February 2017

On January 30, 2017, the US Consumer Product Safety Commission (CPSC) issued the Final Rule (16 CFR 1112 and 16 CFR 1228) in the Federal Register, 82 FR 8671, regarding safety standard adoption for infant sling carriers.

In the final rule, the ASTM F2907-15 Standard Consumer Safety Specification for Sling Carriers is adopted. A sling carrier is defined in the standard as a product of fabric or sewn fabric construction which is designed to contain a child in an upright or reclined position while supported by the caregiver’s torso. The standard’s requirements apply to all slings and the CPSC has also identified the following 3 types of sling carrier products available in the United States:

1. Ring slings (hammock-shaped fabric products in which one runs fabric through two rings to adjust and tighten the sling)

2. Pouch slings (similar to ring slings but do not use rings for adjustment)

3. Wrap slings (composed of a long length of fabric, up to 6 yards long and 2 feet wide, with no fasteners)

The final rule will be effective January 30, 2018

This summary is not intended to be exhaustive nor should it be construed as legal advice.

On February 2, 2017, the Consumer Product Safety Commission (CPSC) issued a Direct Final Rule (16 CFR 1112 and 1250) through the Federal Register, 82 FR 8989, regarding the adoption of the updated standard, ASTM F963-16 Standard Consumer Safety Specification for Toy Safety.

On October 20, 2016, a new version of the ASTM F963 toy safety standard was published. The revision contains clarifications, corrections and new requirements. In general, certain changes in the requirements are revised to be more aligned with other standards including EN 71-1 and ISO 8124-1. (See Overview of changes in ASTM F963-16 Toy Safety Standard for detail.)

Recently, the CPSC issued the Direct Final Rule to confirm adoption of the updated standard. In the rule, 16 CFR 1112 was amended to include that specified sections of ASTM F963-16 are required to be subject to third party testing and, therefore, the CPSC only accepts accredited third party conformity assessment bodies for testing to those sections. Apart from that amendment, 16 CFR 1250 was added to the Code of Federal Regulations to address that toys must comply with the provisions of ASTM F963-16. This addition to the rule clarifies requirements so that the public may more easily understand the mandatory rules that apply to toys.

The effective date of the direct final rule to adopt the updated toy safety standard is April 30, 2017, unless significant adverse comments are received by March 6, 2017.

This summary is not intended to be exhaustive nor should it be construed as legal advice.

In January 2017, the Environmental Protection Agency (EPA) proposed a rule to prohibit the manufacture, importation, processing and distribution of Methylene chloride (also known as Dichloromethane or DCM) and N-Methylpyrrolidone (NMP), which are used for removing paints and coatings. In general, the prohibition of the two chemicals applies to commercial paint and coating removal.

DCM is a volatile chemical while NMP is a solvent. Both chemicals have a variety of uses, including commercial paint and coating removal. However, the EPA has identified risks associated with the use of DCM and NMP and, therefore, proposed regulations under the Toxic Substances Control Act (TSCA) as summarized below:

For both NMP and DCM:

1. Prohibits the manufacture (including import), processing and distribution in commerce of DCM/NMP for consumer and most types of commercial paint and coating removal

2. Prohibits the use of DCM/NMP in commercial paint and coating removal

3. Requires manufacturers (including importers), processors and distributors of DCM/NMP for any use to provide downstream notification of these prohibitions throughout the supply chain and requires recordkeeping. This does not apply to retailers.

US FDA Publishes Draft Guidance Document for Maximum Lead Level Recommendation in Cosmetics

In December 2016, the Food and Drug Administration (FDA) published a draft guidance document for the industry: Lead in Cosmetic Lip Products and Externally Applied Cosmetics: Recommended Maximum Level. The draft guidance provides a recommendation for the maximum level of lead as an impurity present in cosmetic lip products and externally applied cosmetics marketed in the United States.

In December 2016, the Food and Drug Administration (FDA) published a draft guidance document for the industry: Lead in Cosmetic Lip Products and Externally Applied Cosmetics: Recommended Maximum Level. The draft guidance provides a recommendation for the maximum level of lead as an impurity present in cosmetic lip products and externally applied cosmetics marketed in the United States.

Based on various surveys and exposure assessments conducted by the FDA on cosmetic lip products and externally applied cosmetics, it was concluded in the guidance document that a maximum level of 10 ppm lead as an impurity would not pose a health risk. The recommended level of lead is consistent with other public health authorities including Health Canada and the European Directorate General for Enterprise and Industry.

This guidance does not establish legally enforceable limits, but should be viewed as recommendations by the FDA. The FDA maintains that these levels should be attainable following good manufacturing practices and responsible ingredient sourcing. The guidance document does not apply to topically applied products classified as drugs or to hair dyes that contain lead acetate as an ingredient.

In December 2016, the Food and Drug Administration (FDA) published a draft guidance for the industry: Preparation of Food Contact Notifications for Food Contact Substances in Contact with Infant Formula and/or Human Milk. The guidance provides recommendations to help manufacturers or suppliers in preparing Food Contact Notification (FCN) for substances that are intended for use in contact with infant formula and/or human (breast) milk.

