CPSC Posts Draft “15 j” Proposed Rules on Drawstrings and Hairdryers

The Commission discussed these draft proposed rules during its April 28, 2010 open meeting. A Commission vote on the drafts is scheduled for May 5, 2010. The following summary highlights the drafts and the Commission’s April 28th discussion of them.

“15 (j)” Allows CPSC to Make Voluntary Standards “Mandatory”

“15 (j)” is a new authority provided by the Consumer Product Safety Improvement Act of 2008 (CPSIA) that in effect, allows CPSC to make voluntary standards mandatory.

CPSC can now issue rulemakings which deem defined characteristics of a consumer product a substantial product hazard if the following four criteria are met: (i) the characteristics are readily observable; (ii) the characteristics have been addressed by voluntary standards; (iii) such standards have been effective in reducing the risk of injury; and (iv) there is substantial compliance with such standards.

Products subject to reporting, refused entry. Manufacturers (and importers) of products with substantial product hazards must meet the reporting requirements of section 15 (b) of the CPSA (immediately inform CPSC of the defect) or face possible civil and criminal penalties. In addition, such productswill be refused admission into the U.S. and are subject to corrective action (mandatory recalls, orders, etc.).

No certification required, etc. The draft proposed rules would not establish consumer product safety rules. Therefore, CPSC states that the CPSIA testing and certification requirements would not apply, as the only type of rule that can trigger this requirement is a consumer product safety rule under the CPSA or a similar rule, standard, ban, etc under another CPSC-enforced act. In addition, the state preemption provisions in section 26(a) of the CPSA would not apply.

Drawstring Draft Proposed Rule

The following are highlights of the draft proposed rule on drawstrings:

Children’s Upper Outerwear with Drawstring Violations Would be Substantial Hazards

The draft proposed rule would deem as substantial product hazards children's upper outerwear in sizes 2T to 16 or the equivalent, having one or more drawstrings, that is subject to but not in conformance with the requirements of ASTM F 1816-97, Standard Safety Specification for Drawstrings on Children's Upper Outerwear.

No drawstrings at neck, limited length at waist. ASTM F 1816-97 prohibits the use of drawstrings on the hood and neck areas of children's clothing sizes 2T to 12. It also limits the length of waist/bottom drawstrings on articles of sizes 2T to 16 to 75 mm (3 inches) in length outside the drawstring channel when the garment is expanded to its fullest width.

No toggles, knots, etc.In addition, under ASTM F 1816-97, waist/bottom drawstrings can have no toggles, knots, or other attachments at the free end. If the drawstring is one continuous string, it must be bartacked or sewn to the garment at the midpoint of the channel so that it cannot be pulled out of the channel. Fully retracting drawstrings are contained within the garment and are exempt.

Definition. Under the proposed rule, "drawstring" would be defined as "a non-retractable cord, ribbon, or tape of any material to pull together parts of outerwear to provide for closure.

Size equivalents and ranges.The proposed rule would provide that boys and girls size Large (L) garments are equivalent to size 12, and boys and girls size Extra-Large (XL) garments are equivalent to size 16. A size could also be considered equivalent to the 2T-16 range if a manufacturer, importer, distributor, or retailer has stated that it is equivalent or any other evidence shows that it is equivalent. Under the proposed rule, if a garment is labeled for a range of sizes, the garment would be considered subject to ASTM F 1816-97 if any size within the range is subject to ASTM F 1816-97.

Effective date. Any final rule based on the proposed rule would take effect 30 days after its publication in the Federal Register.

Commissioners Question Sizing, Recall History, Etc

At the April 28, 2010 CPSC meeting, the Commissioners were generally very receptive to the draft. They did, however pose certain questions regarding sizing and past recalls. For example, Commissioner Adler asked why children’s upper outwear smaller than size 2T was not subject to the voluntary standard. Commissioner Tenenbaum wondered whether some of the sizing might be subject to controversy as children are increasingly heavy. Finally, Commissioner Northup noted that drawstrings at the waist were fairly hazardous and wondered why products with such drawstrings were not subject to more recalls.

Hairdryer Draft Proposed Rule

The following are highlights of the draft proposed rule on handheld hairdryers:

Hairdryers without Immersion Protection Would be Substantial Product Hazards

The draft proposed rule would deem substantial product hazards hand-held hair dryers that do not provide integral immersion protection in compliance with the (currently voluntary) requirements of section 5 of Underwriters Laboratories (UL) 859 2007, Standard for Safety for Household Electric Personal Grooming Appliances, or section 6 of UL 1727, Standard for Safety for Commercial Electric Personal Grooming Appliances.

Definition. Under the proposed rule, a hand-held hair dryer would mean an electrical appliance, intended to be held with one hand during use, which creates a flow of air over or through a self-contained heating element for the purpose of drying hair.

Effective date. Any final rule based on the proposed rule would take effect 30 days after its publication in the Federal Register.

Commissioners Ask About Other Products, Discouraging Innovation

At the April 28, 2010 CPSC meeting, the Commissioners were again very receptive to the draft but posed certain questions. Commissioner Adler asked why more products weren’t included in the draft’s scope since the voluntary UL standards cover products other than hand-held hairdryers. Staff answered that CPSC’s recall experience and risk assessments have led them to focus only on the hairdryers.

Commissioner Nord noted that in the case of hairdryers, industry might be afraid to create design innovations that would hide the required immersion protection device (i.e. make it internal rather than a large device on the end of the plug), for fear that their products would be stopped at the ports and destroyed for not having the required device. Staff stated that industry could still innovate, but would want to somehow call attention to the fact that they had hidden the device to avoid problems at the ports.

CPSC ballot vote sheet and draft proposed rule on drawstrings available at http://www.cpsc.gov/LIBRARY/FOIA/FOIA10/brief/drawstrings.pdf

CPSC ballot vote sheet and draft proposed rule on hairdryers available at http://www.cpsc.gov/LIBRARY/FOIA/FOIA10/brief/hairdryers.pdf

CPSC webcast and staff presentation slides from April 28, 2010 meeting available at http://www.cpsc.gov/webcast/previous.html