In a previous issue of PPB, I wrote about how Michelle, a newbie product compliance manager for a golf promotional products distributer, handled the difficult challenges of defending her first California Prop 65 violation when an insulated lunch cooler bag was found to contain high levels of phthalates by a private enforcer (i.e., a “bounty hunter”). After that terrifying experience, Michelle spent many hours of her own time researching other state regulations to ensure that she wouldn’t be caught by any other “surprises” that might negatively affect her company, its customers and consumers who use the products sold by her company.
Federal Vs. State Regulations
Michelle has become quite proficient at spotting potential safety and compliance issues with her company’s products in relation to U.S. federal regulations such as CPSIA, FDA and FTC; but, her lack of knowledge of the myriad state regulations has been a major cause of confusion and frustration for her. The thoughts that often run through her mind, such as “Why do states enact so many laws and regulations when federal regulations are trying to accomplish the same goals?” are so confounding that she just wants to throw her hands up in the air and say “I give up!” but Michelle knows this is not going to help to protect her company from potential liability.
Michelle has learned that the federal government has allowed states to enact regulations of their own in areas that are not preempted by federal law. Furthermore, she knows, from her painful and costly Prop 65 experience, that her company must comply with both federal and state regulations. So, Michelle has decided to sort through the key state regulations that govern consumer products and broaden her awareness beyond the federal regulations with which she has grown so familiar.
Why State Regulations Shouldn’t Be Ignored
States enact their own safety regulations for various reasons, but the main ones are to protect their citizens from harmful chemicals that are hazardous to human health and can cause damage to the environment. Many state regulations overlap with federal regulations that govern similar health and environmental concerns, so a product that is found to violate a federal regulation can also violate one or more corresponding state regulations, and in some cases, in multiple states, thereby resulting in several federal and state regulations being violated by the same product. Simply put, suppliers, distributors and end buyers in our industry should be very aware of the key product safety regulations of the states where their products are sold or used, and implement best practices to eliminate (or reduce) certain hazards and chemicals that can result in violations.
The “Usual Suspects”: Products, Chemicals And Items Intended For Kids
Michelle has figured out that almost all of the state regulations can be sorted by either (1) type of product, (2) type of chemicals, and/or (3) whether a product is intended to be used by children. To assist in her own understanding of the regulations, she has categorized them as follows:
By Type Of Product:
- General Consumer Products: These products, often referred to as “general use items” under the CPSIA, are items that are typically suitable for use by consumers of all ages around their homes or offices; excluded from this group are products that are deemed be “Children’s Products.” The typical promotional products that fall into this category are apparel, bags, luggage, drinkware, mobile phone accessories, writing instruments and jewelry, among others.
- Electronic and Electrical Products: These products typically have chemicals or heavy metals that are potentially hazardous to human health and the environment. Heavy metals such as lead, cadmium, hexavalent chromium and mercury are toxic to humans and can leach into ground water. Many states have regulations called Restrictions of Hazardous Substances (RoHS) that focus on these chemicals and substances in consumer electronics and electrical products; examples of products that fall into this group are mobile phones, USB chargers, ear phones and ear buds, and computer accessories.
By The Chemicals:
- Many state regulations are focused on the chemicals and substances that can found in products, such as lead, cadmium, BPA, mercury, flame retardants and various “chemicals of high concern.” These chemicals and substances, and others, are harmful to human health and the environment, so numerous states have recently passed, or are in the process of passing, new regulations to restrict the use of, or limit the exposures to, such chemicals in products sold or distributed in their home states.
By The Age Of The Intended User:
- Many state regulations are focused on protecting children from the harmful effects of product hazards and chemicals. We know that the CPSIA has a strong focus on children’s safety, but many states are likely as concerned. Children’s products are consumer products that are intended primarily for children 12 years or younger. Some states do not define a children’s product by specific age, or have other age specifications for such things as children’s jewelry or different chemicals, so care must be used when reviewing the applicability of all state regulations to your product.
Which State Regulations To Follow?
As a result of Michelle’s research on state regulations, she soon realized that they were too numerous, too complex and too dissimilar for her to memorize so she narrowed her focus on key regulations that would reduce her company’s potential liability:
- California Prop 65: Clearly, Prop 65 is the Mother of All State Regulations and, given her company’s prior violation, Michelle must ensure that her products comply with this regulation. There are now more than 900 chemicals listed by the State of California that can cause cancer, birth defects or other reproductive harm, and companies that sell or distribute products in California that (1) exceed state-established limits on any such chemical, (2) expose a consumer to it, and (3) provide no clear and reasonable warning on the product, the maker and seller can be hit with penalties of up to $2,500 a day per violation. Learn more of Michelle’s prior Prop 65 “experience” by reading “Nailed by a Bounty Hunter—A California Prop 65 Violation Can Cost Your Company” in the February 2013 issue of PPB or by finding it on the PPAI publications website at pubs.ppai.org.
