CPSC Office of General Counsel Suggests that Companies Aggrieved by Retroactive Application of New Lead Limits to Inventory Petition the Commission for Relief; Phthalates Ban Does Not Apply Retroactively to Inventory
In September 2008, shortly after the Consumer Product Safety Improvement Act of 2008 (CPSIA) was enacted, the Consumer Product Safety Commission Office of General Counsel (OGC) issued an opinion concluding that the more restrictive lead limit mandated by Section 101 of the CPSIA applies retroactively to inventory and product on shelves as of the February 10, 2009 effective date. In other words, after February 10, 2009, it will be considered a violation of the CPSIA to sell from inventory or store shelves any product designed or intended primarily for children 12 or younger that contains more than 600 ppm of lead, regardless of whether the product was made, imported, or distributed prior to the enactment of the CPSIA. The opinion was based on reasoning that the CPSIA makes it unlawful to make, import, distribute, sell or offer to sell any consumer product that is “a banned hazardous substance” under the Federal Hazardous Substances Act, and lead is “a banned hazardous substance.”
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