Monday, February 22, 2010

CPSIA - Game Playing with Phthalates

Last Wednesday during ICPHSO, CPSC General Counsel Cheri Falvey made a direct statement about phthalates testing: You only need to test plasticized parts and paints for phthalates. She also noted that internal components still need to be tested, ridiculous (and expensive) as that may be.

In my post of February 17, I admitted that I hadn't seen this in writing previously and asked for citations. A reader who knows more than me sent me this link. We think she is refering to this language:

"Not all plastics, however, contain phthalates. Certain plastics, such as polyethylene and polypropylene, generally do not require plasticizers. However, surface coatings and adhesives may contain phthalates. In addition, phthalates could be used in some plastics even though they are not required. Phthalates might also be used in some elastomers or synthetic rubbers. . . .

Manufacturers either know or should know what materials and components go into the products they make, and if the product or its components contain one of the plasticizers specified in section 108 of the CPSIA, the manufacturer or importer certifying the product must test the component or product to ensure that it complies with the CPSIA. Failure to comply with section 108 of the CPSIA is a prohibited act under section 19 of the Consumer Product Safety Act (CPSA) and can result in civil and criminal penalties. Likewise, failure to have a product subject to section 108 of the CPSIA tested by an accredited third-party laboratory and have the appropriate certification for that product is also a prohibited act under section 19 (CPSA)." [Emphasis added]

Aha, that's it! Or is it? Here's some more from this document:

"Examples of materials that do not normally contain phthalates and, therefore, might not require testing or certification are:
• Unfinished metal.
• Natural wood, except for coatings and adhesives added to wood. . .
• Mineral products such as play sand, glass, and crystal."

I wrote about this provision in my comment letter on the second proposed phthalates standard (see paragraph 7). All the risk is on the manufacturer, there are no safe harbors other than comprehensive testing (even for wood, metals, sand and crystals), and there is no way to assure a dealer of the validity of an "incomplete" test report.. This rule remains an utterly unworkable and confusing standard - nowhere near as simple as Ms. Falvey implies. Although few wars are raging with test labs over this provision (since testing isn't mandatory yet, "anything" goes), the possibility or probability of chaos remains profound.

I feel strongly that it is wrong of CPSC General Counsel Falvey to make light of this risky situation with an unsupported blanket statement, particularly since she is prone to "tisk tisk" you if you ignore one of her many oral warnings. If her words have the power of law, which they certainly don't, then presumably they also provide cover. Are you ready to make that bet? In this case, if anyone relies on her statement, they are risking civil penalties or criminal charges according to Falvey's own written policy.

Oops- that'll teach you to listen to the General Counsel!


Anonymous said...

Manufacturers either know or should know what materials and components go into the products they make

How on earth are resale entities supposed to know? Oh, that's right, we just shouldn't accept anything plastic and err on the side of caution.

Jennifer Taggart, TheSmartMama said...

Her statement makes sense only if the law were actually reasonable, and regulated by material so that phthalates were limited in the materials that actually have phthalates, like PVC and adhesives, or based upon exposure, like PVC outer surfaces. Oh, that's right, the law isn't, so we have a standard to total lead in rhinestones and crystals when there is virtually no risk of exposure to the lead in the crystal matrix. How silly.

Reliance on her oral pronouncements, practical as they may be? Probably not the best thing to do given that you can't tell an enforcing regulator that Ms. Falvey said it was the law.