Continuing our coverage of the Washington’s Children’s Safe Products Act, the Washington Department of Ecology recently issued guidance clarifying its enforcement policy of the Washington Act’s prohibition on the manufacturing and sale of children’s products containing lead, cadmium, and phthalates.

In this guidance, the Department concedes that the federal Consumer Products Safety Improvement Act preempts the Washington Act as it concerns those children’s products that are subject to a federal standard for lead, phthalates, or cadmium, but advises that the Washington Act’s limits on the same contaminants apply to a broader range of consumer products. Therefore, for those children’s products that are covered by the Washington Act’s standards, but not CPSIA, the Department now intends to enforce the applicable state standards.

The Department’s approach

The Department has offered some insight into its analysis to determine whether enforcement is appropriate. The Department summarizes this analysis as follows:

  • First, the Department will determine whether the product meets the Washington Act’s definition of a “children’s product.”
  • Second, the Department will determine whether the CPSIA limits on lead, cadmium, or phthalates apply to the product in question.
  • Third, if the product in question is within the Washington Act’s definition of a children’s product but is not covered by CPSIA for the chemical at issue, the Department will enforce the Washington Act’s standard with respect to that product.

There is considerable, but not complete, overlap between the products covered by the Washington Act and the federal limits. For example, car seats are considered a children’s product under the Washington Act, but are under the jurisdiction of NHTSA – not CPSC – at the federal level. Clothing (including footwear) and cosmetics are “children’s products” under the Washington Act but fall outside CPSIA’s phthalate limits on “children’s toys” and “child care articles.”

Enforcement

We don’t know what approach the Department will take to enforcement. To date, we are only aware of the Department enforcing based on self-reporting under the Washington Act’s second prong. It is possible the Department will start acquiring samples and testing.