This week we turn from federal law to the patchwork of state laws that cropped up due to TSCA’s failures. First up is Washington’s green chemistry law: the Children’s Safe Products Act. The CSPA requires manufacturers of children’s products sold in Washington to file a report with the state if their product contains certain chemicals. The report includes information on the chemical, its function in the product, and its location. Reports are publicly available. The state Department of Ecology implements and enforces the Act.
The CSPA does not define “children’s product,” but provides that covered product categories include toys, children’s cosmetics and jewelry, and child car seats. The law excludes batteries, slings and catapults, dart sets, and bicycles, and several other categories. A product must be intended for children under twelve years old to be covered (but not only those “primarily intended and designed” for 12-year-olds).
Chemicals of High Concern to Children
The reporting requirement applies if any children’s product contains certain high priority chemicals, termed “Chemicals of High Concern to Children.” There are 66 CHCCs, most of which are common to existing chemicals management regimes, like Prop 65 (lead, phthalates, formaldehyde, other heavy metals).
The Act defines “manufacturer” broadly to include the producer, importer, and domestic distributor of a children’s product. It expressly excludes retailers acting solely as retailers. The Department has issued guidance on determining reporting responsibility. The domestic manufacturer is first in line, with the domestic brand holder and importer/domestic distributor following, in that order.
Trigger for reporting
Children’s products containing intentionally added CHCCs above the lowest possible detection level must be reported. Children’s products containing more than 100 ppm of any CHCC due to contamination must also report. There is an exemption for manufacturers that employ a manufacturing control program and exercise due diligence in attempting to prevent contamination.
Reports must identify the following information and be submitted through the Department website:
- Product category
- CHCC Location
- CHCC Function
Annual reporting deadlines are tied to company size and children’s product type. The first deadline, which occurred on August 31, 2012 and annually thereafter, applies to companies with gross sales in excess of $1 billion that sell in the state mouthable children’s products. The last deadline is August 2018, for companies with gross sales less than $100,000 that sell in the state children’s products in contact with children’s skin for brief periods of time.
Company Size (in aggregate gross sales):
- Largest: $1 billion or more
- Larger: $250 million to $1 billion
- Medium: $100 million to $250 million
- Small: $5 million to $100 million
- Smaller: $100,000 to $5 million
- Tiny: less than $100,000
- Tier 1: children’s products intended to be mouthed, applied to body, or any mouthable product intended for ages three years and younger
- Tier 2: children’s products intended to be in prolonged direct contact with skin (1 hour or more – includes clothes, jewelry, bedding)
- Tier 3: children’s products intended for short periods of direct contact with skin
- Tier 4: inaccessible components of children’s product
Deadlines (Company Size and Product Tier) – table updated for current date:
|Mfr. Size||Tier 1||Tier 2||Tier 3||Tier 4|
The Department enforces the CSPA by collecting children’s products and testing them for CHCCs. If it finds unreported CHCCs, it contacts the manufacturer and provides an opportunity for it to explain or justify its failure to report. If after this process, the Department determines that the manufacturer violated the CSPA, it may seek civil penalties. The CSPA caps civil penalties at $5,000 for each violation for the first offense, and then $10,000 for repeat violations. A violation is defined as the failure to provide the notification for each product component in each product category.
While we are aware of the Department testing products and sending out notices of violation for failure to report, we are unaware of the Department actually imposing a civil penalty on any manufacturer.