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Washington State Issues Guidance on Toxic Metal Restrictions as Additional States Consider Potential Legislative Action

The Washington State Department of Ecology has issued a guidance document outlining how it intends to enforce the current state limits on lead, phthalates and cadmium. State law prohibits manufacturers, wholesalers and retailers from knowingly selling, offering for sale or distributing a children’s product or product component containing (i) more than 0.009 percent by weight (90 parts per million) of lead; (ii) more than 0.004 percent by weight (40 ppm) of cadmium; or (iii) more than 0.1 percent by weight (1,000 ppm) of phthalates, either individually or in combination.

The term “children’s product” includes toys; children’s cosmetics; children’s jewellery; any product designed or intended by the manufacturer to help a child with sucking or teething, to facilitate sleep, relaxation or the feeding of a child, or to be worn as clothing by children; and child car seats. The term “children’s jewellery” covers jewellery that is made for, marketed for use by, or marketed to children under the age of twelve, while the term “children’s cosmetics” covers articles made for, marketed for use by, or marketed to children under the age of twelve that are intended to be rubbed, poured, sprinkled or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance, as well as articles intended for use as a component of such an article, but does not include soap, dietary supplements, or food and drugs approved by the U.S. Food and Drug Administration.

Excluded from the definition of “children’s product” are batteries; slings and catapults; sets of darts with metallic points; toy steam engines; bicycles and tricycles; video toys that can be connected to a video screen and are operated at a nominal voltage exceeding 24 volts; chemistry sets; consumer electronic products, including personal computers, audio and video equipment, calculators, wireless phones, game consoles, and hand-held devices incorporating a video screen, used to access interactive software and their associated peripherals; interactive software intended for leisure and entertainment such as computer games and their storage media (e.g., compact disks); BB guns, pellet guns and air rifles; snow sporting equipment, including skis, poles, boots, snow boards, sleds and bindings; sporting equipment, including bats, balls, gloves, sticks, pucks and pads; roller skates; scooters; model rockets; athletic shoes with cleats or spikes; and pocket knives and multi-tools.

The federal Consumer Product Safety Improvement Act imposes its own limits on lead, certain phthalates and cadmium, among other substances, in certain categories of children’s products. Federal law also prohibits the enforcement of any state safety regulation that prescribes content limits on the same consumer product as the federal limit and for the same risk or injury associated with such consumer product, unless the state regulation is identical to the federal standards. In light of these requirements, where a children’s product is covered by the CPSIA for a particular constituent the Department of Ecology will generally refer the matter to the Consumer Product Safety Commission. On the other hand, where the children’s product is covered by the state limits but not by a limit under the CPSIA, the Department of Ecology will enforce the state limits.

The guidance document indicates that the limits adopted by Washington State on lead, phthalates and cadmium are generally more stringent than the CPSIA limits. Therefore, for those consumer products to which a federal standard for lead, phthalates or cadmium applies the Washington standard for that constituent is pre-empted and cannot be enforced. However, Washington State’s limits on lead, phthalates and cadmium in children’s products apply to a broader range of consumer products than are covered by the federal limits on those constituents. For those children’s products that are covered by the Washington State standards but not by federal standards, the Department of Ecology intends to enforce the applicable state standards. The agency will use the following analysis to determine whether to enforce the applicable state limits.

  1. the Department of Ecology will first determine whether the product meets the definition of “children’s product” as defined in the Children’s Safe Products Act at RCW 70.240.010
  2. the agency will then determine whether the federal limits on lead, cadmium or phthalates apply to the product in question. If the product in question is within the RCW 70.240.010 definition of “children’s product” but is not a product to which the federal standard for the substance in question applies, then the Department of Ecology may enforce the state standard with respect to that product.

The guidance document notes that there are some important categories of “children’s products” that remain subject to the state limits on lead, cadmium and phthalates when offered, sold or distributed for sale or use in the state of Washington. While there is considerable overlap between the products covered by the federal and state lead limits, the definitions are not identical. For example, car seats are not covered by the federal lead limit but are expressly covered by Washington law.

In the case of cadmium, federal law incorporates ASTM F963-11, Standard Consumer Safety Specification for Toy Safety, which includes a limit of 75 ppm by weight of cadmium (using a specified digestion method) in the surface coating or accessible substrate of toys intended for use by children under 14 years. Washington State’s 40 ppm limitation on cadmium applies to a broader range of products, including clothing, footwear, jewellery, child care articles and cosmetics (other than cosmetics that are not part of a toy). Washington State’s restrictions on phthalates also apply to a broader range of items, including cosmetics, clothing and footwear.

In other state news, Safer States, a network of diverse consumer organisations and coalitions with shared environmental and health concerns, recently issued a press release highlighting on-going legislative and other policy efforts at the U.S. state level to prohibit or regulate more strictly the sale and distribution of products containing hazardous chemicals. This organisation expects a broad range of states to take action this year to address pressing issues related to high-concern chemicals, toxic flame retardants, lead, cadmium, formaldehyde, anti-bacterial agents and bisphenol A, as summarised below.

  • At least 12 states (Alaska, California, Illinois, Maine, Massachusetts, Michigan, Minnesota, New York, North Carolina, Rhode Island, Vermont and Washington) are expected to consider policies this year to identify, phase out and/or require makers of consumer products to disclose  chemicals of concern.
  • At least 14 states (Alaska, California, Connecticut, Delaware, Maine, Massachusetts, Minnesota, North Carolina, New York, Ohio, Rhode Island, Tennessee, Washington and West Virginia) and the District of Columbia will likely consider policies to phase out the use and/or require labelling of toxic flame retardants in certain consumer products.
  • At least 10 states (California, Illinois, Massachusetts, Maryland, Michigan, Minnesota, New Jersey, New York, Vermont and Washington) are likely to consider policies to address lead in children’s products, packaging, crumb rubber, electronics and other products.
  • At least eight states (Massachusetts, Maryland, Maine, North Carolina, New Jersey, New York, Pennsylvania and Rhode Island) are expected to address legislatively or otherwise BPA in children’s products, food packaging and other products.
  • At least six states (California, Illinois, Minnesota, New Jersey, New York and Washington) could consider restrictions on cadmium in electronics, children’s products and other products.
  • At least five states (Arizona, New Jersey, New York, Rhode Island and South Carolina) are likely to consider restrictions on formaldehyde in everything from children’s products to cosmetics.
  • At least three states (Iowa, Illinois and New York) will possibly consider restricting the anti-bacterial agents triclosan and triclocarban in personal care products.
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