intended primarily for children under age 12, including toys, jewelry, decorative objects, clothing, candy, food, dietary supplements or other chewable items, furniture, or other articles used by or intended to be used by children.

Under the act, a children's product is considered a banned hazardous substance if:

1. (a) from July 1, 2009 to June 30, 2011, any part of the product contains more than 300 parts per million (ppm) total lead content by weight and (b) on and after July 1, 2011, any part of the product contains more than 100 ppm total lead content by weight;

2. on and after July 1, 2009, it bears lead-containing paint with more than 90 ppm total lead content by weight; or

3. on and after July 1, 2009, it bears lead-containing paint containing more than . 009 milligrams of lead per centimeter squared.

The act authorizes the DCP commissioner to adopt regulations on and after July 1, 2011, if he determines that is it feasible for a children's product to comply with a stricter standard than 100 ppm total lead content by weight for any part of the product. Under these regulations, the commissioner may require a children's product to comply with a limit as low as 40 ppm total lead content by weight.

Prior law did not establish limits for lead in children's products. However, the DCP commissioner has, by regulation, declared lead-containing paints with 0. 06% lead by weight or more (600 ppm) to be banned hazardous substances (Conn. Agencies Regs. 21a-336-1).

The act defines “lead-containing paint” as paint or other similar surface coating materials containing detectable lead or lead compounds. “Paint and other similar surface-coating materials” means a fluid, semi-fluid, or other material applied to a metal, wood, stone, paper, leather, cloth, plastic, or other surface. It does not include printing inks, materials that become part of the substrate (e. g. , pigment in a plastic article), or materials that are bonded to the substrate (e. g. , through electroplating or ceramic glazing).

Exceptions

Inaccessible Components. The act creates an exception for a children's product containing a component that exceeds the act's limits if the component (1) is not accessible to a child because it is enclosed by a covering or casing and (2) will not become physically exposed through normal and reasonably foreseeable use and abuse of the product. Under the act, paint, coatings, or electroplating cannot be considered barriers that would make the substrate inaccessible to a child through normal and reasonably foreseeable use and abuse.

Electronic Devices. The act creates a temporary exception for children's products that are electronic devices, including batteries, if the DCP commissioner determines that it is not feasible for such products to meet the act's standards by July 1, 2009. It requires the commissioner, through regulation, to (1) set interim standards to reduce the exposure of, and accessibility to, lead in these electronic devices and (2) establish a schedule for the devices to comply fully with the act's stricter standards applicable to all other children's products.

PROHIBITED ACTS

The act prohibits introducing or delivering for introduction into commerce any toy or other article for sale in Connecticut containing asbestos and marketed for use by children under age 16.

The act also prohibits manufacturing; distributing; selling at wholesale or retail; or contracting to sell or resell, lease, sublet, or otherwise place in the stream of commerce any children's product that:

1. is a banned hazardous substance under state law or FHSA;

2. is the subject of voluntary or mandatory corrective action taken under the direction of, or in cooperation with, a federal agency but the defect in the product has not been corrected; or

3. does not otherwise conform to applicable consumer product safety standards under the State Child Protection Act, any similar state law, or any similar federal laws or regulations.

DISPOSITION CERTIFICATE

By law, manufacturers, distributors, and retailers must repurchase an article they sell that is a banned hazardous substance, whether or not the article was banned at the time of sale. The act requires retailers and other businesses in the state selling a banned hazardous substance to account for its disposal.

Under the act, the DCP commissioner must develop a certificate of disposition by October 1, 2008 for retailers and wholesalers prohibited from selling or placing in the stream of commerce any children's product that is subject to a recall or voluntary corrective action. The certificate must require these retailers and wholesalers to (1) specify the make, model, type, quantity, and final disposition of the affected children's products and (2) sign an affidavit verifying the authenticity of the information. The certificate must contain any other information the commissioner requires.

If a retailer or wholesaler receives notification or information that a children's product has been recalled or subject to voluntary corrective action, the act requires it to inspect its premises and immediately dispose of all such products in its possession. Retailers and wholesalers must complete the certificate of disposition within seven calendar days after receiving the notice or information concerning a recall or voluntary corrective action. They must maintain signed and dated certification forms, which are subject to inspection by the commissioner or his designated agents, for at least three years.

The act subjects retailers or wholesalers to the penalties of the State Child Protection Act, as amended, if they fail to (1) dispose of products properly, (2) complete the certificate of disposition, or (3) maintain certification forms.

LISTS

Banned Children's Products Internet List

The act requires, rather than allows, the DCP commissioner to compile a list of toys and other articles that are intended for use by children and that are banned hazardous substances. It additionally requires the commissioner to post the list in a conspicuous place on DCP's website. The list must be publicly accessible and searchable.

Other Toxic Substances List

The act also requires the DCP commissioner, in consultation with the commissioners of DPH and DEP, to compile and amend from time to time, a list of other toxic substances and the recommended maximum amount that may be present in children's products. The DCP commissioner must establish and update a corresponding list of safer alternatives to the toxic substances.

WARNING LABELS FOR CERTAIN CONSUMER PRODUCTS

The act defines “consumer product” as any article that is used primarily for personal, family, or household purposes. The act allows the DCP commissioner to adopt regulations requiring certain consumer products to carry warning labels.

Under the act, the commissioner may identify consumer products with which a child may reasonably or foreseeably come into contact and that bear lead-containing paint and, on a case-by-case basis, require them to carry such a warning label. The act prohibits anyone engaged in commerce, including individuals, firms, and businesses, from having, offering for sale, selling, or giving away any consumer product identified in the regulations that bears lead-containing paint, unless the product has a warning label required by federal regulation or the state warning label.

