OLR Bill Analysis

sHB 5650

AN ACT CONCERNING CHILD PRODUCT SAFETY.

SUMMARY:

This bill 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) (see BACKGROUND). With certain exceptions, it makes children's products that fail to comply with the limits banned hazardous substances. It prohibits placing children's products in the stream of commerce under certain conditions, including when they have been subject to voluntary corrective action and the defect has not been corrected.

The bill requires retailers and other businesses in the state selling a banned hazardous substance to submit to the Department of Consumer Protection (DCP) a report accounting for its disposal. It requires the 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 Department of Public Health (DPH) to compile a list of other toxic substances, the recommended maximum amount for their use in children's products, and safer alternatives. The bill requires consumer products with which a child may reasonably or foreseeably come into contact to have warning labels if they bear lead-containing paint.

Finally, the bill makes technical changes.

EFFECTIVE DATE: October 1, 2008

BANNED HAZARDOUS SUBSTANCES

The State Child Protection Act prohibits placing a banned hazardous substance in the stream of commerce. The bill 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 bill 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 bill, a children's product is considered a banned hazardous substance if (1) any part of the product contains more than 40 parts per million (ppm) lead content by weight, (2) it bears lead-containing paint and that the paint has more than 40 ppm lead content by weight; or (3) it contains more than . 004 milligrams of lead per centimeter squared (see BACKGROUND).

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

Electronic Devices. The bill 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 bill's standards. 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 bill's stricter standards applicable to all other children's products.

PROHIBITED ACTS

The bill prohibits manufacturing; remanufacturing; retrofitting; distributing; selling at wholesale or retail; 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 subject to voluntary corrective action by the manufacturer, wholesaler, distributor, or, importer, or is recalled by the manufacturer, wholesaler, distributor, or importer in cooperation with the federal government, and the recall has not been rescinded and 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.

FINAL DISPOSITION REPORT

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 bill requires retailers and other businesses in the state selling a banned hazardous substance to account for its disposal. Specifically, it requires these retailers and businesses to submit a final disposition report to DCP within 30 days of the commissioner banning a hazardous substance that they are selling. The report must include:

1. the type, make and model, quantity, and disposition of any articles declared a banned hazardous substance;

2. information concerning how the article has been disposed of, including where it was sent or returned to for destruction; and

3. a sworn statement indicating that the article that is the banned hazardous substance has not been sold or distributed to any other business entity for resale or distribution in the consumer market.

INTERNET LISTS

The bill 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.

The bill also requires the DCP commissioner, in consultation with the DPH commissioner, to compile a list of other toxic substances and the recommended maximum amount for use in children's products as measured by ppm total content. (Presumably, a substance commonly measured in a unit other than ppm would be listed in that manner). They must amend the list from time to time. The DCP commissioner must establish and update a corresponding list of safer alternatives to the toxic substances.

WARNING LABELS FOR CERTAIN CONSUMER PRODUCTS

The bill defines “consumer product” as any article that is used primarily for personal, family, or household purposes. The bill requires the DCP commissioner to adopt regulations identifying consumer products with which a child may reasonably or foreseeably come into contact. It 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 the warning label required by federal regulation.

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

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

BACKGROUND

Federal Hazardous Substances Act

FHSA is one of five laws that the Consumer Product Safety Commission administers (CPSC). 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

The CPSC establishes by regulation 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 Bills

SB 524 (File 137) prohibits placing in the stream of commerce certain products, including those that have been the subject a voluntary recall, and requires DCP to adopt regulations setting reporting requirements for the final disposition of the recalled products.

HB 5025 prohibits the sale of asbestos-containing toys or other items marketed for children under age 16 and increases the State Child Protection Act's criminal and civil penalties, among other things.

HB 5601 (File 110) bans toys and other articles intended for children age 12 and younger containing more than 40 ppm of lead or certain other chemical compounds.

COMMITTEE ACTION

Select Committee on Children

Joint Favorable Substitute Change of Reference

Yea

8

Nay

2

(03/06/2008)

General Law Committee

Joint Favorable

Yea

18

Nay

0

(03/11/2008)