January 9, 2008
REGULATING LEAD IN CHILDREN'S TOYS
By: Kristin Sullivan, Associate Analyst
You asked several questions concerning lead in children's toys. Specifically, you want a description of (1) federal laws regulating lead in children's toys, (2) current bills that would amend them, and (3) the relationship between federal and state laws on the issue. You also want a summary of the State Child Protection Act. Finally, you want information on what other states are doing to strengthen their enforcement capability.
The Consumer Product Safety Commission, an independent U.S. government agency, administers two federal laws that play a role in regulating lead, and all toxins, in children's toys: the Consumer Product Safety Act (CPSA) and the Federal Hazardous Substances Act (FHSA). Generally, the CPSA defines the commission's responsibilities, including its authority to (1) ban a product if there is no feasible standard to eliminate its risk or (2) pursue recalls for products that present a substantial hazard. The FHSA authorizes the commission to ban by regulation a hazardous household product (“hazardous substance”) if it is so hazardous that cautionary labeling would not protect the public.
During recent years companies like Mattel and Fisher-Price have recalled numerous toys due to excessive concentrations of lead. In response, members of Congress have proposed bills that, among other things, establish standards for all children's products, not just those
bearing lead-containing paint. H.R. 4040 appears to have the most support and has this sort of broad application. It phases in standards going from 0.06% (600 parts per million) to 0.01% (100 parts per million) lead by weight for all children's products.
The FHSA and CPSA both authorize states to adopt requirements identical to those under the federal law, but explicitly preempt them from regulating against the same risk posed by the same substance or consumer product. Connecticut adopted its State Child Protection Act under the FHSA. It makes the Department of Consumer Protection (DCP) commissioner its administrator and generally mirrors the federal law, requiring cautionary labeling on certain hazardous substances and allowing the commissioner to ban others. Under the act, manufacturers, distributors, and retailers must repurchase banned hazardous substances. Thus, when the commissioner bans a hazardous substance, he is effectually ordering its recall.
We found two states, California and Illinois, that have enacted consumer protection laws with stricter standards than the State Child Protection Act. They could serve as a model for Connecticut to strengthen its enforcement capability. Both ban certain products if they contain 0.06% lead by weight or more. California also bans certain other products containing 0.02% (200 parts per million) lead by weight or more. We found one state, Indiana, that is trying to strengthen its enforcement capability through legislation that requires retailers and distributors to confirm that their products do not exceed the 0.06% maximum, among other things.
The Consumer Product Safety Commission, an independent regulatory agency created in 1972, administers that the CPSA and the FHSA, among other laws. The CPSA (P.L. 92-573) establishes the Consumer Product Safety Commission and authorizes it to (1) develop standards to reduce or eliminate unreasonable risks of injury associated with consumer products, (2) ban products when there are no feasible standards, and (3) pursue recalls for products that present a substantial hazard.
The FHSA (P.L. 86-613) requires that certain hazardous substances bear cautionary labeling to alert consumers to the potential hazards that they present. Any product that is toxic, corrosive, or flammable, for example, requires labeling if it may cause substantial injury or illness during or as a result of customary handling, including reasonably foreseeable ingestion by children. The act gives the commission the authority to ban by regulation a hazardous substance if it is so hazardous that labeling would be inadequate to protect the public. In addition, any toy or other article containing a hazardous substance intended for use by children is also banned under the act if a child can gain access to the substance.
With the high incidence of toy recalls over the last several years, the Consumer Product Safety Commission has come under scrutiny because it has not specified a maximum allowable lead concentration for all children's products. Rather, it has banned (1) paint and similar surface-coating materials with 0.06% lead by weight or more (“lead-containing paint”) and (2) toys and other articles intended for use by children that bear lead-containing paint. According to Tom Neltner, Sierra Club consultant and past executive director of Improving Kids' Environment Coalition, this regulation's narrow construction is problematic because it applies only to a toy's coating and not the material of which it is composed. However, in 2006 the Sierra Club petitioned the Consumer Product Safety Commission to ban lead in toy jewelry. As a result, the commission recently began the rule-making process to ban children's toy jewelry containing 0.06% lead by weight or more.
Current Federal Proposals
In response to the frequent toy recalls, members of Congress have introduced legislation amending the FHSA, the CPSA, or both. We found roughly 20 current bills that establish lead standards for all children's products, not only those bearing lead-containing paint; broaden the Consumer Product Safety Commission's authority; or increase maximum civil penalties for noncompliance with one of the acts, among other things. H.R. 4040, The Consumer Product Safety Modernization Act, appears to be the most viable; the House of Representatives passed the bill unanimously on December 19, 2007 and it is now on the Senate calendar.
