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 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.
Increased
penalties
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 CPSC 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.
Funding
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.
CPSC
staffing
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.
Other provisions
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.
Assessment
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.
Our assessment is
posted as an email in response to a CPSC request for comments.
In brief, 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.
More on CPSIA