New Limits on Toxins in Toys Take Effect

Effective Feb. 10, the Consumer Product Safety Commission (CPSC) will begin enforcing new standards for children's products containing lead and phthalates. The standards take effect just days after a federal court voided a Bush administration effort to legalize the sale of products not meeting the standards if the products had been manufactured before Feb. 10. CPSC is enforcing the regulations in response to a 2008 law that gives the agency new powers and responsibilities to protect the public from potentially dangerous consumer products.

Congress directed the CPSC to set a lead standard for the content of children’s products when it passed the Consumer Product Safety Improvement Act (CPSIA, H.R. 4040) in July 2008. The law established a new limit for lead in children's products – 600 parts per million (ppm). Previously, CPSC only limited lead in the paint or coatings on children's products.

Congress overhauled the beleaguered agency and expanded its powers after a record number of children's products were recalled in 2007. Most of the products were recalled for high lead levels. CPSC announced 106 lead-related recalls in 2007, totaling more than 17 million individual products.

In addition to lead, CPSC is restricting phthalates in children's products for the first time. Products may not contain more than 1,000 ppm of the chemical. Environmentalists and consumer advocates hailed Congress's decision to limit phthalates – a compound commonly found in soft plastics – as a victory for children's health. Scientists have linked phthalate exposure to reproductive and developmental abnormalities in fetuses and infants.

The new standards affect manufacturers, importers, distributors, and retailers. Both the lead and phthalate limits apply to products manufactured in the future and products already in inventory. Products already on store shelves, regardless of their manufacture date, cannot be sold if they exceed the new standards.

In 2008, CPSC announced its intent to exempt products already in inventory from the new phthalate limit. A federal court, overruling CPSC, interpreted the CPSIA as clearly prohibiting the sale of any products exceeding the phthalate limit.

The breadth of the new standards' impact has prompted business groups to push back against CPSC. In response, CPSC announced Jan. 30 it will delay enforcement of provisions in the CPSIA that require businesses to test their products for lead and phthalate levels and certify that those products meet the new requirements. However, the new standards will still be put in place on Feb. 10.

Business representatives chafed at CPSC's claim that the delay in testing and certification provides relief. Carter Keithley, president of the Toy Industry Association, an organization that lobbies on behalf of toymakers, said on Feb. 2, "The testing and certification requirements are deferred for one year, but compliance with the new CPSIA standards begins in just over a week . . . and the only way to demonstrate this compliance is through testing."

Another industry lobbying group, the National Association of Manufacturers, petitioned CPSC to delay altogether the effective date of the lead standard. CPSC's two commissioners, Nancy Nord and Thomas Moore, voted to deny the petition.

Meanwhile, public interest groups continue to pressure CPSC to vigorously enforce the new law and subsequent health and safety standards like those for lead and phthalates. "The CPSC is authorized to address most, if not all, the concerns of small business in a way that maintains the integrity of the law while offering relief to independent manufacturers," a coalition of consumer groups said in a statement. "The law's implementation cannot come too soon."

CPSC faces other challenges in enforcing the law. The agency's resources have steadily eroded since it was founded in the 1970s. From FY 1974, when the agency first became fully operational, to FY 2008, CPSC's budget was cut almost 40 percent when adjusted for inflation, according to an OMB Watch analysis of CPSC budget data. Employment at the agency was nearly halved over the same period. CPSC had a budget of $80 million and a staff of approximately 420 in FY 2008.

The CPSIA authorizes $118 million for CPSC in FY 2010, meaning Congress can appropriate up to $118 million when it takes up annual spending bills. The first die in the 2010 appropriations process will be cast when President Barack Obama releases his budget proposal, expected in the next few weeks. FY 2010 begins Oct. 1, 2009.