CPSC Issues Proposed Rules on Drawstrings and Hairdryers

Comments are due August 2, 2010.

“15 (j)” Actions Make Voluntary Standards Mandatory in Effect

“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 Deem Characteristics Substantial Hazards, Place on List

CPSC can now issue rulemakings that deem characteristics -- whose presence or absence in a consumer product -- present a substantial product hazard, if certain criteria¹ are met. To add this authority, the proposed rule on hairdryers would add (and the proposed rule on drawstrings would amend) a new 16 CFR Part 1120 called the Substantial Product Hazard List. Placing a consumer product on this list would have the following ramifications:

Reporting. Such products would be subject to the reporting requirements of section 15(b) of the CPSA (i.e., must be immediately reported to CPSC). A manufacturer who fails to report a substantial product hazard to the CPSC would be subject to civil penalties and possibly to criminal penalties.

Orders. A product that is or contains a substantial product hazard would also be subject to corrective action under section 15(c) and (d) of the CPSA. Therefore, CPSC would be able to order the manufacturer, distributor or retailer of the product to offer to repair or replace the product, or to refund the purchase price to the consumer.

Refused Entry. Finally, a product that is offered for import into the U.S. and is or contains a substantial product hazard would be refused admission into the U.S.

(CPSC has previously stated that this new “15 j” authority allows CPSC to avoid the current “trial-like” hearing process which allows violating to products remain in the stream of commerce.)

Would Not Need Testing/Certification for Drawstrings, Immersion Protection

These rulemakings would not establish consumer product safety rules. According to CPSC, this means that the CPSIA testing and certification requirements would not apply to these hazards, however, the products may need to be tested and certified for compliance with other CPSC requirements which are consumer product safety rules (such as flammability, lead content, etc.).²

State preemption. Likewise, as the proposed rules would not create consumer product safety rules, the state preemption provisions in section 26(a) of the CPSA would not apply.³

Drawstring Proposed Rule

The following are highlights of the proposed rule on drawstrings:

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

The 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.

Effective retrospectively, regardless of mnfr/import date. CPSC proposes that any final rule take effect 30 days after its publication in the Federal Register. After that date, all items of children’s upper outerwear that are subject to, but do not comply with, ASTM F 1816-97 would be deemed to be substantial product hazards, regardless of the date they were manufactured or imported.

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 upper outerwear 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 through the channel.

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. (CPSC has previously explained that fully retracting drawstrings are contained within the garment and are exempt.)

Size equivalents.The proposed rule would allow CPSC to use one or more of the following methods to determine size equivalents: (i) boys and girls size Large (L) garments being considered equivalent to size 12, and boys and girls size Extra-Large (XL) garments are equivalent to size 16; (ii) manufacturer, importer, distributor, or retailer statement statements of what sizes are equivalent to sizes 2T to 16; or (iii) any other evidence that would tend to show such equivalency.

Size ranges. In cases where garment labels give 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.

Hairdryer Proposed Rule

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

Hairdryers without Immersion Protection Would be Substantial Product Hazards

The proposed rule would deem a substantial product hazard any hand-held hair dryer without integral immersion protection in compliance with the 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.

Effective date. CPSC proposes that any final rule take effect 30 days after its publication in the Federal Register. According to CPSC, that this means the rule would apply to hand-held hair dryers imported or introduced into commerce 30 days or more after publication of any final rule in the Federal Register.

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.

¹These criteria include that: (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.

²Note that both proposed rules explain that these rulemakings would not create consumer product safety rules, and both discuss what this means in terms of state preemption. However, only the proposed rule on drawstrings discusses the implication of this in terms of CPSIA testing and certification.

³Under 15 USC 2075(a), if a “consumer product safety standard under [the CPSA]” is in effect and applies to a product, no State or political subdivision of a State may either establish or continue in effect a requirement dealing with the same risk of injury unless the State requirement is identical to the Federal standard.

CPSC proposed rule on drawstrings (D/N CPSC-2010-0043, FR Pub 05/17/10) available at http://edocket.access.gpo.gov/2010/pdf/2010-11622.pdf

CPSC proposed rule (D/N CPSC-2010-0042, FR Pub 05/17/10) on hairdryers available at http://edocket.access.gpo.gov/2010/pdf/2010-11624.pdf

ASTM standard on drawstrings (viewable only during the comment period on this proposed rule) available at http://www.astm.org/cpsc.htm.