I had previously written a post that summarized a conversation I had with someone over at the Consumer Product Safety Commission (CPSC) regarding U.S. flammability/lead laws for toys distributed in the US market. While the gentleman at the CPSC specifically told me that toys are not required to be tested for flammability/lead, my third-party testing center abroad keeps telling me that I do need such testing. I’m clarifying flammability requirements here.
Flammability requirements for U.S. toys:
- When Congress adopted ASTM F963-11 as the federal toy safety standard in 2008, it exempt toys from the flammability requirement and it exempt toys from the requirement of third-party flammability testing (see here).
- However, the Federal Hazardous Substances Act has a requirement that applies here. The FHSA requires that “a children’s toy—during its customary and reasonably foreseeable handling or use—must not be a hazardous substance that may cause substantial personal injury or substantial illness during, or as a proximate result of, being a highly flammable or extremely flammable solid.” This requirement does not require third-party testing. Rather, a manufacturer must have a basis for it’s decision to test or not test it’s toys.
- The basis may be the expected pattern of “customary and reasonably foreseeable handling or use.”
- The basis may be pre-existing knowledge that the materials used in a product are known not to be particularly flammable based on testing done under similar standards, such as the listing of certain materials in the wearing apparel flammability standard (16 C.F.R. § 1610.1(d)), such as polyester, which do not require testing due to experience gained from years of testing in accordance with the standard. (from here)
Whether our toy clothing accessories (doll clothes/stuffed animal clothes) need to be tested for lead/phlalates content:
- Per CPSIA, fabric & textiles for Children’s products are exempt from flammability and lead testing requirements. Children’s clothing have a flammability requirement, but Children’s toy products made from textiles do not.
- Some of our accessories are a mixture of textiles + velcro (plastic). Does the addition of plastic velcro material to our textile product now make the subject to the lead testing requirement? Velcro is considered a textile. That Velcro is considered a subset of textiles (and therefore exempt from flammability/lead) is a product of CPSIA regulatory interpretation.
- But, do any of the State laws in PA/OH/MA/CA require flammability/lead testing? CPSIA reminded me here that State law cannot conflict with federal law where federal law has spoken (Constitutional Supremacy clause > Federal law will always preempt State law where federal law has spoken). Therefore, no state law can conflict with CPSIA’s rulings on these issues! Phew.