Food contact substances covered by this guidance include, but are not limited to, the following:

1. Infant formula packaging for both liquid and powdered formula

2. Baby bottles

3. Bottle inserts

4. Nipples

In the guidance, recommendations are provided regarding how the scientific information in FCNs for infant food uses should demonstrate that the food contact substance is safe for the specific intended use. There are three categories of recommendations provided in the guidance:

1. Chemistry recommendation

2. Toxicology recommendation

3. Administrative recommendation

The comment period for the draft guidance closed on February 7, 2017.

This summary is not intended to be exhaustive nor should it be construed as legal advice.

Below is a summary of recently updated ASTM standards that may be of interest to our clients:

This summary is not intended to be exhaustive nor should it be construed as legal advice.

On January 10, 2017, the California Air Resources Board (CARB) issued Revised Labeling Advisory for Composite Wood Product Industry (Number 384-Revised). The advisory provides labeling requirements for panel manufacturers, fabricators of finished goods, importers, distributors and retailers of panels and finished goods.

In the revised advisory, labeling recommendations are provided and the key information required is summarized in the below table:

Remark:

1. No TPC number is required if the products are exempt from third party certification following approval by CARB based on the use of no-added formaldehyde (NAF) and certain ultra-low-emitting formaldehyde (ULEF) resins.

This summary is not intended to be exhaustive nor should it be construed as legal advice.

In July 2016, the California Department of Toxic Substances Control (DTSC) opened a 45-day comment period for the proposal to list children’s foam-padded sleeping products containing TDCP or TCEP as priority products to be regulated under the Safer Consumer Products (SCP) Regulations (See Regulatory Recap: August 2016). In response to comments received, the DTSC revised the text of the proposed regulations on December 28, 2016.

The key revisions to the proposed regulations are summarized below:

1. Clarified the definition of children’s foam-padded sleeping products containing TDCPP or TCEP as being assembled products designed or intended primarily for children 12 years of age or younger to nap or sleep on.

2. Mattresses, mattress pads and mattress sets regulated by 16 CFR 1632 and 1633 are now exempted

3. Other editorial changes are included

The comment period for the revised text was closed on January 12, 2017.

This summary is not intended to be exhaustive nor should it be construed as legal advice.

In January 2016, the Oregon Senate Bill SB 478, Toxic Free Kids Act, entered into force and established a list of 66 high priority chemicals of concern for children’s health. Subsequently, the Oregon Health Authority (OHA) began writing the rules that govern what manufacturers must do to comply with the law. The writing of reporting rules is occurring in three phases. Recently, phase 2 of rule writing was completed.

The detail of the three phases are summarized below:

In phase 2, the OHA published the final text of the rules which includes:

1. Practical Quantification Limits (PQL) established for each high priority chemical

2. Definition of ”Product Category” as “brick” level of the GS 1 Global Product Classification (GPC) standard, which identifies products that serve a common purpose, are of a similar form and material, and share the same set of category attributes.

3. Details of the information required for reporting

4. The reporting schedule:

   1. No later than January 1, 2018, and every other year thereafter, a children’s product manufacturer shall provide notification if the product contains listed priority chemicals in an amount above the PQL or concentration of 100 ppm. (First notification applies to children’s product sold or offered for sale between January 1, 2017 and December 31, 2017.)

   2. Future notices apply to children’s product sold or offered for sale during the previous two year period.

   3. The second biennial notice will cover the period of January 1, 2018 to December 31, 2020.

5. Exemptions from reporting requirements

This summary is not intended to be exhaustive nor should it be construed as legal advice.

On December 17, 2016, the Department of the Environment (DOE) and the Department of Health (DOH) issued a notice of intent to develop regulations regarding asbestos through the Canada Gazette. When in force, the proposed regulations will result in a ban of future asbestos activities in Canada.

According to the notice, the Canada DOE and DOH are initiating the proposal of regulations to prohibit all future activities regarding asbestos and asbestos containing products, including the manufacture, use, sale, offer for sale, import and export. The proposed regulations are intended to be published in the Canada Gazette, Part I, in December 2017. Currently, no regulatory detail has been provided.

This summary is not intended to be exhaustive nor should it be construed as legal advice.

In January 2017, Environment Canada’s Chemical Management Plan (CMP) continued its assessment for determining whether the substances listed under the plan are toxic or are capable of becoming toxic. Meanwhile, a substantial new mandatory reporting obligation for importers and users of approximately 1500 chemicals was initiated and a guidance was issued in the Canada Gazette dated January 14, 2017.

The reporting obligations are retrospective, applicable to calendar years 2014 and 2015, and the reporting deadline is July 17, 2017. According to the guidance, the reporting applies to those who, during either the 2014 or 2015 calendar year, met any of the following criterion:

1. Manufactured a total quantity more than 100 kg of a listed substance (Part 4 of the list is applied to a substance that is intended to be part of a cosmetic, food, therapeutic product or natural health product under Food and Drugs Act);

2. Imported a total quantity more than 100 kg of a listed substance that is:

   1. Alone, or

   2. At a concentration more than or equal to 0.1% by weight (w/w%) in a mixture or in a product;

3. Imported a total quantity greater than 100 kg of a listed substance (Part 4) that is contained in or intended to be part of a cosmetic , food, therapeutic product or a natural health product under Food and Drugs Act

This summary is not intended to be exhaustive nor should it be construed as legal advice.

