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SGMA Submits Comments to CPSC on Application of Phthalates Ban

Notice of Availability of Draft Guidance Regarding Which Children’s Products are Subject to the Requirements of CPSIA Section 108:  Request for Comments and Infromation and Comment of the Sporting Goods Manufacturers Association

Preamble

On behalf of the members of the Sporting Goods Manufacturers Association (SGMA) we appreciate the opportunity to comment on the Consumer Product Safety Commission’s (CPSC) staff approach for determining which products are subject to the requirements of §108 of the CPSIA, and to provide additional information regarding the exemption of sporting goods and fitness products from the phthalate requirements.  We respectfully urge the CPSC to grant an exemption to performance sporting goods used in legitimate sports activities with respect to §108 of the CPSIA.

Action by the Commission is urgently needed in light of the February 5, 2009 court decision in NRDC vs. CPSC regarding the retroactive application of §108 as well as the passing of the effective date of this section on February 10, 2009.  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 §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.   Legitimate performance sporting goods are those products that are designed and primarily intended to teach skill sets to younger participants in order to increase interest and participation in athletics, and to promote physical activity to reduce the risk of childhood obesity.  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 skill set in a legitimate sports activity, then that product should not be classified 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 truly legitimate sports activities.

The SGMA lauds the CPSC in the subject request for comment for its recognition and analysis of sporting goods and athletic equipment in the context of ASTM F963-07 which became mandatory on February 10, 2009.  The toy standard excludes sporting goods and athletic equipment from the definition of “toy”.  The SGMA agrees with the CPSC staff analysis that even if legitimate sporting goods and athletic equipment are designed and primarily intended for children 12 years of age or younger then those articles should be exempted from the CPSIA §108 requirements.  The SGMA also agrees that toy versions of sporting goods and athletic equipment should be considered “toys” and subject to §108.

I.  General Approach

For the reasons stated above, the SGMA agrees with the general approach of the CPSC in that legitimate sporting goods and athletic equipment whether designed primarily intended for adults, teens or children 12 years of age or younger are not “toys” and, therefore, are exempt from the provisions of §108 of the CPSIA.  On the other hand, a toy version of sporting goods or athletic equipment are “toys” and must comply with §108 of the CPSIA.  Reliance on the ASTM F963 exclusion of sporting goods is appropriate and the SGMA generally agrees with the CPSC’s following statement:

“…Generally, regulation-size baseballs, basketballs, footballs, and soccer balls are athletic equipment and, therefore, are excluded by ASTM F963.  Accordingly, even if they [sporting goods] are designed or sized for use by children, the staff’s proposed approach would exclude them from CPSIA section 108 requirements.  In contrast, the staff regarded general purpose balls as toys and therefore, subject to the requirements of the CPSIA section 108.  A toy version of the actual athletic equipment, such as a toy baseball glove with a foam ball would be considered by the staff to be a toy for the purpose of the CPSIA…”

This guidance is clear and is generally consistent with the understanding that sporting goods manufacturers and fitness equipment manufacturers have been working with for years.   Simply said products designed and intended to introduce children to and help them learn particular skill sets to eventually participate in legitimate sports activities are sporting goods and should be exempted from §108.  Only “toy” versions such as a foam ball or a small 13” plastic bat should be required to meet the phthalate section.

Concerning foreseeable consequences, if the Commission staff takes a different approach than stated in this request for comments manufacturers will have little guidance to determine gray areas.  As a result tens of millions of dollars of inventory may be deemed non-compliant when in fact the CPSC might not believe that to be so.  Further, the ability of manufacturers to move product into the stream of commerce would be inhibited as there would be no meaningful, understandable bright lines to judge compliance from non-compliance.

In conclusion, the SGMA believes that it is critical for the CPSC to once and for all formally adopt the proposed position stated in this request and to grant an exemption for all legitimate sporting goods from the phthalate provision of the CPSIA.  Thank you.