Two CPSC Commissioners Say Phthalates Test Notice for Kid's Toys/Care Articles Falls Short of What is Needed
Two CPSC Commissioners have issued statements criticizing the August toy and child care article testing notice, which lists materials that are not expected to contain phthalates and do not need to be tested/certified, as being too brief. The two Commissioners had advocated a more detailed list. Both also said that a rule defining toy and child care articles should have been issued.
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The other three Commissioners issued a joint statement saying that this August 2011 notice cleared up confusion regarding the scope of requirements for testing and certifying toy and child care articles to the phthalates standards.
2011 Notice Lists Products that Don't Need Testing, While 2009 Policy Statement is More Conditional
The August 2011 notice stated that untreated/unfinished wood, metal, natural fibers, natural latex, and mineral products are not expected to inherently contain phthalates and need not be tested or certified, provided that these materials have neither been treated nor adulterated with the addition of materials that could result in the addition of phthalates into the product or material. It also stated that the 2009 Statement of Policy remained in effect.
However, the 2009 Statement of Policy is more conditional. It states that examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are (1) Unfinished metal, (2) Natural wood, except for coatings and adhesives added to wood (3) Textiles made from natural fibers, such as cotton or wool, except for printed decorations, waterproof coatings or other surface treatments, back coatings, and elastic materials (especially sleepwear), (4) Textiles made from common synthetic fibers, such as polyester, acrylic, and nylon, except for printed decorations, waterproof coatings or other surface treatments, and elastic materials. However, any textiles containing PVC or related polymers must be tested, (5) Polyethylene and polypropylene (polyolefins), (6) Silicone rubber and natural latex, (7) Mineral products such as play sand, glass, and crystal.
(See ITT’s Online Archives or 08/10/11 news, 11081011, for BP summary of CPSC August 2011 notice, which requires testing and certification for the presence of phthalates in toy and child care articles manufactured or imported on or after January 1, 2012. See ITT’s Online Archives or 08/17/09 news, 09081705, for BP summary of the Statement of Policy.)
Highlights of the Commissioners’ statements include:
Tenenbaum, Adler & Moore Say 2011 Notice Should Resolve Scope Confusion
In their joint statement, Tenenbaum, Adler, and Moore noted that the August 2011 notice reaffirms the 2009 Statement of Policy allowing for the use of “plasticized component part” testing for phthalates, something they say reduces phthalates testing costs while simultaneously providing a higher degree of protection for children.
The three Commissioners also stated the August 2011 list of products that do not need to be tested or certified shrinks, rather than expands, the universe of materials and products that need to be tested or certified. The Commissioners state that the guidance contained in the 2009 Statement of Policy for certain other materials, such as polyolefins, still remains in effect.
They also express confidence that much of the previous confusion regarding whether a product is a toy or child care article has dissipated since 2009, and those who have questions can respond to the August 2011 notice by the September 9 comment deadline.
Northup Criticizes Majority’s “Unwillingness” to Provide Clarification to Industry
Commissioner Northup’s statement noted that although the staff had prepared an interpretative rule on the definition of toy and child care article issue in 2010, it was pulled from consideration. In addition, she says that a public enforcement policy recently under discussion was shelved.
According to Northup, a notice and comment rulemaking would have assisted the Commission in determining whether the list of materials exempted from testing and certification to phthalates standard should be expanded, and while the August 2011 notice included a list of phthalate-free materials, the list was brief and the public will still have questions.
Nord Says Opportunity for Further Guidance for Phthalates Was Missed
In her statement, Commissioner Nord echoed Northup’s concerns that CPSC staff had prepared a proposed interpretative rule (2010) and information package with clarifying information (2011), but both were pulled from consideration by the majority of Commissioners.
According to Nord, by pulling such material, an opportunity to discuss the issue of what constitutes a toy or a child care product for the phthalates ban was missed. Nord points out that beyond a “short” list of phthalate-free materials, the August 2011 notice just refers the public to the 2009 Statement of Policy.
CPSC Commissioner statements on phthalates available here.