On January 12, 2017, the European Chemicals Agency (ECHA) added 4 new substances of very high concern (SVHC) to the SVHC Candidate List under Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). The added chemicals can be reproductive toxins as well as have persistent, bioaccumulative and toxic (PBT) properties. Their addition brings the SVHC Candidate List total to 173 substances.

The chemicals added are:

1. 4,4'-isopropylidenediphenol (Bisphenol A, BPA) (EC No. 201-245-8, CAS No. 80-05-7)

2. 4-heptylphenol, branched and linear

3. Nonadecafluorodecanoic acid (PFDA) and its sodium and ammonium salts

4. p-(1,1-dimethylpropyl)phenol

The deadline for notification about the presence of the new SVHCs in articles is July 12, 2017, six months after their inclusion on the List.

This summary is not intended to be exhaustive nor should it be construed as legal advice.

On December 22, 2016, the European Chemical Agency (ECHA) proposed to amend Annex XVII of Regulation (EC) No. 1907/2006 Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). Certain substances classified as carcinogenic, mutagenic or toxic to reproduction (CMR) were proposed for inclusion within the scope of entries 28 -30 of the Annex.

Upon enforcement, the proposed regulations will amend Annex XVII of REACH Regulation List of Restriction by adding following substances:

1. Tetrahydro-2-furyl-methanol

2. Gallium arsenide

3. Tributyltin compounds

4. [1,2-benzenedicarboxylic acid, dihexyl ester, branched and linear]

5. 1,2-dichloropropane

6. Bisphenol A

7. [phenol, dodecyl-, branched], [phenol, 2-dodecyl-, branched], [phenol, 3-dodecyl-, branched], [phenol, 4-dodecyl-, branched], [phenol, (tetrapropenyl) derivatives]

8. Chlorophacinone (ISO)

9. Warfarin (ISO)

10. Coumatetralyl (ISO)

11. Difenacoum (ISO)

12. Brodifacoum (ISO)

13. Flocoumafen (ISO)

14. Disodium octaborate anhydrous

15. [e-glass microfibers of representative composition]

16. Lead powder and lead massive

17. Bromadiolone (ISO)

18. Difethialone, [perfluorononan-1-oic acid, and its sodium and ammonium salts]

19. Dicyclohexyl phthalate

20. 3,7-dimethylocta-2,6-dienenitrile

21. Triflumizole (ISO)

This summary is not intended to be exhaustive nor should it be construed as legal advice.

On January 13, 2017, the European Union (EU) published the Official Journal: Publication of Titles and References of Harmonised Standards under Entry 27 of Annex XVII to REACH. The journal lists updated harmonised standards for entry 27 (Nickel) of Annex XVII (List of Restrictive Substances) of Regulation (EC) No. 1907/2006 Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).

The 3 harmonised standards are summarized below:

This summary is not intended to be exhaustive nor should it be construed as legal advice.

In Europe, when hazards are identified in consumer products, the products will be recalled and published in the Rapid Alert System, which is updated weekly. The European recalls for December 2016 and January 2017 are summarized below:

* Other Hazards include Asphyxiation Hazard, Burn Hazard, Damage to Hearing Hazard, Entrapment Hazard, Environmental Hazard, Fall Hazard, Laceration Hazard and Microbial Hazard with a frequency of less than 10.

# Other Categories include Candles & Burning Items and Accessories, Cosmetics / Bodycare, Footwear, Homeware (Non-food Contact), Jewelry, Watch or other Fashion Accessories, Personal Protective Equipment (excludes eye protection), Sporting Goods / Equipment and Tools and Hardware with frequency less than 8.

Download the complete Recalls Summary - EU (December 2016 and January 2017)

Le 22 décembre 2016, la Commission australienne de la concurrence et de la consommation (ACCC) a publié un avis : Ban on Portable Ethanol Burn ers adressant qu'une interdiction provisoire sur la vente des brûleurs d'éthanol a été imposée.

Les brûleurs à l'éthanol sont de petits brûleurs décoratifs portatifs alimentés par de l'alcool et ils ont déjà causé un certain nombre de blessures graves, voire mortelles. Par conséquent, l'interdiction provisoire ne permet pas aux détaillants de vendre des brûleurs décoratifs alimentés à l'alcool dans le Territoire de la capitale australienne, sauf s'ils.. :

• ont une puissance supérieure à 4,5 kW, ou nécessitent une installation en position fixe, ou

• nécessitent une installation dans une position fixe, ou

• Sont conçus pour réchauffer les aliments

En outre, l'interdiction provisoire prend effet dès la publication de l'avis par l'ACCC. Les détaillants et les fournisseurs sont tenus de cesser de vendre et de retirer les brûleurs d'éthanol portables des rayons des magasins et des boutiques en ligne.

Ce résumé ne prétend pas être exhaustif et ne doit pas être interprété comme un avis juridique.