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Consumer Product Safety Commission Update Relating to Children’s Toy Regulations

The Consumer Product Safety Commission (“CPSC”) and State of Vermont have enacted new requirements relating to the regulation of children’s toys and other children’s products.

I. CPSC Amendment to Testing Requirements for Unfinished and Untreated Wood Toys and Wood Component Parts of Toys

In a Federal Register notice dated December 17, 2015, the CPSC published a final rule amending the requirements of ASTM F963-11 to eliminate third party testing requirements for certain unfinished and untreated woods toys and wood component parts of toys.

ASTM F963-11 is a mandatory product safety standard that restricts the maximum solubility of eight elements (antimony; arsenic; barium; cadmium; chromium; lead; mercury; and selenium) in the coatings and substrates of certain toys. Third party testing is required to certify compliance with the limits on these elements, and testing is required when there are material changes to a previously-certified product. Moreover, toys subject to the ASTM F963-11 standard are required to undergo periodic testing to demonstrate continued compliance with the limits. For certain materials, compliance with ASTM F963-11 is guaranteed without third party testing due to the inherent characteristics of the material.

Beginning in 2013, in order to reduce the burden of third party testing, the CPSC began researching materials with inherent characteristics that guarantee compliance with ASTM F963-11. Ultimately, the CPSC hired a contractor to research whether unfinished and untreated woods, bamboo, beeswax, undyed and untreated fibers and textiles, and uncoated or coated paper contain any of the eight specified heavy elements in concentrations above the ASTM F963-11 maximum solubility limits. The results of the research were inconclusive for all of the materials except for unfinished and untreated woods.

With respect to unfinished and untreated woods, the research indicated that heavy elements were not present in tree trunks above the solubility limits, but heavy elements may be present in wood from other portions of the tree. Although heavy elements may be present in parts of the tree other than the trunk, the CPSC noted that commercial timber harvesting eliminates other portions of the tree through a process that creates logs from the trunks of trees.

Based on its findings, the CPSC amended testing requirements to eliminate third party testing for certain unfinished and untreated woods toys or wood component parts of toys. This rule will go into effect on January 16, 2016.

II. Vermont Law on the Regulation of Children’s Products Containing Chemicals of High Concern to Children

On November 19, 2015, the State of Vermont approved a final rule that requires the reporting of certain chemicals of high concern (“CHCC”) in children’s products.  The law was originally enacted in June 2014 and was modelled on a similar law enacted by the State of Washington.

Children’s products include any consumer product marketed for use by, marketed to, sold, offered for sale, or distributed to children under the age of 12 in the State of Vermont. Children’s products specifically include: toys; children’s cosmetics; children’s jewellery; teething products; products to facilitate sleep, relaxation, or feeding of a child; clothing items for children; and child car seats.

Under the Vermont law, manufacturers of children’s products are required to submit a notice to the State of Vermont for each CHCC in a children’s product if the CHCC is intentionally added above a certain level or is present as a contaminant at a concentration of 100 parts per million or greater.

For each notice, manufacturers are required to pay a fee of $200. Failure to comply with the law may result in civil investigation by the Attorney General, discontinuance of any products at issue, and civil action.

Manufactures must begin submitting notices on July 1, 2016, with notices to be resubmitted biennially thereafter.

Please contact David J. Evan or Jamie L. Maguire should you have any questions regarding this issue or seek assistance in understanding labeling and advertising requirements.

• David J. Evan, Partner, New York, NY  | devan[at] | (212) 557-4000

• Jamie L. Maguire, Associate, New York, NY| jmaguire[at] | (212) 557-4000

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