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SGMA Comments to CPSC on Phthalates Ban in Sporting Goods

On behalf of the members of the Sporting Goods Manufacturers Association we respectfully urge the Consumer Product Safety Commission (CPSC or the Commission) to grant an exemption to performance sporting goods and fitness equipment used in legitimate sports and fitness activities with respect to §108 of the CPSIA. Action by the Commission is urgently needed in light of the upcoming February 10, 2009 deadline for phthalate bans and limits.  Issuance of a final rule is particularly critical since the statute’s deadlines do not mesh with other deadlines and requirements. An example of this confusion and inconsistency is represented by ASTM F963, the Children’s Toy Standard, which also becomes mandatory on February 10, 2009.  In other words, the CPSIA specifies that a pending rulemaking will not delay implementation of the effective dates for such limits, but does not adequately provide for an orderly implementation of a comprehensive rule that clarifies definitions to a sufficient degree so that manufacturers can deal with inventory as well as the distribution of new products in commerce.

As a result he Sporting Goods Manufacturers Association (SGMA) submits this comment in response to the CPSC’s request for comments regarding CPSIA section 108.  The SGMA, the trade association of leading industry sports and fitness brands, enhances industry vitality and fosters sports and fitness participation through research, thought leadership, product promotion and public policy. SGMA produces the industry leading National Health-through-Fitness Day on Capitol Hill as well as representing the industry on trade and consumer issues.

The membership of the Association is extremely concerned about the classification of performance sporting goods used for legitimate sports activities under §108 of the Act. Subsection 108(e) defines ‘‘children’s toy’’ as “a consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.”  A ‘‘child care article’’ is defined as “a consumer product designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething.” A toy is considered a “toy that can be placed in a child’s mouth”…“if any part of the toy can actually be brought to the mouth and kept in the mouth by a child so that it can be sucked and chewed. If the children’s product can only be licked, it is not regarded as able to be placed in the mouth. If a toy or part of a toy in one dimension is smaller than 5 centimeters, it can be placed in the mouth.”

The SGMA takes the position that legitimate performance sporting goods are not “children’s toys” as defined in §108.   Whether the product is made for pee-wee sports, youth sports, or adult sports should not be the determining factor.  As long as the sporting good is intended to develop a child’s interest and ability in a legitimate sports activity, and is not merely a toy replica of a sporting good, then that product should not be defined as a “toy” for purposes of §108.  For instance, the mere fact that a sporting good is used by children under the age of 13 does not make it a toy.  That is true of footballs, basketballs, soccer balls, helmets, lacrosse sticks, bats, swim goggles, fins, and so on.  These products and many others are made with the intent of promoting youth to engage in a truly legitimate sports and fitness activity.

Indeed the Commission recognizes this analysis to be valid in answering the question, “does the prohibition on phthalates apply to sporting goods?”  Your analysis begins by recognizing that under ASTM F963, which becomes a mandatory standard on February 10, 2009, sporting goods equipment are not defined as toys unless the product is a toy version of a sporting good.  However, the SGMA respectfully disagrees with your interpretation that the definition of “children’s toy” somehow broadens the definition of “toy”.  In fact §108 merely adds a step in the analysis that all sporting goods manufacturers have made before the CPSIA existed.  Manufacturers have always made the analysis of whether the product was a true “sporting good” intended for a legitimate sports activity, whether for youth or adult usage.  Replicas of sporting goods equipment have always been viewed as “toys” by manufacturers.  To now indicate that there is somehow a new and different analysis without giving specific guidance as to how that analysis should be made is to cast an enormous shadow of doubt on all youth sporting goods equipment manufactured.   Stating that there needs to be a case-by-case analysis under the 4 factors you identify is not very helpful to a sporting goods manufacturer as there is little guidance offered other than the repeated listing of these factors and statements by the Commission that you will not provide advice on a case-by-case basis.  SGMA members are making every effort to comply with all aspects of the CPSIA.  However, they are confused and concerned because of a belief that somehow the Commission is changing the definitional analysis of what is a traditional performance sporting good.  The SGMA believes that in fact there is no change in how manufacturers have traditionally and fairly analyzed and defined their products either as “sporting goods” or “toy” replicas of sporting goods.

Moreover, the United States Customs and Border Patrol recognize the clear distinction between “sporting goods” and “toys”.  The Harmonized Tariff Schedule of the United States 2008, supplement 1, classifies toys separately from different types of sporting goods.  In chapter 95 of the Schedule toys, games, and sporting goods are classified for tariff purposes.  However, they are classified under different subchapters.  Toys are classified under subchapter 9504 while sporting goods equipment is classified primarily under subchapter 9506.  This demonstrates that toys and sporting goods are treated differently for tariff purposes and there is a specific delineation between “toys” and “sporting goods” so there is very little confusion in the world of imports.

In conclusion, the SGMA and its membership firmly believes that performance sporting goods that are used in legitimate sports activities should be granted an exemption from §108 of the Act.  The SGMA has asked for a meeting at the CPSC on numerous occasions.  The Association realizes that everyone at the Commission is extremely busy trying to implement and provide guidance to the consumer products industry.  However, sporting goods manufacturers must have clarity as to its products as there are tens of millions of dollars at stake regarding product already in inventory as well as future product development.  The SGMA is willing to meet at a moment’s notice.  We thank you for your consideration of this truly crucial issue to sporting goods manufacturers.  Thank you.