By Annys Shin
Washington Post Staff Writer
Monday, September 15, 2008
All children's products must meet a new, tougher lead standard by Feb. 10, regardless of when they were made, according to a legal opinion expected to be released today by the Consumer Product Safety Commission's general counsel.
The opinion, a copy of which was obtained by The Washington Post, represents the agency's official guidance to businesses. It allows companies to sell off their existing inventory of soon-to-be banned products through Feb. 10, including through exports.
After that, manufacturers and retailers will probably have to destroy products that don't comply with the new limit, said Gary Wolensky, a partner with Phoenix-based law firm Snell & Wilmer who represents companies in product-liability cases.
The new lead limit is part of a sweeping product safety measure that became law Aug. 14. The law stipulates that by Feb. 10, children's products can not have a total lead content above 600 parts per million. Six months later, that limit drops to 300 ppm and then to 100 ppm in three years if feasible.
The decision on whether the lead limit applies to existing inventory, written by CPSC General Counsel Cheryl Falvey, helps answer some of the questions that manufacturers and retailers have about what to do with products they made or purchased before Aug. 14. It also provides clarity for consumers who otherwise would have found it difficult to tell which toys met the new lower lead requirement and which did not.
The decision won't affect toys for sale this holiday shopping season.
"This holiday season is 'buyer beware,' " said Ed Mierzwinski, consumer program director for U.S. PIRG, a Washington advocacy group.
The new guidance from the CPSC is not likely to have huge impact on major makers of toys and children's products, such as Oak Brook, Ill.-based RC2, which recalled millions of Thomas and Friends toys for lead-paint violations. RC2 officials began clearing out any inventory that didn't meet the new limit before the law passed and don't expect to have any problems meeting the Feb. 10 cutoff. And Toys R Us spokeswoman Kathleen Waugh said products in the company's stores meet the new standard.
Companies such as clothing and electronics manufacturers, however, were caught off guard when Congress decided to apply the lead limit on products for children up to age 12, said Frederick Locker, an attorney who represents children's product manufacturers. Having already made spring 2009 products, the manufacturers and their customers may be stuck with large amounts of inventory that will soon be illegal to sell.
Locker called Falvey's interpretation of Congress's intent too narrow. Applying the new limit retroactively is likely to "do harm to the economy," Locker said, adding that companies may challenge Falvey's opinion in court depending on how the agency chooses to enforce it.
In addition to setting a stricter lead limit, the product safety law also boosts funding and authority for the CPSC and bans certain types of phthalates, a chemical in plastic that has been linked to reproductive problems. Manufacturers have the same questions about whether the phthalate provisions apply retroactively, and lawyers for businesses see the decision on lead as an indication of where the CPSC is likely to come down on phthalates.
Wolensky thinks the ban on certain phthalates could pose a bigger challenge than the ban on lead for the children's product industry, because more products contain them.
Locker disagreed, saying many toymakers have already begun using phthalate alternatives to comply with international standards and in response to policies by retailers such as Wal-Mart and Toys R Us, which have both pledged to phase out phthalates.