Funworld January 2009

Laying Down the Law

How the Consumer Product Safety Improvement Act affects FECs and the industry at large

by Mike Bederka

THE CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008 will change how family entertainment centers and other attractions, as well as redemption companies, operate, regardless of the operation’s size or volume.

“There’s a bit of apathy out there, (especially with singlelocation facilities),” says Jerry Venner, director of Fun Express Inc., an Omaha, Nebraska-based redemption supplier. “People think this is just a Wal-Mart, Toys ‘R’ Us, Chuck E. Cheese-kind of legislation. No, this actually applies to you.”

Here are some highlights.

Lower Lead Levels
By Feb. 10, 2009, items designed or intended primarily for children age 12 and younger may not contain more than 600 parts per million (ppm) of lead. At the time of taking this article to press, the CPSC’s general counsel has taken the position that existing inventory cannot be sold after this date, unless it complies with the new lead limits.

One year from enactment—Aug. 14, 2009—these products cannot contain more than 300 ppm of lead; the limit goes down to 100 ppm after Aug. 14, 2011, unless the U.S. Consumer Product Safety Commission (CPSC) determines that it’s “not technologically feasible.”

Some children’s products may be exempted or excused from these new limits if a component part containing lead is inaccessible.

In addition, after Aug. 14, 2009, the act states that paint and similar surface-coating materials must be reduced from 600 ppm to 90 ppm of lead.

Third-Party Testing
The legislation imposes an additional third-party testing requirement for all products primarily intended for kids 12 and younger. Every manufacturer (including an importer) or private labeler must have its product tested by an accredited independent lab and, based on the testing, issue a certificate that the product meets all applicable CPSC requirements. Certificates must include info on the identity of the product’s manufacturer/private labeler, the testing lab, and the date and place of manufacturing and testing of the product. Products without the certificate cannot be imported or distributed in the United States.

The third-party testing/certification requirements are phased in on a rolling schedule. For example, “small parts” is February 2009 and 300 ppm lead content is August 2009.

Tracking Labels
The new law requires manufacturers to have a tracking label or other distinguishing permanent mark on any consumer product primarily intended for children 12 and younger. The tracking label must contain certain basic information: the source of the product, the date of manufacture, and more detailed info on the manufacturing process like a batch or run number. This requirement goes into effect after Aug. 14, 2009.

Nixing Phthalates
As of Feb. 10, 2009, it will be illegal to manufacture, sell, distribute, or import into the United States any children’s toy that contains concentrations of more than 0.1 percent of di- (2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).

There’s also an “interim prohibition,” beginning Feb. 10, 2009, on any toy that can be placed in a child’s mouth that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).

Phthalates, used widely as plasticizers and solvents, appear in many products, including building materials, personal care products, medical devices, and toys, according to the American Council on Science and Health.

The CPSC’s general counsel has written an advisory opinion that says Congress did not indicate in the law that the phthalates ban applies retroactively. Unless Congress or the CPSC commissioners reverse this opinion, existing inventory is not covered by the ban.

How to Respond
As a result of the law, FEC owners and operators will now have more duties and obligations placed upon them, notes R. Wayne Pierce, a counselor with the Pierce Law Firm LLC, in Annapolis, Maryland. “Folks need a process on how they’re going to respond.”

Venner offers some tips and general advice on working with vendors:

• The supplier (importer) should be named on the report as the party requesting the testing, not just the manufacturer. Expect the supplier may not reveal proprietary information on the report (like the production factory name and address).
  
  
• Safety reports should be available upon request. “If [an FEC] can’t get that back in 48 hours, you have a problem,” Venner says.
  
  
• The test report should be dated in the past 12 months or at least done in conjunction with the last shipment of the item produced for the supplier.
  
  
• Testing must be done by an accredited independent third-party consumer products lab to all applicable requirements.
  
  
• The test report must have a detailed description of the item, the tests performed, and a photo of the samples is strongly recommended.

“FECs should feel empowered to be able to ask for this information,” says Kevin Klein, sales manager of amusement/ redemption for Fun Express.

Serious Ramifications
The government offers some tough talk for failure to follow the new law, including “significant civil and criminal liability.”

“Realistically, is some guy going to show up in a dark suit and sunglasses with an AK-47 and ask, ‘Are you compliant?’” Venner comments. “I don’t think it’s going to look like that.” Rather, he believes reckless FECs will come under the watchful eye of passionate consumer advocacy groups and those in the legal community.

The subsequent loss of customers and money, and the generation of negative press will be damaging. “You don’t want to be the lead story on the five o’clock news,” Venner says.

As this issue develops, please stay tuned to the IAAPA FEC web page at www.IAAPA.org/community/fec, the IAAPA blog at www.IAAPA.org/blog, and FUNWORLD for further updates. For more information on the Consumer Product Safety Improvement Act of 2008, visit www.cpsc.gov/ABOUT/Cpsia/cpsia or call +1 301/504-7923.