Updated Toy Safety Standard takes Effect June 12. New Tests Required!

If you import children’s toys, or if you’re a promotional products supplier with children’s toys in your line, effective tomorrow you’ll need to comply with an update to the mandatory Federal Toy Safety Standard.  Among other changes, this revision (ASTM F963-11) adds limits for the soluble amount of eight metals (antimony, arsenic, lead, barium, cadmium, chromium, mercury, and selenium) permitted in toy substrates.  The change is effective for toys manufactured or imported after June 12, 2012 for children 14 years of age or younger.

The ASTM F963 Toy Safety Standard used to be voluntary.  But in 2008, the Consumer Product Safety Improvement Act (CPSIA) made ASTM F963 a mandatory standard.   At that time, the current version of the Toy Safety Standard was F963‑07 with the “07” signifying the year that the latest revision was adopted.  Since then, CPSC has voted to adopt two newer revisions – one issued in 2008 and the latest in December 2011.  In February 2012, the Commission announced in the Federal Register its decision to adopt ASTM F963-11 effective as of June 12, 2012.

For the moment, the law requires you to comply with every provision of the new standard – including the 2011 changes – but doesn’t require you to use a CPSC certified third-party lab to test for the 2011 changes.  The reason is that the Commission has not yet voted to adopt recently proposed rules for third party laboratories which it published in the Federal Register on May 24, 2012.  Comments on these proposed rules are not due until August 7, 2012.

If you have another reliable way to verify compliance for the F963-11 changes—perhaps by testing with an XRF instrument—you could avoid, until CPSC adopts the new rules, the cost of testing the 2011 updates at a third-party lab.  However, this waiver only applies to the F963-11 changes.  You’ll still need a test from a CPSC certified third-party laboratory for the portions of ASTM F963-11 that are “functionally equivalent” to F963-08.

The risk of third-party testing now for the new requirements of F963-11 is that when the proposed rules are finally adopted by CPSC, the lab you choose may not be accredited for the new requirements and you will have to retest at an approved lab.  In my opinion, this is a very minor risk compared to the risk of not having an independent test confirming that your toy complies with the new requirements.

CPSC addressed this in an FAQ on its website:

In the event that a manufacturer or importer wishes to have its products tested now – in the hope that testing to the -11 version eventually will be accepted by the CPSC – that manufacturer or importer should check with its current CPSC-accepted laboratory to see if they will be applying to the CPSC for acceptance of the -11 version. If so, and if the lab satisfies other conditions spelled out in the draft document, then the Commission likely will accept that testing upon its approval of the new Notice of Requirements. (This is not a guarantee of the Commission’s action, but the Commission traditionally has permitted acceptance of such testing, provided that all the other conditions are satisfied.)

It’s always a treacherous scenario in our industry when the law requires strict compliance with a set of standards but doesn’t require third-party testing.  For one thing, it places an extra burden on distributors – to verify that the toys they’re purchasing are compliant with the new standard if the supplier or factory does not have a third party lab report verifying compliance.

My advice is to not buy any toy that is imported or manufactured after June 12, 2012 unless you get a report from well-known third-party laboratory verifying compliance with all the provisions of ASTM F963-11.

For promotional products distributors who maintain test reports in their files of children’s toys they order frequently, or for those who have children’s toys in company stores or in other co-op programs, be sure to go back to your supplier for an updated test report.

The full text of the FAQ from the CPSC website can be found at http://www.cpsc.gov/info/toysafety/plain.html

Compliance is Not Enough for Safe Promotional Products

If attendance at ICPHSO’s 2012 Annual Meeting and Training Symposium is any indication, then the promotional products industry should feel proud of the strides it is making in product safety awareness.  From scant industry attendance just four years ago, this year’s symposium, held earlier this month in Orlando, had strong participation by PPAI, by QCA, and by at least a dozen major promotional products suppliers and distributors.  But while progress is encouraging, the workshops at ICPHSO made clear that product safety is much more than test reports and CPSIA compliance.

ICPHSO is an acronym for the International Consumer Product Health and Safety Organization.  It is the preeminent International product safety organization and is comprised of accomplished compliance professionals from all over the world – manufacturers, retailers, government regulators, attorneys, testing labs, standards developers, academia and consumer advocates.  Chances are, if you’re selling promotional products to a major corporation, its product safety team participates in ICPHSO.  More than 600 attendees made the pilgrimage to Orlando this year to share their knowledge, to learn from their peers, to network with like-minded colleagues and to mingle with government regulators from countries around the globe.

