New CPSC law affects helmets
Agency has new requirements and recall authority
Summary: The Consumer Product Safety Improvement Act of 2008 introduced some new CPSC rules, regulations and standards. It also increased CPSC's recall authority and penalties for flaunting the law. These provisions affect helmets and helmet manufacturers. Consumers will see very little or no change in helmets, and will not know which ones have been improved by removing lead or phthalates unless the manufacturer chooses to advertise that fact. We have not seen any to date. Large retailers are protecting themselves from lawsuits by requiring changes beyond what has been mandated. Some requirements were in California law under Proposition 65 and manufacturers have already taken necessary action. The ban on "sales" of recalled products includes distribution of helmets and other products free by non-profits or non-commercial enterprises like fire departments, service clubs or schools.
Some key provisions of the act that affect helmets:
Ban on Children's Products Containing Lead
The Act bans lead in children's products. No product intended for children up to age 12--including toddler helmets and probably youth helmets as well--can contain more than 100 parts per million total lead content by weight for any part of the product. The rules have other provisions, and CPSC has a page up on on lead content in children's products.
Lower Lead Paint Limit
The Act establishes a more stringent lead paint limit than the current standard. Lead might occur in paints used on helmets or packaging. That ban applies to adult helmets as well as child helmets.
Ban on Phthalates
The Act prohibits use in children's chewable toys of several phthalates (softening agents in plastics) immediately and more over time. It affects anything with at least one dimension under 5mm. That could affect the straps and buckles in toddler helmets, but CPSC has posted advice indicating that sporting goods are not covered by the ban. We believe that child helmets are not covered. The CPSC website also has a letter from their General Counsel with an opinion that children's vinyl rainwear would not be covered by the phthalate ban because it is not designed to be played with by a child. We asked CPSC for a formal ruling on toddler helmets, but go no response. In meetings they say sporting goods are exempt, but qualify that because it is a Staff position, not the final Rule to be adopted by the Commissioners. In any event, phthalates are now seen to be a problem, and the nation's largest retailers want it removed. That will probably lead most manufacturers to eliminate phthalates in their adult products as well. There will be no notice to consumers of any changes, however, unless the manufacturer chooses to note that on the labels or packaging.
Mandatory Toy Standard
The Act made most parts of the ASTM F963-07e1 standard an interim consumer product safety standard. CPSC must eventually establish mandatory standards by rule. The ASTM standard does not cover safety helmets, but requires that toy helmets and other "simulated protective devices" have a label stating that they are not safety protective devices.
Third Party Testing
Third party testing of certain children's products is required, including toddler helmets and probably youth helmets as well, since they are designed for under-12 year olds.
Certificate of Compliance
The Act requires manufacturers to accompany each product shipment to an importer, distributor or retailer with a Certificate of Compliance.
Enhanced Recall Authority
The Act strengthened CPSC's authority to order manufacturers to stop distribution of the product, notify anyone who handled the product to cease its distribution and notify state and local public health officials of substantial product hazards. In addition, CPSC can require distribution of a notice in a language other than English.
The Act increased civil penalty maximums from $5,000 to $100,000 per violation, and from $1,250,000 to $15,000,000 for multiple violations. CPSC can seek asset forfeiture as a penalty for a criminal violation. Maximum criminal penalties are increased.
Certification of labs
CPSC has designated certification organizations to certify the labs to do testing under the program.
Inspection of "firewalled" labs
CPSC has authority to inspect labs that are owned by a manufacturer but claim to be firewalled from the manufacturing operation and able to produce testing equivalent to third parties.
States can enforce
The Act permits state attorneys general to file suits in Federal courts to enforce its provisions.
Sale or Re-export of recalled products prohibited
The Act bans all sales of recalled products, plugging a hole in the previous legislation. It also prohibits re-export of recalled products unless the receiving country approves. We understand that CSPC might permit re-export of a helmet certified only to the CEN standard to Europe, if the product was not defective but just did not meet the CPSC standard. The ban on "sales" of recalled products includes distribution of helmets and other products free by non-profits or non-commercial enterprises like fire departments, service clubs or schools.
The Act authorized but did not appropriate an increase in CPSC's funding level in each coming year from $80 million to $136 million by fiscal year 2014, restoring some of the deterioration of the past eight years. CPSC has asked Congress to appropriate an increase immediately and in fact did receive a substantial increase in funding and staff.
The Act restored CPSC to a 5 member Commission and increased staff to at least 500 employees including additional personnel to be assigned to duty stations at U.S. ports of entry. Again this makes up for some of the loss of staff the agency has experienced over the past decade.
Rule making was streamlined by eliminating some delays in the process. CPSC must put a consumer product safety database on line. CPSC can share confidential proprietary data with other government agencies: Federal, state, local and foreign. CPSC employees are not allowed to permit industry to pay their travel expenses. CPSC can swap personnel with foreign agencies for training. Manufacturers and others must observe whistleblower protections for employees of manufacturers, private labelers, retailers and distributors to encourage them to report violations. CPSC must coordinate more closely with Customs on clearing of imports and place additional staff at ports. It can require destruction of non-compliant products at the port. Sales of three-wheel All Terrain Vehicles are prohibited, and four wheel ATV's must comply with the ANSI standard for those.
This new Act strengthens CPSC and attempts to repair the damage from years of neglect and obstruction by an Administration that did not support the agency's purpose. Since we already had a CPSC helmet standard that required a formal act of Congress to be promulgated in 1999, there will be minimal change from the consumer's point of view in the helmets you see at stores. Some phthalates may be eliminated, mostly from straps. There will probably not be a manufacturer's label highlighting compliance with the CPSIA unless consumers begin to ask questions, and we assume those would come mostly from concerned parents. The main focus of the Act is on child products, but the elimination of suspicious chemicals is likely to be required by the largest retailers for all products, benefiting adults as well.
Meeting on testing
Our assessment is posted as an email. The testing requirements for adult helmets do not change, but child helmets must be third party tested for lead, phthalates and their ability to meet the CPSC helmet standard.
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