The Society of Glass and Ceramic Decorated Products (SGCDpro) members who are also members of the Crystal Federation may have received a letter from that group’s legal counsel regarding the proper labeling of dinnerware with respect to lead content. Questions have arisen regarding use of the terms “lead free” and “unleaded” with respect to decorated ware. The U.S. Food and Drug Administration’s (FDA) website provides details that help clarify the issue.

The alert also reminded members of FDA guidance relating to decorative ware that is not suitable for food use. Such ware must be labeled on the item and not merely on the box. It is also acceptable to render the item unsuitable for food use by incorporating a hole or other disabling feature on items such as collector plates. It is important that manufacturers and decorators understand and abide by all state and federal laws regarding the use of heavy metals in decorations.

Bill Introduced to Eliminate Use of PBTs

In July, Sen. Jeff Merkley, D-Ore., introduced S. 2656, the Protecting America’s Families from Toxic Chemicals Act. He said the bill would fast-track the phase-out of chemicals that do not break down in the environment and instead build up in the food chain so that small amounts can be dangerous. The bill would require federal regulators to phase out most applications of persistent, bioaccumulative and toxic chemicals (PBTs) within the next five years.

Chemicals addressed in the bill include lead, mercury, and perfluorooctane sulfonate (PFOS), which are used to make non-stick cookware and other items. The phase-out would apply to all uses, except where the elimination of a chemical would damage national security or cause a significant disruption to the economy, and where there is no alternative. Action on the bill in 2014 is unlikely. If it dies at the end of the year, it would have to be re-introduced next year.

CPSC Rulemaking Affects Industry

The U.S. Consumer Product Safety Commission (CPSC) has been actively pursuing policies and regulations that would negatively impact the way manufacturers and retailers, particularly small businesses and associations, conduct business.

Potential Ways to Reduce Third-Party Testing Costs

CPSC staff held a workshop this spring on potential ways to reduce third-party testing costs. The goal of the workshop and the public notice was to provide CPSC with information and evidence concerning possible commission determinations that certain materials will comply with applicable safety standards with a high degree of assurance and without requiring third-party testing. The commission reopened the comment period through July 16. The staff is evaluating comments and should make a decision later in the year.

Changes to Public Disclosure

The CPSC issued a notice of proposed rulemaking (NPR) making changes to Section 6(b) of the Consumer Product Safety Act, which requires the agency to take “reasonable steps” to ensure that any information it intends to disclose to the public identifying a manufacturer or private labeler of a product (whether on its own initiative or in response to a Freedom of Information Act request) is accurate, that the disclosure is “fair in the circumstances.” The congressionally mandated protection is critically important, as it encourages companies to voluntarily report potential product hazards and defects. Among other things, the amendment proposes to:

•  Make any information publically available on the Internet exempt from 6(b) requirements

•  Remove the ability for companies to be re-notified each time the agency releases information that has already gone through the 6(b) process

•  Remove the ability for companies to designate that their comments or objections in response to a 6(b) notice be withheld from public disclosure

•  Remove the ability for companies to protect information from disclosure by designating them “work product” or “attorney-client” privileged

The public comment period seeking information on the commission’s proposed rule to amend the existing regulation interpreting the provisions of Section 6(b) of the CPSA closed on April 28, and the staff is evaluating those comments.

“Interpretative” Rule on Voluntary Recalls

In November 2013, the CPSC issued a proposed rule that would negatively impact the commission’s voluntary recall process and would place significant burdens on manufacturers of consumer products. The proposed rule would make voluntary corrective action plans (CAPs) and voluntary recalls legally binding, remove a company’s ability to disclaim admission of a defect or potential hazard and empower CPSC staff to include compliance programs in CAPs.

The voluntary recall process is an important element of the framework designed to protect consumers. For more than 35 years, the commission has worked closely with manufacturers, retailers, importers and other stakeholders to remove harmful products from the marketplace and to educate consumers.

The current voluntary corrective action process is a model of good governance, and the commission rightly highlights the successes of its programs, including the Fast-Track program. The commission’s ill-advised proposed rule would punish companies who exercise caution and partner with the agency to quickly protect consumers from
potential harm.

CPSC Section 15(b) and Voluntary Recalls Drop

An article published in Product Safety Letterby Lee L. Bishop examined reasons that data released by the CPSC indicate that Section 15(b) reports were substantially lower in fiscal year 2013 compared with the previous two years. Voluntary recalls also dropped in fiscal 2013.

Under Section 15(b) of the Consumer Product Safety Act, companies are obligated to report to the CPSC if they have a reasonable basis to conclude that a substantial product hazard may exist. The vast majority of recalls supervised by the CPSC originate from those Section 15(b) reports.

 Citing several examples documenting that the “CPSC costs” of doing recalls have gone up, Bishop suggests that “more companies appear willing to take the risk of a penalty for late or non-reporting for marginal safety issues over the second-guessing and punitive treatment that are now routine for companies that turn themselves in and volunteer to conduct recalls….A more punitive CPSC may have the completely unintended but entirely predictable effect of reducing the numbers of product recalls. Perhaps new chairman Elliot Kaye will step back and consider modifications to the compliance posture of the CPSC that may better serve the ultimate goal of consumer product safety that all of us share.”