If federal regulations do not prescribe a warning label, the act specifies how the state-required warning label must read. For products with lead-containing paint, the warning label must read:

“WARNING—CONTAINS LEAD. DRIED FILM OF THIS SURFACE MAY BE HARMFUL IF EATEN OR CHEWED. See Other Cautions on (Side or Back) Panel. Do not apply on toys, or other children's articles, furniture, or interior or exterior exposed surfaces or any residential building or facility that may be occupied or used by children. KEEP OUT OF THE REACH OF CHILDREN.

For products with a form of lead other than lead-containing paint, the warning label must read:

“WARNING CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD. KEEP OUT OF THE REACH OF CHILDREN.

Exemptions

The act exempts from its warning label provision (1) children's products and (2) consumer products with lead-containing components that are not accessible to children because they are not physically exposed due to a covering or casing and they will not become physically exposed through normal and reasonably foreseeable use and abuse.

UNFAIR TRADE PRACTICES

Notice Requirements

The act authorizes the DCP commissioner to require retail stores to post notices informing the general public when DCP adopts a regulation designating an article a banned hazardous substance. Notices must be posted in a location visible to the general public and remain up for a period of time the department specifies.

Inspections and Obtaining Samples

By law, DCP inspectors and investigators, upon presenting appropriate credentials, must be allowed to:

1. enter, at reasonable times, any factory, warehouse, or establishment in which hazardous substances are manufactured or held for introduction into commerce, or held after introduction into commerce;

2. enter, at reasonable times, any vehicle used to transport or hold hazardous substances;

3. inspect, at reasonable times, within reasonable limits, and in a reasonable manner any factory, warehouse, establishment, or vehicle, and all equipment, finished and unfinished materials, and labeling; and

4. obtain samples of such materials, packages, or labeling.

Violations

The act makes it a violation of the Connecticut Unfair Trade Practices Act (CUTPA) to fail to (1) follow the posting requirement or (2) permit an inspector or investigator to carry out his or her duties as described above. CUTPA generally allows the DCP commissioner to investigate complaints, issue cease and desist orders, order restitution, enter into consent agreements, and ask the attorney general to initiate legal proceedings. It also allows individuals to file civil lawsuits. Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorney's fees; and impose civil penalties of up to $5,000 for willful violations and $25,000 for restraining order violations.

STATE CHILD PROTECTION ACT PENALTIES

Under prior law, violations of the State Child Protection Act were either (1) class C misdemeanors, punishable by imprisonment for up to three months, fines of up to $500, or both or (2) for repeat offenses or those committed with the intent to defraud or mislead, unclassified misdemeanors punishable by imprisonment for up to one year, fines of up to $3,000, or both.

Under the act, the former become class B misdemeanors, punishable by imprisonment for up to six months, fines of up to $1,000, or both. And the maximum fine for the unclassified misdemeanor offense increases to $5,000.

The act also authorizes the DCP commissioner to levy a civil penalty of up to $100 for a violation of the State Child Protection Act, except for a violation that involves removing or disposing of tags affixed to embargoed items since the law already authorizes DCP to levy civil penalties of up to $500 per item for such a violation. Under the act, each violation, and each day it continues, constitutes a separate and distinct offense. The act requires the department to give alleged violators notice and a hearing and directs that these penalties be deposited into DCP's consumer protection enforcement account. It also requires that fines for tagging violations be deposited in that account.

INTERSTATE CLEARINGHOUSE

The act authorizes the DEP commissioner, within available appropriations, to participate in an interstate clearinghouse to (1) classify chemicals used in commercial products according to whether they are of high, moderate, low, or unknown concern and (2) organize and manage available data on chemicals. The data must include information on their use, hazards, and environmental concerns. The commissioner, through the clearinghouse, may also (1) produce and inventory information on (a) safer alternatives to specific chemical uses and (b) model policies and programs related to these alternatives and (2) provide technical assistance to businesses and consumers regarding safer chemical alternatives. She may participate in other related activities.

BACKGROUND

Federal Hazardous Substances Act

FHSA is one of five federal laws that the Consumer Product Safety Commission (CPSC) administers. It authorizes the CPSC to identify hazardous and potentially hazardous substances, ban certain toys and articles marketed for use by children, require certain substances and toys to bear cautionary labeling, and set conditions and standards for that labeling. It authorizes states to adopt identical requirements, thereby gaining enforcement authority, and supplement federal law in areas the CPSC does not regulate. States are prohibited from adopting different requirements protecting against the same risk of illness or injury already regulated by CPSC action.

Parts per Million and Milligrams of Lead per Centimeter Squared

There are two methods for measuring lead in paint. One is called “total lead” and involves traditional laboratory testing. The paint is weighed and dissolved in acid to determine how much lead is present. The result is rendered in milligrams of lead per milligram of paint, expressed as ppm. The current CPSC paint standard is 600 ppm.

The alternative is an X-Ray Fluorescence (XRF) analyzer. XRF analyzers emit X-rays through a small window and measure the amount reflected back, identifying how much lead is present immediately below the window. The result is rendered in milligrams or micrograms per square centimeter.

Normal and Reasonably Foreseeable Use and Abuse

CPSC regulation establishes test methods for simulating use and abuse of toys and other articles intended for use by children under age eight. The regulations describe specific tests for simulating normal use of toys and other articles intended for use by children, as well as the reasonably foreseeable damage or abuse to which the articles may be subjected. The tests are intended to expose potential hazards that would result from normal use or reasonably foreseeable damage or abuse of the articles (16 CFR 1500. 50 to 1500. 53).

Related Act

PA 08-122 amends this act by (1) requiring DCP to implement the act's requirements within available appropriations; (2) exempting certain drugs from the recall provision; and (3) revising the list of toxic substances that must be compiled by the commissioners of consumer protection, environmental protection, and public health.

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