Significantly, H.R. 4040 deems any consumer product designed or intended primarily for children age 12 or younger (“children's product”) containing more than specified amounts of lead a banned hazardous substance. It phases in standards for all children's products as shown in Table 1.
Table 1: Lead Content Standards for Children's Products
Under H.R. 4040
180 days after enactment
0.06% lead by weight
Two years after enactment
0.03% lead by weight
Four years after enactment
0.01% lead by weight
If the Consumer Product Safety Commission determines, after notice and a hearing, that 0.01% is not a feasible standard for a particular product, it must require the lowest feasible standard.
For lead-containing paint, the bill reduces, from 0.06% to 0.009% lead by weight or more, the point at which it is a banned hazardous substance, effective 180 days after passage. It applies this standard to all children's products, not only “toys and other articles intended for use by children.”
In addition, H.R. 4040:
1. requires independent, third party-testing of children's products;
2. requires manufacturers, distributors, or retailers to give public notice of a substantial product hazard on their website and third party websites on which the product was for sale;
3. authorizes the commission to prohibit the export of, and makes it unlawful to sell, a product or substance that does not conform with applicable requirements; and
4. increases maximum civil penalties under the FHSA and CPSA.
Relationship between Federal and State Laws Regulating Lead
The FHSA and CPSA both authorize the Consumer Product Safety Commission to enforce their provisions at the federal level and states to enforce similar provisions at the state level by enacting complementary laws. Both permit states to (1) adopt requirements that are identical to those in the federal law, thereby gaining enforcement authority and (2) supplement the federal law in areas that the commission has not regulated. States are only prohibited from adopting different requirements protecting against the same risk of illness or injury already regulated by the Consumer Product Safety Commission action.
STATE CHILD PROTECTION ACT
In 1971, Connecticut adopted its counterpart to the FHSA, the State Child Protection Act, and modeled it largely on the federal act. The State Child Protection Act gives the state the authority to enforce safety standards and designates the DCP commissioner as the act's administrator. It authorizes the commissioner to, among other things, adopt regulations (1) requiring certain items to be labeled, (2) declaring certain substances to be hazardous, and (3) banning certain substances. The commissioner has, by regulation, declared lead-containing paints with 0.06% lead by weight or more to be banned hazardous substances (Conn. Agencies Regs. § 21a-336-1).
An article that the commissioner declares a banned hazardous substance must be repurchased by the retailer, distributor, or manufacturer. Thus, when the commissioner bans a substance, he is in effect ordering a recall.
The State Child Protection Act prohibits:
1. trafficking in misbranded or banned hazardous substances;
2. destroying or altering a label of a hazardous substance in a manner that makes it a misbranded or banned hazardous substance;
3. receiving in commerce a misbranded or banned hazardous substance;
4. falsely providing a guarantee that a hazardous substance is not misbranded or banned;
5. refusing to allow an inspection required by the act;
6. trafficking in hazardous substances contained in a reused food, drug, or cosmetic container or one that appears to be a food, drug, or cosmetic container;
7. using information obtained under the act that is a trade secret and entitled to protection to one's own advantage;
8. trafficking in any item containing asbestos that could reasonably be expected to be used in construction without a label stating that it contains asbestos and that asbestos may cause cancer when inhaled;
9. altering or removing an embargo tag; and
10. trafficking in toys marketed for children between the ages of three and seven that would be banned as a choking hazard if marketed to younger children that do not bear a conspicuous warning label that clearly and specifically communicates the danger (CGS § 21a-337).
Among the act's legal remedies, it authorizes the DCP commissioner to seek temporary or permanent restraining orders against violators (CGS § 21a-339).
Under the act, a substance is toxic if it has the capacity to produce personal injury or illness to a person through ingestion, inhalation, or absorption through any body surface. The act excludes from its jurisdiction radioactive substances (CGS § 21a-335(f)).
The act defines “hazardous substances” as those that are toxic; corrosive; irritants; strong sensitizers; flammable or combustible; or generate pressure through decomposition, heat, or other means if they cause substantial personal injury or illness as a result of customary or reasonably foreseeable handling or use. The term also includes (1) substances classified as hazardous by state regulations adopted under the act or by federal regulations adopted under the Federal Hazardous Substances Act; (2) radioactive substances the commissioner determines by regulation require labeling; and (3) toys and items marketed for children presenting an electrical, mechanical, or thermal hazard.