This year’s major topic was manufacturing and the challenges of producing safe and compliant products consistently in factories all over the world.  Traceability and supply chain transparency was a common theme in several presentations.  It was comforting to hear that even the largest companies struggle with this issue just as many importers do in our industry.  Jennifer Weaver, Director of Quality Assurance at Under Armour, noted that while she closely supervises Under Armour’s factories, her company does not even attempt to trace production from suppliers of items such as buttons, zippers and seams.  The consensus seemed to be that each manufacturer/importer must develop a plan based on a risk assessment of its own particular products.

While most product safety initiatives in the promotional industry are focused on compliance – CPSIA, FDA, Prop 65 and similar regulations – ICPHSO has always taken a deeper approach to consumer product safety.  Several experts spoke of the importance of avoiding product related injuries by building in safety from the beginning – by designing out safety defects at the product development stage and by considering the foreseeable abuse and misuse of a product as well as its intended use.   Another important topic focused on the importance of recall preparedness – having a well-practiced plan in place for the inevitable situations where unsafe products are discovered after a product goes to market.  Time is always of the essence in such cases, including the obligation to report to CPSC.  One of the most impressive presentations of the week was by Jennifer Thompson of Costco who explained the sophistication, speed and effectiveness with which Costco implements recalls and notifies customers who have purchased recalled products.

So while we should be proud as an industry of the product safety strides we are making – through PPAI’s Product Responsibility Action Group (PRAG), through QCA, and through individual company initiatives – the ICPHSO presentations illustrate how product safety has to become part of the culture of all industry participants if we’re truly to protect our industry.  For example, how many promotional products are imported without a formal risk assessment or without evaluation for product safety hazards?  In some cases these tests can seem unaffordable but the risk of not testing can be even more expensive.  A few years ago our product development team was considering a spa kit for our line – one that contained a variety of aloe-type skin creams and lotions.  The kit would have sold for less than $10.  In performing our risk assessment we asked a well-known cosmetics lab to verify that the lotions were of the quality that the Asian factory contended and that they did not contain any harmful ingredients or toxins.  The lab quoted $28,000 for the tests.  This may be a normal cost for a major cosmetics company but for most of our industry it isn’t a reasonable value proposition, particularly when the supplier has no idea if the product will even sell.  Accordingly, we did not add the spa kit to our line.  Now this week, in an unrelated case, the FDA has issued a dire warning about dangerous levels of poisonous mercury found in a variety of imported skin creams and antiseptic soaps or lotions found in at least seven states.  Just imagine how this could have impacted our industry if these poisonous lotions had been purchased through a promotional products distributor and given away in a spa kit by a major corporation.

So given the practical and realistic resources of most companies in the promotional products industry what can importers do to ensure that the products we are selling are not only compliant but also truly safe?  Here is a good starting list:

1)     Appoint someone in your company as product safety lead.  Send that person to product safety training such as a class offered by a major testing lab or the Certificate in Product Safety Management program offered by Saint Louis University.   Your designee should develop and implement a risk assessment process, maintain your product safety documentation and act as the point person if your company is ever involved in a recall.  Once these basic processes are in place, take the initiative to the next level.  Develop a comprehensive quality manual for all of your supply chain standard operating procedures and also develop a recall preparedness plan.

2)     As a supplier, manufacturer or importer, perform a basic risk assessment before adding any product to your line or before ordering it for your customer.  Even without independent testing, much can be done to minimize risk and promote safety.  Evaluate how well the product is constructed, the quality of materials, whether it will shatter when dropped, if it has sharp edges, choke or bite hazards as well as other foreseeable risks. Obtain a bill of materials for the product and identify any potentially hazardous materials or components.  Subject the product to reasonable use and abuse testing even if you have to test it yourself and be sure to consider the foreseeable misuse of the product, particularly by children.

