The Phthalate Conundrum
Pending final guidance, caution is key
By Fred Mills-Winkler -- Gifts and Dec, 11/1/2009 12:00:00 AM
On February 10, 2010—one year after the original deadline—it will be time to face the music on the third-party phthalate testing provisions of the Consumer Product Safety Improvement Act of 2008. Yet questions remain about how to deal with the requirement, including two major concerns that will not only affect manufacturers and importers but also shape retailers’ protocols about what they will and will not accept.
First, should products be tested only for the six phthalates covered by the CPSIA mandate, or should testing also cover di-n-hysl phthalate (DnHP), a seventh substance that was the subject of a little-known legal case in California involving modeling clay? Vendors and retailers are free to decide on the “seventh phthalate,” but the decision may determine whether or not a given item can be sold in California without legal ramifications.
Second, must phthalate testing include inaccessible product parts like the guts of a ball, or can it be limited to surface components in light of the fact that the major phthalate-related health threat to children involves ingestion of the outlawed substances via direct mouth contact?
As of this writing, the Consumer Product Safety Commission had not ruled on that issue, leaving manufacturers and retailers with a Hobson’s choice: either pay the significant extra cost for testing even inaccessible parts, or test only surface parts and hope the CPSC approves.
ABCs of phthalates
As even Santa’s elves undoubtedly know by now, phthalates are industrial chemicals used to soften plastics and to bind fragrances in cosmetics, including baby lotions, soaps and shampoos. Section 108 of CPSIA bans the sale of toys and child care articles containing more than 0.1 percent of six different phthalates—three for all toys, three only for those that can be taken into the mouth—because of concerns about potential adverse effects on child development and reproductive systems.
Third-party testing for these substances and associated issuance of General Conformity Certificates by CPSC-approved laboratories were originally mandated by February 10, 2009. Ten days before that deadline, however, the CPSC responded to industry concerns over the short timeline and lack of specific guidance on scores of compliance issues by issuing a one-year stay of enforcement.
In September, the CPSC cleared up some of the confusion with the release of a new policy governing phthalate testing procedures. Instead of requiring that an entire toy or child care article be tested, including metal and other non-plastic parts that cannot contain phthalates, the Commission indicated that testing can be limited to those components with potential phthalate content.
The new policy will not only dramatically reduce industry costs but also prevent the risk of phthalate exposure in a toy that meets the 0.1 percent limit even if a given part exceeds that threshold. A large wooden pull toy, for example, might pass muster in a whole-toy test even if a plastic pull handle that a child might suck or lick registered off the Richter scale (figuratively speaking) in one of the forbidden chemicals. Component testing will single out the offender and do a far better job of keeping children safe.
Still, a number of issues remain on the table. Two of the biggest are these:
Question 1: DnHP
In 2007, almost a year before CPSIA was signed into law, the California-based nonprofit Center for Environmental Health filed a complaint under that state’s Proposition 65 about a brand of modeling clay that contained the phthalate DnHP. Proposition 65 regulates substances listed by California as causing cancer or birth defects or other reproductive harm by imposing penalties as well as requiring a warning label about the health hazards.
The manufacturer claimed to have stopped using DnHP or any other phthalate and agreed to provide proof of reformulation, eliminating the need for a warning label. But the consent judgment issued in the San Francisco Superior Court in September 2007 included a provision prohibiting the defendant from manufacturing, distributing, shipping or selling any product containing DnHP in the state of California.
While DnHP is not one of the six phthalates covered by CPSIA, the case establishes a precedent indicating that products to be sold in California should be tested for the chemical to protect against similar complaints and associated fines. Manufacturers, importers and retailers who want to sell in the California market therefore may want to consider adding DnHP to their CPSIA phthalate testing regimen. It adds virtually no cost, but the third-party lab needs to know before running the tests.
Question 2: Inaccessible parts
The second pressing issue is whether the parts of a toy that are inaccessible to a child need to be included in the phthalate testing process.
Industry interests have asked the CPSC for an exemption, based on arguments that no such testing is required for lead content and that children cannot ingest phthalates from a piece of plastic buried inside a toy. The CPSC’s decision on the issue will have a major impact on testing costs.
Unlike lead testing, where an X-ray fluorescence (XRF) spectrometer can be used to quickly determine whether a plastic material might contain lead, no such shortcut is available for phthalate testing. The product must immediately be broken down into its component parts for a series of chemical tests. The fewer parts that must undergo this chemical analysis, the lower the testing cost.
Until the CPSC issues an opinion on the inaccessible parts issue, however, the onus is on manufacturers and importers to know whether materials used in their products contain phthalates or to have all components tested to protect themselves.
Advice for retailers
Although compliance with the CPSIA phthalate restrictions is the responsibility of the manufacturer/importer, the retailer is at risk as well—and not just if he is the importer. If the product supplier does not provide the appropriate certifications, the retailer will suffer from lost sales and recall management.
It’s a classic case of 'Buyer Beware’—but in this case, the buyer is the retailer.
We would love your feedback!
-
Safe, Safer, Safest ... .. And Even More Safe
Feb 25, 2012 -
Getting the Lead Out
Mar 1, 2010 -
Component Testing Pitfalls
Feb 1, 2010 -
The Line on Lead Testing
Apr 1, 2009
VIEW ALL GALLERIES