- Illinois Lead Law: The Illinois Lead Poisoning Prevention Act is intended to ensure that its residents are warned if consumer products they purchase contain lead in excess of state-established limits. All toys, child-care articles and children’s jewelry must have a warning label on the item if lead in the surface coatings exceeds 40 ppm. Products for adults must have a warning if the lead exceeds 600 ppm.
- Washington State Children’s Safe Products Act: As the name of this act clearly states, it is intended to protect children in Washington against the potential harmful effects of “chemicals of high concern” (CHCC). The state is currently developing a list of chemicals that manufacturers must report to the state if any of those listed chemicals are used in products intended for children. CHCCs currently include BPA, phthalates, formaldehyde, mercury, lead and cadmium, as well as many others on the current list of 66 chemicals. Manufacturers must report to the state if their products contain any of the CHCCs in excess of state-established concentration limits. This is a regulation we should all keep an eye on for future developments.
State Regulations At A Glance
Michelle has worked hard for many months to sort through the maze of the various states’ product and environmental regulations. She has painstakingly created a handy reference chart to help her in her daily compliance reviews and PPAI is sharing it with you here. This chart has helped her to work with her suppliers and vendors to reduce the risk of a compliance problem down the road. Michelle’s State Regulation Chart will help you learn the key regulations of the states where your products may be distributed. It is not intended to be a complete listing or explanation of every state regulation, so you should not rely on it as an exhaustive compilation. Also, some states may have changed their regulations since Michelle created the chart. Always check with your test lab, product safety consultant or legal advisor to ensure full compliance with all regulations.
Key Tips For Suppliers And Distributors
If Michelle can attain a high level of clarity with the key state regulations, so can you. Hopefully, her chart will help you achieve a better and more thorough understanding of these regulations so you can gain confidence as we all journey down the road of compliance in our industry. Here are some tips for you:
- For Suppliers: For all products, work with your factories and vendors to ensure your products are fully reviewed and tested at all applicable stages of product development, production, packaging, and distribution, to ensure that they are designed, formulated, made, marketed, advertised and distributed with compliance in mind. Sharing a copy of this article and Michelle’s chart can be very helpful. Foreign (and even most domestic) vendors will have a hard time in grasping the concept that there is more to product safety than CPSIA, but with consistent education and training, your vendors will be more willing to help you achieve your compliance goals. Focus on the hazards and chemicals that are the usual suspects in your particular product categories. This will go a long way as an initial step.
- For Distributors: To avoid making yourself a “hard target,” prevent damage to your client relationships and avoid costly recalls or lawsuits, all distributors should require written verification of compliance from their suppliers. Ask for written test reports that (1) are current (within the last 12 months) and (2) specifically show testing results that comply with key state regulations. These two basic steps will help reduce the risk of non-conformities that can result in canceled orders, unhappy end buyers, violations (with fines and penalties), injury claims and very expensive recalls. In addition, all distributors should create a checklist of key compliance requirements, and ask their suppliers to certify that their products comply with the checklist.
How To Learn More
As a first step, every company, whether a supplier or a distributor, should appoint someone in the company to be the “quarterback” of your company’s compliance efforts. This person should have the appropriate level of authority to govern the company’s product responsibility program. Education and training takes time, but, just as Michelle has done, every PPAI member company can take advantage of the webinars, live courses, the many Best Practice Guides, presentations and other resources that are made available by PPAI at its events, shows or on its website.
Encourage your product responsibility personnel to attend PPAI’s annual Product Safety Summit where they can satisfy the educational requisites of the PPAI Product Safety Awareness Program and immerse themselves in two days of product safety education sessions. The summit is August 13-14 in Boston, Massachusetts. For more information on all of these valuable resources, go to www.ppai.org/inside-ppai/product safety or contact Anne Lardner-Stone, PPAI’s director of public affairs, at AnneL@ppai.org.
Leeton Lee has been in the product safety and compliance industry for 18 years, starting as in-house legal counsel at The Walt Disney Company where he worked for seven years and helped to form Disney’s industry-leading Corporate Product Integrity Department and managed the company’s legal matters for its worldwide product safety and liability program. As an attorney for approximately 25 years, he has extensive experience in regulatory compliance and product safety, namely in toys, children’s products, promotional products and apparel. In addition to working at Disney, he has performed associate general counsel duties at industry leaders Sega Gameworks and Equity Marketing (aka EMAK Worldwide). He is currently vice president of regulatory compliance and general counsel at drinkware supplier ETS Express, Inc. in Oxnard, California. He is also a member of PPAI’s Product Responsibility Action Group (PRAG).