The act excludes from its jurisdiction poisons subject to economic regulation under the federal Fungicide and Rodenticide Act; articles regulated under the Connecticut Food, Drug and Cosmetic Act; fuel; and nuclear material subject to federal regulation (CGS § 21a-335(e)).
Misbranded Hazardous Substances
A hazardous substance, including a toy or other article intended for use by children, is misbranded if it does not have a prominent label in conspicuous and legible type in contrast by typography, layout, or color with other printed matter stating conspicuously:
1. the manufacturer's, packer's, distributor's, or seller's name and place of business;
2. the common or chemical name of the hazardous substance (or generic name if permitted by the DCP commissioner);
3. the signal word “Danger” on substances that are extremely flammable, corrosive, or highly toxic;
4. the signal word “Warning” or “Caution” on all other hazardous substances;
5. an affirmative statement of the principal hazard (such as “Combustible” or “Vapor Harmful”);
6. a precaution describing the actions to be followed or avoided; (7) first-aid instructions, if necessary;
7. the word “Poison” on substances that are highly toxic;
8. handling instructions on items requiring special care; and
9. the statement “Keep out of reach of children,” or adequate instructions to protect children if the article is not a banned hazardous substance (CGS § 21a-335(o)).
Banned Hazardous Substances
A hazardous substance is banned if it is:
1. a toy or other article intended for use by children that is or contains a hazardous substance;
2. a hazardous substance intended for household use and classified as a banned substance by state or federal law and is so hazardous that cautionary labeling is insufficient to protect the public's health and safety;
3. wood, coal, and solid fuel stoves offered for sale after July 1, 1985 that have not been tested in accordance with Underwriter's Laboratory Standard Number 1482; or
4. unvented room heaters offered for sale after July 1, 1985 that have not been tested in accordance with Underwriter's Laboratory Standard Number 647 for kerosene heaters and American National Standards Institute Standard Number Z21.11.2 for gas heaters.
Paint or similar surface-coating materials for consumer use with 0.06% lead by weight or more are also banned hazardous substances (Conn. Agencies Regs. § 21a-336-1).
The commissioner may exempt items like chemistry sets which include hazardous substances or necessarily present a electrical, mechanical, or thermal hazard if they are labeled with adequate directions and warnings for safe use and are intended for children who are mature enough to be reasonably expected to read and heed them (CGS § 21a-335(p)).
The act authorizes the DCP commissioner to adopt regulations to enforce its provisions. It requires the regulations to conform, as far as practicable, with federal regulations adopted under the FHSA (CGS § 21a-342).
The act also authorizes the commissioner to declare any substance (or mixture of substances) to be hazardous if it meets those requirements and in his judgment, doing so will promote the objectives of the State Child Protection Act and avoid or resolve uncertainty. If he finds that adequate labeling cannot be devised for an article to protect the public's health, or that the article presents an imminent danger, he can declare it to be a banned hazardous substance and require its removal from commerce. The act specifically authorizes the commissioner to compile a list of toys and other articles intended for use by children that are classified as banned hazardous substances.
The commissioner may also establish safety requirements and standards, labeling requirements, and testing procedures (CGS § 21a-336).
Inspections and Access to Records
The act authorizes the commissioner's officers and employees to (1) enter, at reasonable times, factories, warehouses, or business establishments where hazardous substances are manufactured, processed, packed, or held, or vehicles being used to transport or hold such substances; (2) inspect all such places, vehicles that transport hazardous substances, and associated equipment; and (3) obtain samples. All inspections must be conducted at reasonable times, within reasonable limits, and in a reasonable manner. All samples must be purchased (CGS § 21a-343).
Anyone trafficking in hazardous substances must allow DCP employees to have access to and copy all records showing the movement of the substances, and their quantity, shipper, and consignee (CGS § 21a-344).
Detained or Embargoed Articles
Whenever a DCP inspector finds, or has probable cause to believe, that a hazardous substance is misbranded or banned, he must put an embargo tag on it. The tag must state that the article is a misbranded or banned hazardous substance, or suspected of being one, and is therefore embargoed. It must also warn against removing the tag or disposing of the item. The commissioner may impose a fine of up to $500 for each separate offense on anyone who removes an embargo tag.
If the department finds that the substance is in fact misbranded or banned, it must seek a court order condemning it. Otherwise, it must remove the tag.
