As the slow days of summer draw  to a close, school children are not the only ones facing a busy fall  workload. The U.S. Consumer Product  Safety Commission has a packed agenda this fall, and heading into 2015. Here are some of the issues consumer product manufacturers, distributors, and retailers should be following:

  1. 1110  Hearing: The CPSC hearing on September 18 was  scheduled as a result of significant comments filed on the proposed 110 rule in  order to review “stakeholders” anticipated challenges in meeting an electronic  filing requirement. It provides members  of the industry an opportunity to explain to the CPSC the practical logistics involved  in creating certificates that “accompany” products they ship globally. The announcement for the hearing signaled CPSC’s  desire to get into the details, such as understanding the difference between document  imaging and searchable data elements. Many companies have already developed  systems for meeting certificate of compliance requirements, and the rule  changes would necessitate reengineering of existing IT systems to meet new  requirements.
  2. Magnet  Rule: The Commission moved forward with a hearing  on the proposed rule to ban small rare earth magnets, despite concerns raised  by Commissioner Buerkle that the rulemaking was premature and could affect the  ability of the Commission to serve as the appellate review body with respect to  current administrative cases alleging the magnets present a substantial product  hazard. The matter is not set for a  ballot vote and a decisional meeting is scheduled for September 24, 2014.
  3. CHAP  Report: The Chronic  Hazard Advisory Panel, or “CHAP,” recommended that the interim ban on the use  of diisononyl phthalate (DINP) in children’s toys and child care articles at  levels greater than 0.1 percent be made permanent, but that the current interim bans  on di-n-octylphthalate (DNOP) and diisodecyl phthalate (DIDP) be lifted. The  CHAP also recommended that diisobutyl phthalate (DIBP), di-n-pentyl phthalate  (DPENP), di-n-hexyl phthalate  (DHEXP), and dicyclohexyl phthalate (DCHP) should be permanently banned from  use in children’s toys and child care articles at levels greater than 0.1 percent. While the CHAP did not recommend that action  be taken on dimethyl phthalate (DMP) or diethyl phthalate (DEP), it encouraged  U.S. agencies responsible for dealing with DEP exposures from food,  pharmaceuticals, and personal care products to conduct the necessary risk  assessments with a view to supporting risk management steps. Rep.  Henry A. Waxman, Rep. Frank Pallone, Jr., and Rep. Jan Schakowsky followed up  the CHAP report with letters to both Food and Drug Administration Commissioner  Margaret Hamburg and Consumer Product Safety Commission Chairman Elliot Kaye. Their letter urged the agencies to take swift  action to ensure necessary protection for human health, stating:

“The CHAP’s findings are  alarming. The hazards associated with phthalates and their ubiquity in everyday  products underscore the need for further regulatory action on and assessment of  phthalates and phthalate substitutes. Although the statute requires CPSC to act  within 180 days, we urge you to move forward on these actions without delay.”

  1. Transparency  (The 6b Rule):  The rulemaking process continues for CPSC’s  proposed changes to section 6(b) of the Consumer Product Safety Act (CPSA), the  section which provides certain confidentiality protections to those voluntarily  reporting about their products.  Written  comments were due in April 2014. Our  analysis of what the proposed rule revisions may mean for the confidentiality  of information submitted to the CPSC is available here.
  2. Recall  Effectiveness: Continuing the theme of transparency,  consumer groups like Kids in Danger continue to press for more information  about recall effectiveness. Following a  product recall, the recalling entity is required to send monthly reports to  CPSC which include information about how many product returns, replacements or  repairs have been conducted. This  information is submitted confidentially to CPSC, who sometimes shares  information about recall rates in the aggregate, but not by entity name or  particular recall event. Historically,  the overall rate of recall compliance is understood to be quite low, and  getting consumers to return or replace recalled products continues to be  extremely difficult even in the age of social media. Without changes to the 6b rule, CPSC is not  in a position to simply share the monthly reporting information from recalling  entities, and may not have much incentive to do so as low recall rates could  reflect poorly on the agency. That said,  if public pressure mounts, we may see the CPSC try to find other ways to tackle  the recall participation issue.
  3. ATV/ROHV  Safety: All-Terrain Vehicles (ATVs) and Recreational  Off-Highway (ROHVs) are not new to CPSC scrutiny, but during the CPSC’s Fiscal  Priorities meeting, consumer advocates identified ATV/ROHV safety as a high  priority for the coming year. Commission  Adler responded at that meeting by describing such vehicles as “among the most  dangerous products sold today,” suggesting that the CPSC may also have ATV/ROHV  safety in its sights. Likely focus issues  include vehicle stability, occupant protection, and the problems related to  increased use of such recreational vehicles on public roads. On September 11, 2014, the Commission received  a briefing package including a Request for Information (RFI) Regarding  Passenger Use of ATVs to be published in the Federal  Register to solicit comments on the CPSC staffs’ work in “assessing  the inclusion of a performance standard related to preventing passengers on  ATVs.”
  4. Detergent  Packets: Like magnets and button batteries, laundry  packets fall into the category of products which pose a potential safety issue  not because they fail to work as intended, but because of unintended use:  many young children have reportedly swallowed  these convenient cleaning pods. CPSC issued  past safety alerts about these products in 2012 and 2013, but has continued to  receive high numbers of incident reports into 2014. CPSC staff members have been in discussions  with the voluntary standard making body, ASTM, regarding the development of a  new standard to reduce ingestion risk.  Consumer advocacy groups also consider laundry packets to be a priority  for this coming year, potentially adding pressure on CPSC to take further  action.
  5. Window  Covering Standards: The Commission will likely be considering the  petition for rulemaking to eliminate accessible cords on window covering  products in the near future. The  petitioners assert that a mandatory rule is necessary because attempts to  develop a voluntary standard that adequately mitigates the risk of injury  associated with window covering cords have failed. On August 29, 2014, the Window Covering Manufacturers  Association (WCMA) wrote to the CPSC indicating its commitment to the goal of  minimizing the risk of its products and willingness to discuss any and all  proposals including performance based standards focused on minimizing the  strangulation risk to children from corded products. The full text of the WCMA letter can be found  on the CPSC website.