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CPSC Proposes to Exempt Certain Plastics in Toys from Third-Party Testing for Phthalates

The Consumer Product Safety Commission is proposing to adopt a determination that four types of plastics with specified additives do not contain certain phthalates whose use in children’s toys and child care articles is currently prohibited or may soon be prohibited. Based on this determination, the plastics with specified additives would not require third party testing for compliance with the mandatory phthalate prohibitions on children’s toys and child care articles. Interested parties may submit comments on this proposal by 31 October.

Section 108 of the Consumer Product Safety Improvement Act of 2008 prohibits children’s toys and child care articles that contain six specified phthalates (DEHP, DBP, BBP, DINP, DIDP and DnOP) in concentrations above 0.1 percent in accessible plasticised component parts and other component parts made of materials that may contain phthalates. The CPSC has since proposed to make the interim prohibition on DINP permanent, lift the interim prohibitions on DIDP and DnOP, and add four other phthalates to the prohibited list (DIBP, DPENP, DHEXP and DCHP), but those actions have not yet been finalised.

Section 14(a) of the Consumer Product Safety Act, as amended by the CPSIA, requires manufacturers of products subject to a consumer product safety rule or similar rule, ban, standard or regulation enforced by the CPSC to certify that the product complies with all applicable CPSC-enforced requirements. For children’s products, certification must be based on testing conducted by a CPSC-accepted third party conformity assessment body. Accordingly, children’s toys and child care articles subject to the limits for phthalates require third party testing for compliance with those limits before the manufacturer can issue a children’s product certificate and enter the children’s toys or child care articles into U.S. commerce.

Public Law 112-28 of August 2011 directed the CPSC to seek comment on opportunities to reduce the cost of third party testing requirements consistent with assuring compliance with any applicable consumer product safety rule, ban, standard or regulation. It also authorised the Commission to issue new or revised third party testing regulations if it determines that such regulations will reduce third party testing costs consistent with assuring compliance with the applicable consumer product safety rules, bans, standards and regulations. To that effect and among other initiatives, the CPSC asked the Toxicology Excellence for Risk Assessment to conduct research on phthalates and prepare two reports with its findings. Based on this research, CPSC staff concluded that very little information exists indicating that manufactured polypropylene, polyethylene, high-impact polystyrene and acrylonitrile butadiene styrene plastics could contain any of the phthalates currently prohibited or the phthalates that may be prohibited under the previously referenced proposed rule. In addition, no evidence was found that these phthalates are present at concentrations above 0.1 percent in any of the four plastics (either virgin or using recycled material) for consumer products, especially children’s products.

As a result, the CPSC is proposing to determine that these four plastics, with any of the additives set forth below, comply with the phthalate prohibition and thus are not required to be third-party tested to assure compliance.

  • polypropylene with plasticisers polybutenes, dioctyl sebacate, paraffinic oil, isooctyl tallate, mineral plasticising oils and polyol; hydrocarbon solvents; catalysts; fillers; nucleating agents; primary and secondary antioxidants; neutralising agents; anti-static agents; slip agents; metal deactivators; quenchers; UV stabilisers; flame retardants; blowing or foaming agents; anti-blocking agents; lubricants; or colourants
  • polyethylene with plasticisers glyceryl tribenzoate, polyethylene glycol, sunflower oil, paraffin wax, paraffin oil, mineral oil, glycerine, EPDM rubber and EVA polymer; catalysts; initiators; promoters; anti-static agents; fillers; flame retardants; anti-blocking agents; slip agents; blowing agents; cross-linking agents; antioxidants; carbon black; or colourants
  • high-impact polystyrene with catalysts; internal lubricants; chain transfer/transition agents; stabilisers; diluents; colourants; aluminium chloride, ethyl chloride, hydrochloric acid; iron oxide, potassium oxide, chromium oxide; or bifunctional peroxides
  • acrylonitrile butadiene styrene with the plasticisers phosphate esters, long chain fatty acid esters and aromatic sulphonamide; hydrocarbon solvents; stabilisers; lubricants; antioxidants; molecular weight regulators; initiators/catalysts; activators; emulsifiers; or colourants

The CPSC notes that the proposed determination would only relieve a manufacturer’s obligation to have the specified plastics and accompanying additives tested by a CPSC accepted third party conformity assessment body. Children’s toys and child care articles must still comply with the substantive phthalate content limits in section 108 of the CPSIA regardless of any relief on third party testing requirements. Should the CPSC issue a final rule making the interim prohibition on DINP permanent and adding DIBP, DPENP, DHEXP and DCHP to the prohibited list before finalising the proposed exemptions, it would modify the exemptions to cover the same phthalates restricted by the final phthalates rule.

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