If the court agrees that the article is misbranded or banned, it must order it (1) destroyed at its owner's expense or (2) returned for proper labeling under DCP supervision. The owner is responsible for all legal fees and expenses and must post a bond conditioned on properly labeling the goods (CGS § 21a-340).
Repurchasing Banned Articles and Recall
The act requires manufacturers, distributors, and retailers that sell banned hazardous substances, whether or not the substances were banned at the time of the sale, to repurchase them according to regulations the DCP commissioner promulgates (CGS § 21a-346). Since the commissioner has the authority to ban a hazardous substance, he is in effect ordering its recall when he makes such a declaration.
The statutes outline the basic procedures under which a banned hazardous substance must be repurchased and DCP's regulations provide greater detail. Generally, retailers, distributors, and manufacturers must repurchase the product from the individual or business to whom they sold it. They must refund the purchase price plus any reasonable and necessary transportation costs incurred to return the product. “Retailers” are individuals or businesses who sell articles or substances at retail, “distributors” those who sell articles at or substances wholesale, and “manufacturers” are those who manufacture or import articles or substances for distribution or sale in the state (Conn. Agencies Regs. § 21a-342-1).
As soon as a manufacturer knows that a substance is banned, it must immediately notify each distributor, retailer, and other individual or business to whom it has sold the product. The notification must identify the substance, its hazards, and provide instructions for returning the product. A distributor that receives such a notification must similarly notify each distributor, retailer, and individual to whom it has sold the product. Retailers that have sold such substances must immediately prepare and display a “Banned Articles or Substances List” and “Notice of Refund Procedures for Banned Articles or Substances,” among other things.
Anyone who violates the repurchasing law is guilty of a class C misdemeanor and may be punished by up to three months in prison, a fine of up to $500, or both (CGS § 21a-346).
Like the repurchasing law, violating any provision of the act is a class C misdemeanor. But if the violation is committed with intent to defraud or mislead, or it is a subsequent violation, it is considered an unclassified misdemeanor and punishable by up to one year in prison, a fine of up to $3,000, or both.
Anyone who receives or delivers a misbranded hazardous substance in good faith is not subject to the penalties unless he refuses to furnish his supplier's name and address (CGS § 21a-338).
The act authorizes the DCP commissioner to issue reports summarizing any judgments, decrees, or court orders rendered under it, including the nature of the charge and its disposition. The commissioner may also publicize situations involving imminent danger to health (CGS § 21a-345).
STATE POLICIES FOR STRENGTHENING ENFORCEMENT
Two states, California and Illinois, have enacted consumer protection laws that strengthen their ability to prevent the sale of toys with excessive lead levels. Indiana is currently considering such legislation. Several other states, including Colorado, Massachusetts, Michigan, North Dakota, Rhode Island, South Carolina, and Texas, have adopted laws under the FHSA that are substantially similar to Connecticut's State Child Protection Act.
In January 2006, California's attorney general announced a settlement with 71 retailers and distributors to reduce the levels of lead in costume jewelry under Proposition 65, California's right-to-know law. The legislature subsequently passed Assembly Bill 1681 regulating lead in jewelry for retail sale, which the governor signed on September 22, 2006.
The law regulates all jewelry for retail sale, but contains provisions that apply to children's jewelry specifically. It (1) creates standards for lead content based on products' materials and whether they are for children (i.e., age six and younger) and (2) prohibits individuals from manufacturing, shipping, selling, or offering for sale children's jewelry in California, unless it meets or exceeds the standards. Certain metallic components used in children's jewelry must contain less than 0.06% lead by weight and certain other materials must contain less than 0.02% lead by weight. Rubber and plastic must contain less than 0.06%; by August 31, 2009 they must contain less than 0.02%. Glass and crystal decorative components cannot weigh more than one gram, unless they contain less than 0.02% lead by weight and have no “intentionally-added” lead. Printing ink and ceramic glaze must contain less than 0.06% lead by weight. Violators of the law are subject to a civil penalty of up to $2,500 per day for each violation.
In 2006, Illinois enacted PA 094-0879, amending the Illinois Lead Poisoning Prevention Act. The act redefines “lead bearing substance” to include any item containing, not only coated with, lead when the lead content is more than 0.06% lead by total weight. It prohibits any person from using or applying lead bearing substances “in or upon any items, including, but not limited to, clothing, accessories, jewelry, decorative objects, edible items, candy, food, dietary supplements, toys, furniture, or other articles used by or intended to be chewable by children.” It also bans the sale of items, including those intended for use by children, containing a lead bearing substance. The act covers children age six and younger.
