The Consumer Product Safety Commission (CPSC) voted unanimously to approve a final rule to determine that certain plastics (with specified additives) are not expected to violate limits on phthalates in children's toys and child care articles and therefore will not require third-party testing. The Commission has separately agreed in a court proceeding to vote on a final rule on phthalate limits in children's toys and child care articles by October 18, 2017.

The Consumer Product Safety Improvement Act of 2008 (CPSIA) imposed a permanent ban of children's toys and child care articles containing concentrations of more than 0.1% of three specified phthalates:

• di(2-ethylhexyl) phthalate (DEHP);

• dibutyl phthalate (DBP); or

• butyl benzyl phthalate (BBP).

CPSIA also imposed an interim ban on children's toys and child care articles containing more than 0.1% of three other specified phthalates:

• diisononyl phthalate (DINP);

• diisodecyl phthalate (DIDP); or

• di-n-octyl phthalate (DnOP). 

Separately, CPSIA created third-party testing and certification requirements for children's product makers and sellers. Companies are required to test substances that may contain phthalates to demonstrate that they comply with the restrictions. Industry has long argued that such testing represents an unnecessary and costly expense because many plastics fail to perform if they are contaminated with phthalates. Additionally, where used, phthalates are generally found at much higher levels than 0.1%, as lower levels do not generally impart the plasticity required.

The CPSC pursued two significant procedures to maintain and extend the interim bans while simultaneously reducing the burden where industry demonstrated to the staff's satisfaction that testing was not needed.

Phthalate Bans on Children's Toys and Child Care Articles with Phthalates Above Limits

First, the phthalate bans, both interim and permanent, were to be reviewed by a Chronic Hazard Advisory Panel (CHAP). Thereafter, CPSC was supposed to issue a final rule either permanently banning or lifting the ban on the interim-banned phthalates. The CHAP report would then form the basis of future rulemaking on banning these and other phthalates.

The CHAP's review concluded in July 2014. Pursuant to the report, the CPSC issued a proposed rule on December 30, 2014, to ban children's toys and child care articles containing more than 0.1% of:

• ban diisobutyl phthalate (DIBP);

• di-n-pentyl phthalate (DnPP);

• di-n-hexyl phthalate (DnHP);

• dicyclohexyl phthalate (DCHP); or

• DINP.

This rule would lift the interim ban on DIDP and DnOP. Despite issuing a proposal, however, CPSC did not proceed promptly to issue a final rule. After two years' delay, when CPSC still had not issued a final rule, the Natural Resources Defense Council (NRDC), sued the agency in December 2016 to force it to act. After the parties and others (including an intervenor) filed motions, the parties reached a consent agreement, which the judge approved August 18, 2017. Pursuant to the agreement, the judge in the case ordered the CPSC to vote on a final rule by October 18, 2017.

Determinations That Certain Plastics Will Not Contain Phthalates Above Limits

Second, following extensive comments from a workshop held approximately four years ago, CPSC proposed to eliminate phthalate testing requirements for four common plastics. The proposal represented the first meaningful reduction in testing burdens since the CPSC issued certain determinations about heavy metals and phthalates in 2009. In the final rule, approved on August 25, 2017, CPSC moved forward with its determinations. Thus, effective September 30, 2017, third-party testing will no longer be required to demonstrate that polypropylene (PP), polyethylene (PE),general purpose polystyrene (GPPS), medium-impact polystyrene (MIPS), high-impact polystyrene (HIPS), super high-impact polystyrene (SHIPS), and acrylonitrile butadiene styrene (ABS), with specified additives, would not contain the specified phthalates prohibited in children's toys and child care articles that are subject to testing.

Future Rulemaking

With CPSC now scheduled to vote on the final phthalates ban by October 18, CPSC watchers should pay close attention. Indeed, CPSC may engage in several rulemakings before the end of Commissioner Marietta Robinson's term this October. Robinson, an Obama appointee, could remain as a commissioner for up to a year after her term ends unless the president names and the Senate confirms her successor. President Trump's recent nomination of Ann Marie Buerkle as chair suggests that a replacement for Robinson may be in the works. Interested parties should keep an eye on the CSPC calendar to track the progress of key votes in coming months.