3)     Test the product to simulate how well it performs.  If it is a bag, for example, how much weight will it bear reliably before the fabric, seams or straps give way.   Are there embellishments like buttons, grommets, labels, labels or hooks?  If so, how securely are they fastened?  If they break off will any sharp edges remain?  Is there any chrome or electroplating?  Is the quality high enough that it won’t peel or curl leaving knife like edges?

4)     Investigate whether the product, its components or its packaging is subject to any state or Federal regulation.   In addition to CPSC regulation, many promotional products are also regulated by the FDA, including hand sanitizer, first aid kits, sunglasses and food contact materials such as drinkware.  If the product is regulated be sure you have current (within a year) third party tests showing that the product complies with all of the regulatory requirements of current law.

5)     Consider identifying products in your line that contain toxins.  BPA, lead, phthalates and cadmium have all come under scrutiny by Congress, by CPSC, and by FDA but are still allowed by law for most products.  Some of your customers or your customer’s customer may have policies against purchasing products containing these substances.  An alternate idea is to identify the products in your line that are lead free, phthalate free, cadmium free and BPA free and note this in your catalog, advertisements and on your web site.

6)     Determine if any special labeling is required to warn against any hazards, to note any stress limits and to identify the appropriate age for the product.

This is certainly not a comprehensive list but it’s a good start and would go a long way to raising the bar for product safety in the promotional products industry. In the months ahead, PRAG will be working towards proposing a similar suite of “best practices” for product safety that all industry participants can rally around.  The more that all of us do to promote product safety – compliant products and safe products – the more we do to protect our clients and our livelihood.

(To learn more about ICPHSO and its programs, visit www.ICPHSO.org)

Loopholes in Product Safety Law Put Compliance Burden on You

You sell a product to a Little League for distribution to seven year olds.  Would your client expect the product to comply with Federal children’s product standards?

The answer, I suspect, is a resounding “yes” just as you would expect the toys you buy for your own kids to be able to pass the Federal Toy Safety Standard and the food you purchase to be able to pass FDA food standards.

Unfortunately for the promotional products industry, things are not that simple.  The Consumer Product Safety Improvement Act (CPSIA) – the Federal law that governs children’s products – includes a basic definition for children’s products that is ambiguous at best.  The agency that enforces this Act, the Consumer Products Safety Commission (CPSC), came up with an enhanced definition that introduces new issues as it tries to clarify the original.  Take the case of a simple water bottle destined for a second grade Little League team.  If the name of the team is imprinted in a plain type style the bottle is considered a general use item – not a children’s product – because CPSC says it appeals to all ages including the 7 year old Little Leaguers.   Most importantly, general use items don’t have to comply with children’s product standards.   But the identical water bottle decorated with a Winnie the Pooh type character – something that would only appeal to the young children – is considered a children’s product and has to comply with the CPSIA standards.  Same bottle.  Same kids.  Different decoration.  One has to comply, one doesn’t.

Say that your order was for the plain type version – the one that doesn’t have to comply with CPSIA.  And say that the plastic lid of the bottle you sell the Little League happens to contain 1,000 parts per million (ppm) of lead – 10 times the CPSIA limit for children’s products.  Now imagine that some consumer advocacy group gets hold of one of those bottles, tests it and then tells the league it intends to send a press release to the media that Little League is distributing lead-laden bottles to seven year olds.  Do you think the league administrators or the parents would be comforted or placated by your explanation that the product is a general use item that doesn’t have to comply with children’s product standards?  Not likely.

One reason for these challenges in our industry is that most promotional products are not “children’s products” as blank, undecorated products.  Non-children’s blanks only become children’s products if they are decorated with a juvenile design and even then only if the products are “mainly” for children 12 and under and have declining appeal to older kids.

Suppliers deal with this blanks-that-could-become-children’s-products challenge individually.  Some test all of their products to children’s product standards, some indicate on their websites the specific products which have been tested and for some you may have to make a call to find out which products are compliant and have been tested.    The most important point is that the burden is on you to find this information out before you place your order, to avoid selecting a product which has not been tested as compliant.

In summary, when kids are part of the audience for the products you sell, my advice is to ignore the loopholes in CPSIA and insist on choosing products that have been tested by a third party lab as compliant with children’s product regulations.    Just keep reminding yourself, “If children are involved, would my client expect the products I’m recommending to have been tested to children’s product standards?”  Let that be your guide and you’ll never go wrong.