The State of Washington recently adopted an amendment to their Children’s Safe Products Act – Reporting Rulerequiring manufacturers of children’s products, under certain conditions and scenarios, to report Chemicals of High Concern to Children (CHCC) to the State. Whether you are a manufacturer that must report is determined by the size of your gross revenues and the “product tier(s)” you manufacture. The amendment is really quite simple, it merely revises the CHCC list by removing n-butanol from, and adding tris (1,3-dichloro-2-propyl) phosphate (TDCPP) to, the list of chemicals to be reported.
The bigger question is how many manufacturers even know they have a reporting requirement with the State of Washington. Do you? On November 22, 2013 the Revised Reporting Rule goes into effect and February 28, 2015 is the projected due date for first reports that must include tris (1,3-dichloro-2-propyl)phosphate (TDCPP).
Digressing for a moment, this reminds me of a meeting sponsored by the US Trade Representative’s office many years ago. As an officer of a global testing and certification company, my presence was requested to assist the USTR with regard to my understanding of US and other international product safety and systems standards. We would be meeting with a large delegation of representatives from the European Union. The subject was, in essence, how we could work together to globalize certain standards so that everyone would know and be able to meet the requirements.
Product standards should be intended to protect the public safety. However, many are perceived as speed bumps on the way to trading in other countries – they can be very effective walls to exclude products from a market. A European representative was not shy about this issue and asked about the complexities involved in federal and state requirements. In response, he was told that the federal requirements were a minimum, and that each of the 50 states had the right to set different requirements, of which three states at the time were known to take a very active role in setting their own. They were Washington State, Oregon and California (actually, the City of Los Angeles). Today there are many more, especially with regard to children’s products.
The European representative looked at the US delegation and exclaimed “you do this solely to keep out European products, to confuse us!” I replied, “No, that’s not the case. Indeed, it would be easier to fix the problems if that were so. The problem is that even US manufacturers are just as adversely impacted as the Europeans when there are state deviations in standards and requirements. They are just as confused and stymied as you!”
Reading about the Amendment to Washington State’s CHCC list, I was reminded, plus ça change, plus c’est la même chose (the more things change, the more they stay the same).
So, if you are manufacturing children’s products destined for sale in Washington State, here is what you need to know, in brief:
- Ensure that your compliance staff is familiar with the Children’s Safe Product Act, or retain someone to assist you with continuing compliance.
- Annual reporting is required to report the presence of any of 65 identified CHCC.
- Report regardless of whether the chemical serves a functional purpose or is a contaminant (impurity, byproduct, residual intermediate or ultimate degradation of the product).
- Determine the Tier of Children’s Products you manufacture:
- Tier 1 – products intended to be put into a child’s mouth or applied to the children’s body, or any mouthable product intended for children age 3 or under.
- Tier 2 – products intended to be in prolonged (more than 1 hour) direct contact with a child’s skin (such as, clothes, jewelry, bedding).
- Tier 3 – children intended for short periods of direct contact (such as, many toys).
- Tier 4 – product components not expected to come into direct contact with the child’s skin or mouth. In general, no reporting is required for this category but this is subject to change, based on a case-by-case evaluation.
- Determine which category you, as a manufacturer, fit by aggregate gross sales both within and outside of Washington (and do so each year):
- Largest - > $1 billion
- Larger – > $250 million
- Medium – > $100 million
- Small – > $5 million
- Smaller – > $100 thousand
- Tiny - < $100 thousand
- The presence of a CHCC does not necessarily mean that the product is harmful to human health or there is a violation of existing safety standards. However, best to know which it is which before reporting.
- Reporting requirements are being phased in over a period of years, as indicated by the graph below, taken directly from the legislation: The Rule was became effective August 21, 2011, so, by way of example, the Largest manufacturers were required to start reporting on August 31, 2012 only for Tier 1 children’s products; and, by August 31, 2013 were required to report on both Tier 2 and Tier 3 products. The rollout of the reporting requirements extends through 2018.
- If your company is required to report, it can do so with the Department of Ecology, State of Washington, Children’s Safe Product Act Application.
You may well be wondering why the Consumer Product Safety Improvement Act (CPSIA) of 2008 didn’t render Washington State’s CPSA obsolete. Washington State admits that its own law, concerning limits for lead, cadmium and phthalates allowed in the State of Washington after July 1, 2009, was substantially preempted with the enactment of the CPSIA. Like many states, however, they take the position that they will take enforcement action against manufacturers of any product that is not compliant with State standards (the implication that they will be the same as the federal standards). Further, if the State standard is higher than the federal standard, they will request action by the Consumer Product Safety Commission, with an implication that they will enforce it in the meanwhile. Further, when it comes to the CHCC list, the State of Washington takes the position that this is not affected whatsoever by the federal law, ostensibly because it is not in conflict with it.
Our federal and state product safety systems. Not easy for manufacturers – local, regional, national or global.