In our previous post on Washington’s Children’s Safe Products Act, we focused on the Act’s reporting requirement. But the Act also contains provisions prohibiting the sale of children’s products containing certain chemicals above the following limits:

  • Lead: 90 parts per million (ppm)
  • Cadmium: 40 ppm; and
  • Phthalates in children’s products in excess of 1,000 ppm

Until the end of 2015, the industry understood these limits to be preempted.

Federal preemption

Congress passed the Consumer Product Safety Improvement Act around the same time as Washington enacted the Children’s Safe Products Act. The federal law contains restrictions similarto Washington’s Act, but with some differences:

  • Lead in all children’s products: 100 ppm in substrate and 90 ppm in surface coatings
  • Cadmium: not covered
  • Phthalates in children’s toys andchild care articles: 1,000 ppm

The state concedes

As a result of CPSIA limitations, the Washington Department of Ecology, tasked with implementing Washington’s Act, concluded that CPSIA preempted the lead, cadmium, and phthalate limits. The Department published a document withdrawing proposed rulemaking to implement the lead, cadmium, and phthalate bans, stating that:

The “Consumer Product Safety Improvement Act of 2008” amends the “Consumer Product Safety Act” and substantially preempts the standards for lead, phthalates, and cadmium …. Ecology elected not to pursue an exemption from this preemption because such a request would likely result in a protracted legal argument with marginal improvement in the safety of children’s products. This federal preemption precludes the need for the proposed rule because the purpose was to clarify how the lead, cadmium and phthalate standards apply to certain products.

However, the Department also found that CPSIA did not preempt the reporting requirement.

The Department echoed this statement in a July 2009 report to the Washington legislature, stating that the Department was “deferring to the CPSIA regarding use of lead, cadmium and phthalates in children’s products.”

Sea change on preemption

The Department’s deference to CPSIA continued until the end of 2015, when it abruptly reversed course with virtually no public notice.

In response to demands from the Washington Toxics Coalition, an NGO, the Department stated that it would begin enforcing the chemical limits in the Act that differ from CPSIA.

WTC reviewed data companies supplied to the Department under the reporting prong of the Act and determined that a number of the reports disclosed cadmium above 40 ppm and phthalates above 1,000 ppm in children’s products that were not toys or child care articles (and thus, not subject to CPSIA’s phthalate limits). The WTC sent a letter requesting that the Department take action, arguing that CPSIA does not preempt the Act as to cadmium and phthalates except in children’s toys and child care articles.

The Department stated that it would start investigating “apparent self-reported violations,” and would “require appropriate action on the part of these companies to correct verified violations” in order to meet state standards.

Future concerns

It is unclear where the Department’s enforcement will go from here. We have been unable to find any evidence of actual enforcement (civil penalties, settlements, etc.), and the Department has not issued any statements or guidance on this issue.

To the extent the Department’s current enforcement is based on self-reporting, that involves products sold in the state well before the Department gave any indication of its about-face (i.e., the reporting requirement covers products sold in the preceding 12 months). All companies can really do to react to the change is to revise existing specifications to incorporate the Washington compliance limits for cadmium and phthalates for future orders, or cease shipping impacted products to the state going-forward.