07 Aug 2014

On July 28, 2014, the CPSC Chronic Hazard Advisory Panel released its highly anticipated report on the use of phthalates in toys and children’s products.

Overview: A Chronic Hazard Advisory Panel (CHAP) established in 2008 by the Consumer Product Safety Improvement Act (CPSIA) and overseen by the U.S. Consumer Product Safety Commission (CPSC) recently released its long-anticipated "Report on Phthalates and Phthalate Alternatives." (Phthalates are generally used to make plastics more pliable and also have other consumer and industrial applications.) This Report is expected to have consequences not only with regard to the CPSC regulation of toys and child care articles (products like teething rings and other infant/toddler products intended to help facilitate eating, sleeping, teething, etc.), but it may also impact regulatory action by other federal agencies and the states, which have been moving to limit and/or require reporting of a growing list of chemicals in children's and other products.

Background: The CPSIA permanently banned three phthalates (used primarily to soften plastics) in toys and child care articles in excess of 0.1% (1,000 parts per million): dibutyl phthalate (DBP), butylbenzyl phthalate (BBP) and di(2-ethylhexyl) phthalate (DEHP); and banned three others on an "interim" basis, pending review by the CHAP: diisononyl phthalate (DINP), di-n-octyl phthalate (DNOP) and diisodecyl phthalate (DIDP). The law also directed the CHAP to review "other phthalates and phthalate alternatives" for possible banning by the CPSC.

Report: The CHAP report recommends that the CPSC:

  • continues the permanent ban for DBP, BBP and DEHP in toys and child care articles;
  • lifts the interim ban on DNOP and DIDP;
  • continues the interim ban on DINP;
  • institutes a new ban (limit of 1,000 ppm) in toys and child care articles for the following phthalates: diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate (DHEXP), and dicyclohexyl phthalate (DCHP);
  • and other appropriate federal agencies consider regulating a number of other phthalates and phthalate alternative chemicals, especially the Food and Drug Administration (FDA) since the CHAP found that most human exposure to these substances is via food/food storage.

Next Steps: The CPSC is required to issue a proposed regulation either adopting or rejecting the CHAP's recommendations within six months, although the agency could take longer. It is generally anticipated that the current commission is likely to adopt at least some of the CHAP's recommendations, which could translate into new requirements for toys and child care articles sold in the U.S. within one to two years. The regulatory process is expected to be strongly debated between consumer advocacy and industry groups. One of the key issues is expected to be whether the CPSC in fact has the authority to ban phthalates that the CHAP Report admits may only have a "cumulative" contribution to negative human health effects like hormone production, since the agency generally must make hazard findings about specific substances or products in order to declare them "banned hazardous substances."

Long-Term Impact: In addition to the continued ban of the widely used DINP and the ban of four additional phthalates in toys and child care articles, the Report may also have longer-term consequences for a host of other products, including possible bans and/or reporting requirements for additional phthalates and alternatives highlighted in the report in some states and for all children's products; the prospect for additional Prop 65 product warning and/or "Green Chemistry" product listing in California; and potential action by the FDA and/or states to ban phthalates in other products and applications, including food storage containers and wraps, cosmetics, drugs and medical devices.

A copy of the full CHAP Report and related documents may be found at: https://www.cpsc.gov/chap

Intertek will continue to closely monitor this and related developments and, as always, is available to assist you in fully evaluating your products for all US and international regulatory compliance.

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