Indiana's interim committee, the Health Finance Commission, recently recommended a comprehensive lead poisoning prevention bill, SB 143, which is now before the full General Assembly. With respect to the provisions regulating lead in children's toys, the bill is unique compared to laws in other states because it shifts responsibility to retailers and distributors. It requires them to prove their products comply with certain standards as a prerequisite to selling them. According to Neltner, the bill has strong bipartisan support and a good chance of passing.
Under the bill, individuals and businesses are prohibited from selling, offering for sale, or distributing certain children's products unless they meet one of two requirements. First, the lead content of the item, each of its components, and its surface coating must be less than 0.06% by weight. If the State Department has reason to believe that the lead content of an item exceeds the 0.06% maximum, it may require the person who is selling, offering for sale, or distributing the item to provide the state with written documentation. In that case, the individual or business must provide documentation that the manufacturer or importer has determined that the article is not a hazardous substance and that it complies with recent guidance the Consumer Product Safety Commission issued concerning lead in consumer products, particularly for children (16 C.F.R. 1500.230). In addition, they must specify the following:
1. total amount of lead contained in the item,
2. bioavailability of the lead contained in the item,
3. accessibility to children of the lead,
4. age and foreseeable behavior of children who are reasonably anticipated to be exposed to the item,
5. foreseeable duration of such an exposure, and
6. reasonably-anticipated marketing, patterns of use of the item.
The bill covers any consumer product, surface coating material, food product, or food packaging that is (1) intended primarily for use by a child; (2) reasonably expected to be accessible to, chewed, or ingested by a child who is less than age seven; or (3) intended to be chewed or ingested by a child.
Consumer Product Safety Commission Action
In April 2006, the Sierra Club petitioned the CPSC to use its authority under FHSA and ban lead in toy jewelry (Petition No. HP 06-1). Specifically, the Sierra Club asked the commission to adopt regulations declaring that, among other things, “any toy jewelry containing more than 0.06% lead by weight for which there is a reasonably foreseeable possibility that children could ingest,” be classified as a banned hazardous substance. In the petition, the Sierra Club noted that it was recommending 0.06% because that cutoff was already established as the concentration cutoff for paint on consumer products, but that it should only be considered an interim step. It indicated that it does not believe that 0.06% lead by weight is low enough to protect children.
After analyzing the Sierra Club's request and assessing the currently available information on lead's toxicity, CPSC staff recommended that the commission grant the petition. According Maryanne McGerty-Sieber, spokesperson for the commission, it has begun the rule-making process (San Francisco Chronicle, August 15, 2007).
Connecticut's Response to Toy Recalls
In an August 16, 2007 letter to Mattel concerning a voluntary recall of certain Fisher-Price and Mattel toys in cooperation with the CPSC, Attorney General Blumenthal indicates that the company's distribution of toys containing excessive levels of lead may violate state law. He writes, “[t]o the extent that Mattel distributed these toys in Connecticut, its conduct could be deemed to violate the Child Protection Act.
Continued violations of the Act would constitute unfair and deceptive trade practices pursuant to the Connecticut Unfair Trade Practices Act,” (CGS § 42-110a et seq).
Attorney General Blumenthal further indicates that Mattel must dispose of the contaminated toys in accordance with federal and state laws and hazardous waste regulations, including Conn. Agencies Regs. § 22a-449(c)-102(a)(1), incorporating 40 CFR 262.11. According to Rich Kehoe, special counsel in the Attorney General's Office, the attorney general is working with several states to ensure that Mattel disposes of its contaminated toys in a safe manner from an environmental and public health perspective. Mattel has provided initial assurances, but a working group is still discussing this and other matters with the company.
Connecticut Unfair Trade Practices Act. Under the Connecticut Unfair Trade Practices Act (CUTPA), businesses may not engage in unfair and deceptive acts or practices. CUTPA allows the DCP commissioner to issue regulations defining what constitutes an unfair trade practice, investigate complaints, issue cease and desist orders, order restitution in cases involving less than $5,000, enter into consent agreements, ask the attorney general to seek injunctive relief, and accept voluntary statements of compliance. CUTPA also allows individuals to sue. Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorneys fees; and impose civil penalties of up to $5,000 for willful violations and $25,000 for violation of a restraining order.
United States Consumer Product Safety Commission, Petition for Ban on Lead Toy Jewelry, HP 06-1: http://www.cpsc.gov/LIBRARY/FOIA/FOIA07/brief/LeadToyJewelry.pdf, last visited January 7, 2008.