In 2008, after a wave of imported toys and consumer goods were found to contain the toxin lead, Congress enacted the Consumer Products Safety Improvement Act of 2008 (“CPSIA”) in order to modernize the Consumer Products Safety Commission (“CPSC”) and establish more stringent consumer product safety standards and safety requirements, with a particular focus on regulating children’s products.
Under the CPSIA, it is unlawful for any person to manufacture for sale, offer for sale, distribute into commerce, or import into the United States, any children’s toy or child care article containing concentrations of more than 0.1 percent of di-(2ethylhexyl)phthalate (DEHP), di-n-butyl phthalate (DBP), or butyl benzyl phthalate (BBP). Additionally, the CPSA makes it unlawful for any person to manufacture for sale, offer for sale, distribute into commerce, or import into the United States, any children’s toy that can be placed in a child’s mouth or any child care article that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
In addition to the regulation of phthalates in children’s products, the CPSIA also enumerates acceptable lead levels for Children’s Products. The CPSIA bans lead in children’s products in concentrations greater than 100 parts per million (ppm). Additionally, the CPSIA prohibits lead in paint and surface coatings in children’s toys in concentrations greater than 90 ppm.
Private individuals may sue individuals who violate certain provisions of the CPSA. First, any person who sustains an injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the commission, may sue the alleged violator in any U.S. district court. They may also recover damages and the costs of the suit, including reasonable attorneys’ fees and reasonable expert fees.
Second, any interested person has a private right of action to enforce a Consumer Product Safety Rule or Order. In order to proceed, such interested persons must provide the alleged violating company with notice that its products are in violation of the CPSIA. The noticing party would be able to determine appropriate civil penalties and, if applicable, attorneys’ fees may be recovered. Although, to date, there have been few, if any, private enforcement actions brought under the CPSIA, given the current budgeting restrictions faced by such agencies, including the CPSC, private enforcement actions are likely to become more prevalent.
