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The Consumer Product Safety Improvement Act of 2008

The Consumer Product Safety Improvement Act of 2008 (the Act), intended to “modernize” the Consumer Product Safety Commission (CPSC or the Commission), was signed into law by President Bush on August 14, 2008. [1] Touted as “‘the most significant overhaul of U.S. consumer product safety laws since the creation of the Consumer Product Safety Commission’” [2] and “‘the first step toward revitalizing an important safety agency and restoring confidence in the safety of consumer products for years to come,’” [3] the Act maintains the basic structure of federal consumer product safety efforts, reauthorizing the CPSC through fiscal year 2014. Yet, this new legislation also expands the CPSC’s mandate and provides the commission with powerful new tools to aid in its enforcement duties.

Reacting to product recalls that topped headlines in 2007, [4] Congress formally took up consumer product safety issues late last fall when Rep. Bobby Rush of Illinois introduced H.R. 4040 [5] on November 1, 2007. After five versions, two name changes, [6] and compromises between the Senate and House versions of the bill, Congress passed the Act by overwhelming majorities—89 in favor in the Senate [7] and 424 in favor in the House. [8]

The Act has both great breadth, tackling a wide range of topics from children’s products to all terrain vehicles (ATVs), and great depth, drilling down to very specific standards for lead and certain phthalates (plastic softeners). As to its scope, President Bush noted that the Act enlarges the CPSC’s role especially as it pertains to products designed for children. [9] In fact, Congress specifically devoted eight sections of the Act to children’s product safety.10 In addition to these provisions, the Act provides for the study of risks to consumers from formaldehyde in textiles, [11] expedited judicial review of CPSC enforcement actions, [12] and dramatically increased civil penalties. [13] Addressing perennial preemption concerns head-on, the Act reiterates that CPSC regulations preempt contrary state laws, but the Act does not preempt state regulation in areas where the CPSC has failed to act. State warning laws are also left intact, and the Act is not intended to preempt state common law tort claims.

Major Provisions
Section 102 significantly expands CPSC certification requirements. As of November 12, 2008, certification is required for all products subject to any rule, standard, ban, or regulation under any Act enforced by the Commission. Such certification must be based on a test of the product or a “reasonable testing program.” In addition, manufacturers of products intended for use by children 12 years of age or younger must submit their products for testing by an accredited independent testing lab and, based on the results of that testing, issue a certificate indicating that their product meets all applicable CPSC requirements.

Section 103 requires manufacturers to include a tracking label, where practicable, on consumer products primarily intended for children 12 years of age and younger, which must include information such as the date of manufacture.

Section 219 provides new whistleblower protections for employees of manufacturers, private labelers, distributors, and retailers of consumer products, specifically creating a cause of action for employees who suffer an adverse employment action because of reporting a violation of a statute or regulation enforced by the Commission.

Section 232 makes mandatory the current voluntary standard for four-wheel ATVs (ANSI/SVIA 1-2007). Effective September 13, 2008, until the Commission adopts a mandatory standard for three-wheeled ATVs, such products are banned from being imported into or distributed in the United States.

New Lead Standards
In a series of steps, Section 101 of the Act dramatically reduces the permissible levels of lead in “children’s products” and defines this term as consumer products intended primarily for children 12 years of age or younger. This graduated approach requires that 180 days after enactment, lead in children’s products not exceed 600 parts per million (ppm) for total lead content; 1 year after enactment this level is dropped to 300 ppm and 3 years after enactment this level is dropped again to 100 ppm, unless the CPSC determines that 100 ppm is “not technologically feasible.” Children’s products that fail to meet these new standards will be treated as a “banned hazardous substance under the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.).” Despite these required reductions in lead levels, Congress has empowered the CPSC to exclude certain products and materials from these standards and to determine whether “inaccessible component parts” of children’s products may also be excluded.

Certain Phthalates Banned
Phthalates are a group of chemical compounds formed from alcohols and phthalic anhydride that are used primarily to soften plastics for use in a wide variety of products. Congress has elevated the importance of regulating six specific phthalates (DEHP, DBP, BBP, DINP, DIDP, and DnOP) by prominently including new standards for these substances in the Act itself. Circumventing the normal administrative rule-making process, 180 days after enactment, the Act bans the manufacture, sale, distribution, and importation of “any children’s toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).” While the Act places an outright ban on the phthalates listed above, until a final rule is adopted by the CPSC, it places an interim ban on “any children’s toy that can be placed in a child’s mouth or child care article that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).”

It is unclear why Congress provided direct legislation regarding certain phthalates while allowing most standards to be developed and evaluated at the Commission level. Regardless of the reason, it is clear that phthalates have now been called to the attention of plaintiffs’ lawyers, and lawsuits centered on the six phthalates regulated by the Act are likely to ensue.

New Third-Party Testing Requirements
The Act provides increased rigor for children’s product safety by, among other ways, requiring that manufacturers and labelers of children’s products submit their products to accredited third-party testers for certification of compliance with all CPSC-enforced standards. [14] The CPSC is charged with accrediting such “third party conformity assessment bodies.” This new provision is sure to spur the creation of new business entities devoted to conformity assessment and undoubtedly will increase costs for manufacturers, importers, and private labelers of children’s products.

Increased Litigation
The Act likely will lead to increased litigation on two fronts: prosecution by state attorneys general and product liability litigation.

The Act expands the ability of state attorneys general to enforce federal law by, among other things, permitting them to initiate a suit based on an allegation of “substantial product hazard.” [15] The expanded enforcement power granted to state attorneys general, coupled with current public opinion regarding the lax enforcement of safety regulations, may prompt officials to look into product safety issues with a revitalized fervor.

Similarly, on the civil litigation front, synergies among several provisions of the Act likely will spell an increase in product liability litigation. Innocuous when viewed separately, when used collectively, several provisions of the Act provide a powerful new tool for plaintiffs’ lawyers. For example, the Act’s ban of certain phthalates highlights a new category of products that the plaintiffs’ bar may target. The Act’s new product labeling requirements will permit easier identification of target defendants. Finally, the call for the creation of a new publicly accessible database for tracking “harm relating to the use of consumer products” is sure to create an attractive trolling ground for attorneys. Taken together, these three provisions create an environment for increased product liability claims.

This article appeared in the Spring 2009 [members area] issue of Products Liability, the newsletter of the Products Liability Committee.

Endnotes

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