Comments to the Consumer Product Safety Commission on “Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108″

March 25, 2009

Office of the Secretary
Consumer Product Safety Commission
4330 East West Highway
Bethesda, MD 20814

Comments of the Breast Cancer Fund, Consumer Federation of America,
Consumers Union, Kids in Danger, National Research Center for Women & Families, Public Citizen, and U.S. Public Interest Research Group
on
“Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108″

Introduction
Our groups representing patient, consumer, science and public health interests submit the following comments regarding the draft approach prepared by CPSC staff for determining which products constitute a children’s toy or child care article and are subject to section 108 of the CPSIA.

Section 108 prohibits the sale of certain children’s toys and products containing six specified phthalates (BBP, DBP and DEHP permanently, and DIDP, DINP and DnOP on a provisional basis).

We welcome the development and publication of these guidelines. While we do not agree with every recommendation of the CPSC staff, we are gratified to see that necessary clarifications are almost complete.

We look forward to working with the CPSC to continue to make the protection of children’s health and safety the primary focus of CPSIA implementation. In several areas of the draft guidance, we agree with staff’s assessment. We have some concerns, however, with staff’s recommendations on secondary products, products in close proximity to children, and products with multiple functions.

Toys
Section 108 of the CPSIA defines a children’s toy as a consumer product designed or intended by the manufacturer for a child 12 or younger. Section 108 also lists four factors that determine if a product is designed or intended for use by a child 12 or younger. The CPSIA defines a toy that can be placed in a child’s mouth as one that “can actually be brought to the mouth and kept in the mouth by a child so that it can be sucked and chewed. If the children’s product can only be licked, it is not regarded as able to be placed in the mouth.”

We agree that ASTM F963 excludes certain types of articles from the definition of toy, such as bicycles and athletic equipment, and we agree that if a ball is a toy version of athletic equipment, then it is subject to the CPSIA. We also agree that ordinary books are not toys, but novelty books such as plastic bath books are toys. These are common sense, clearly defined distinctions clarifying what is and is not a toy.

However, some ASTM F963 excluded items, such as kites and model kits, should be subject to section 108 regulations because parts of these items can be put in a child’s mouth (and be sucked and chewed) and they are designed for use by a child 12 or younger. Staff notes that art materials are exempt under ASTM F963, but are subject to the Labeling of Hazardous Art Materials Act. Art products that are designed for very young children and have a reasonable expectation of being in or near a child’s mouth, such as finger paints, should be subject to section 108 of CPSIA. In addition, CPSC should consider requiring labeling of all art and craft materials and model kits for the presence of phthalates, so consumers can make informed purchases.

We agree with staff that deflated pool toys and beach balls are toys that can be placed in a child’s mouth. Children have access to these toys when they are not inflated, and even when they are inflated, the toys can be punctured or lose air making them very easy for children to put into their mouths (and be sucked and chewed).

Child Care Articles
Section 108 of the CPSIA defines a child care article as a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children 3 and younger, or to help these children with sucking or teething.

Regarding child care articles, CPSC staff proposes that products that can be chewed or sucked by infants such as bibs, baby blankets, high chairs, sipper cups, feeding bottles, and crib teething rails are primary products subject to CPSIA section 108. We agree with staff’s assessment.

We agree with most of staff assessments regarding secondary products, although we believe that in making final determinations on specific items, emphasis should be placed on the likely proximity of the item to the child’s mouth rather than focusing solely on the “intended” function. Many secondary products are designed to be used exclusively by parents, and have little chance of having direct contact with children. We agree with staff that secondary products such as bottle warmers and highchair floor mats would not be subject to the regulations of section 108. However, other secondary products such as mattress covers could expose children to a banned phthalate. We recommend secondary products be looked at on a case-by-case basis and not be given a class-wide exemption to section 108.

Staff also refers to some secondary products as “products in close proximity to the child” such as cribs, crib mattresses, toddler mattresses, mattress covers, or mattress pads. These products should be subject to section 108 of the CPSIA because they facilitate sleep and because infants may be able to get pieces of the product in their mouths and suck or teethe on them. Mattresses with waterproof coatings of PVC are common, and DEHP, one of the banned phthalates that is a suspected carcinogen and reproductive toxicant, is readily found in numerous PVC products.

We urge CPSC to include products that have multiple functions. Staff notes that bouncers, swings and some strollers are generally considered secondary products, but staff also notes that parents use these products to help their children to fall asleep and for other reasons. Staff notes that manufacturers would be subject to section 108 regulations, if they advertise secondary products as facilitating sleeping, or feeding, or other purposes.

In our view, these products are generally known to be used at times to facilitate sleep and should therefore be included regardless of how manufacturers advertise them. The components of the product that the child has contact with when the product is used to facilitate sleep should not contain banned levels of phthalates since such components are present in the child’s sleep environment.

Cribs
Cribs should be considered child care articles. Any part of the crib that a child can chew or teethe on should be subject to the requirements, not merely the teething rail.

Other Specific Items
The CPSC asks if 14 specific items should be subject to the requirements of section 108 and whether they should be classified as toys or child care articles. All 14 items should be subject to section 108 requirements. Most of the items should be considered child care articles (bibs, pajamas, crib/toddler mattresses and mattress covers, crib sheets, infant sleep positioners, baby swings, water wings, and baby walkers) because they can be sucked or teethed on by infants. The remainder should be considered toys (play sand, decorated swimming goggles, wading pools, shampoo bottles in animal or cartoon characters, and costumes and masks). Toy-like packages should be considered toys. For example, children are not likely to discern the difference between animal shaped packages versus plastic animal toys.

Promotional Items and Electronic Devices
If a promotional item is designed for play or part of a marketing campaign aimed at children 12 years or younger or aimed at their parents, it should be considered a toy.

Similarly, electronic products, such as cell phones, that are marketed and packaged to appeal to children 12 years or younger should also be covered. For these products, the same set of criteria should be used to determine coverage under this section as is used to determine if an item is a toy subject to section 108.

Conclusion
Our organizations agree with CPSC staff in several areas of the draft guidance, especially concerning toys. We agree with staff’s assessment regarding primary products for child care articles, but we strongly urge that staff reconsider their recommendations in a manner to include more secondary products, products in close proximity to children, and products with multiple functions.

We look forward to continuing to work with the CSPC staff on implementation of this statute in a manner that continues to make protecting children’s health and safety its top priority.

Respectfully submitted,

Janet Nudelman Director of Program & Policy
Breast Cancer Fund
(415) 346-8223

Rachel Weintraub
Director of Product Safety and Senior Counsel
Consumer Federation of America
(202) 387-6121

Donald Mays
Senior Director, Product Safety and Technical Public Policy
Consumers Union
(914) 378-2346

Nancy A. Cowles
Executive Director
Kids in Danger
(312) 595-0649

Diana Zuckerman
President
National Research Center for Women & Families
(202) 223-4000

David Arkush
Director, Congress Watch
Public Citizen
(202) 454-5430

Elizabeth Hitchcock
Public Health Advocate
U.S. Public Interest Research Group (U.S. PIRG)
(202) 546-9707