Background

Washington enforced limits on lead, cadmium, and phthalates in children’s products in 2008. On the 14th of August of that year Congress enacted the  Consumer Product Safety Improvement Act (CPSIA), P.L. 110–314. The federal CPSIA imposes its own limits on lead, certain phthalates, and cadmium (among other substances) in certain categories of children’s products. That federal law also prohibits the enforcement of any conflicting state safety regulation. Washington’s limits on lead, phthalates, and cadmium are generally more stringent than the CPSIA limits. Therefore, for those consumer products to which a federal standard for lead, phthalates or cadmium applies, the Washington standard for that constituent is preempted and cannot be enforced.

However, Washington’s limits on lead, phthalates and cadmium in children’s products apply to a broader range of consumer products than are covered by the federal limits. For those children’s products that are covered by the Washington standards but not by federal standards, the Department of Ecology intends to enforce the applicable to the state.

Enforce guidance

The Department of Ecology will use the following analysis to determine whether it will enforce the limits on lead, phthalates, or cadmium of Washington’s Children’s Safe Products Act.

First, The Department of Ecology will determine whether the product meets the definition of “children’s products” as defined in Washington’s Children’s Safe Products Act at RCW 70.240.010. Second, The Department of Ecology will determine whether the federal limits on lead, cadmium or phthalates applies to the product in question.

If the product in question is within the RCW 70.240.010 definition of “children’s product,” but is not a product to which the federal standard applies, then The Department of Ecology may enforce the state standard with respect to that product.

Lead: The federal limit on lead applies to products designed or intended primarily for children 12 and under. There is considerable overlap between the products covered by the federal lead limit and “children’s products” under Washington law; however, the definitions are not identical. For example, car seats are not covered by the federal lead limit, but they are expressly covered by Washington law.

Cadmium: Federal law incorporates the ASTM F963-11, which includes a limit of 75 ppm cadmium in the surface-coating or accessible substrate of toys intended for use by children under 14 years. Washington’s 40 ppm, by weight, limitation on cadmium applies to a broader range of products than the federal law. For example, clothing (including footwear), jewellery, child care articles, and cosmetics (other than cosmetics that are not part of a toy) are not covered by the federal cadmium limits, but are covered by Washington law.

Phthalates: Federal law imposes a limit on three types of phthalates in children’s toys and child care articles. These same three phthalates, plus three others, are also limited in mouthable children’s toys and child care articles. Washington’s limitation on phthalates applies to a broader range of products than the federal law. For example, clothing (including footwear) and cosmetics are not covered by the federal phthalates limits, but are covered by Washington law.