The U.S. Consumer Product Safety Commission (“CPSC”), by unanimous vote, has approved a final rule providing that seven plastics in children’s toys and child care articles will no longer require third-party testing because they do not exceed limits on phthalates.

The Consumer Product Safety Improvement Act of 2008 (CPSIA) bans children’s toys or child care articles containing concentrations above 0.1% of certain specified phthalates, and requires third-party testing to ensure subject products are in compliance before they can enter the stream of commerce in the United States. The new rule, which will be effective on September 29, 2017, provides that third-party testing of the following plastics is not necessary to ensure compliance with the CPSIA, because these plastics, with specified additives, do not contain concentrations above 0.1%:

• Polypropylene (PP)
• Polyethylene (PE)
• General Purpose Polystyrene (GPPS)
• Medium-Impact Polystyrene (MIPS)
• High-Impact Polystyrene (HIPS)
• Super High-Impact Polystyrene (SHIPS)
• Acrylonitrile Butadiene Styrene (ABS)

For companies that manufacture, distribute or sell children’s products, the new rule will substantially reduce the burden of third-party testing and certification.

Although third-party testing is not required, companies must still exercise due care to ensure that the products contain the exempt plastics, rather than other plastics that may not be exempt, and maintain records confirming how that determination was made.

In a related, but separate development, the Commissioners are scheduled to meet on October 11, 2017 to consider draft proposals regarding the phthalate bans that have been pending for several years. As a result of a consent agreement reached in litigation brought by the National Resources Defense Council against the CPSC, the agency must vote on the final rule by October 18, 2017. We will report the result of that vote and discuss its significance, so “watch this space!”

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