You asked about laws regulating sales of children's toys, including tag sales.

SUMMARY

In 2008, Connecticut enacted PA 08-108 and 08-122, both of which affect the sale of children's toys. PA 08-108 established limits for lead in children's products, making children's products that fail to comply with the limits banned hazardous substances and prohibited the sale of toys or other articles marketed for children under age 16 that contain asbestos. PA 08-122 made the provisions of 08-108 subject to available appropriations, exempted certain drug products, and revised the list of toxic substances. Neither act specifically references tag sales.

Rick Maloney, director of the Trade Practices Division at the Department at Consumer Protection, has said the provision does not apply to children's products sold at tag sales.  The state does not regulate tag sales or require them to be licensed.  Thus, they are essentially a private activity.  The language (e.g., “selling at wholesale or retail,” “contracting to sell or resell,” “otherwise place in the stream of commerce,” etc.) applies to regulated, commercial activities. 

Public Law No. 110-314, the Consumer Product Safety Improvement Act (CPSIA), passed by Congress in 2008, places new requirements on sale of children's products, requiring sellers to certify that the products contain no more than 600 parts per million (ppm) total lead.

The law does not prohibit tag sales from selling children's products, nor does it require thrift or consignment stores to certify products meet the new standards. Resellers are advised to avoid selling products that are not likely to meet the new standards, as they could still face criminal and civil penalties for violating the law.

Proposed changes to the law would exempt from testing (1) items with lead parts that a child cannot access, (2) clothing, toys and other goods made of natural materials such as cotton and wood, and (3) electronics that are impossible to make without lead.

AN ACT CONCERNING CHILD PRODUCT SAFETY

PA 08-108 established limits for lead in children's products by amending the State Child Protection Act, the state's counterpart to the Federal Hazardous Substances Act (FHSA). With certain exceptions, it makes children's products that fail to comply with the limits banned hazardous substances. It also prohibits the sale of toys or other articles marketed for children under age 16 that contain asbestos. PA 08-122 amended this act by (1) requiring the Department of Consumer Protection (DCP) to implement the act's requirements within available appropriations; (2) exempting certain drugs from the recall provision; and (3) revising the list of toxic substances that must be compiled by the commissioners of (DCP), environmental protection (DEP), and public health (DPH).

The law requires retailers and other businesses selling a banned hazardous substance to complete a certificate of disposition to account for its disposal. It requires the Department of Consumer Protection (DCP) commissioner, who administers the State Child Protection Act, to post on the department's website a list of toys and other articles intended for use by children that are banned hazardous substances. The commissioner must also consult with the departments of Public Health (DPH) and Environmental Protection (DEP) to compile a list of other toxic substances and safer alternatives. The commissioner may adopt regulations requiring certain consumer products to have warning labels if they bear lead-containing paint.

The act also:

1. increases related criminal and civil penalties;

2. requires stores to post notices when DCP designates an article as a banned hazardous substance, making failure to do so an unfair trade practice; and

3. makes failure to allow a DCP inspector or investigator to inspect an establishment where hazardous substances are manufactured or to obtain a sample an unfair trade practice.

The Connecticut Unfair Trade Practice Act (CUTPA) allows the consumer protection commissioner to issue regulations defining what constitutes an unfair trade practice, investigate complaints, issue cease and desist orders, order restitution in cases involving less than $ 5,000, enter into consent agreements, ask the attorney general to seek injunctive relief, and accept voluntary statements of compliance. It also allows individuals to sue.  Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorneys fees; and impose civil penalties of up to $ 5,000 for willful violations and $ 25,000 for violation of a restraining order.

The act authorizes the DEP commissioner to take part in an interstate clearinghouse to classify chemicals according to the risks they pose.

The act became effective October 1, 2008, except for the provisions concerning the certificate of disposition and the interstate clearinghouse, which are effective upon passage.

Lead Limits

The State Child Protection Act prohibits placing a banned hazardous substance in the stream of commerce. Beginning July 1, 2009, this act establishes limits for lead in children's products. Products that fail to comply with these limits are banned hazardous substances and thus subject to the prohibition. The act defines “children's product” as a consumer product designed or intended primarily for children under age 12, including toys, jewelry, decorative objects, clothing, candy, food, dietary supplements or other chewable items, furniture, or other articles used by or intended to be used by children.

Under the act, a children's product is considered a banned hazardous substance if:

1. (a) from July 1, 2009 to June 30, 2011, any part of the product contains more than 300 parts per million total lead content by weight and (b) on and after July 1, 2011, any part of the product contains more than 100 ppm total lead content by weight;

2. on and after July 1, 2009, it bears lead-containing paint with more than 90 ppm total lead content by weight; or

3. on and after July 1, 2009, it bears lead-containing paint containing more than. 009 milligrams of lead per centimeter squared.

The act authorizes the DCP commissioner to adopt regulations on and after July 1, 2011, if he determines that is it feasible for a children's product to comply with a stricter standard than 100 ppm total lead content by weight for any part of the product. Under these regulations, the commissioner may require a children's product to comply with a limit as low as 40 ppm total lead content by weight.

Prior law did not establish limits for lead in children's products. However, the DCP commissioner has, by regulation, declared lead-containing paints with 0. 06% lead by weight or more (600 ppm) to be banned hazardous substances (Conn. Agencies Regs. § 21a-336-1).

The act defines “lead-containing paint” as paint or other similar surface coating materials containing detectable lead or lead compounds. “Paint and other similar surface-coating materials” means a fluid, semi-fluid, or other material applied to a metal, wood, stone, paper, leather, cloth, plastic, or other surface. It does not include printing inks, materials that become part of the substrate (e.g., pigment in a plastic article), or materials that are bonded to the substrate (e.g., through electroplating or ceramic glazing).

Exceptions

Inaccessible Components. The act creates an exception for a children's product containing a component that exceeds the act's limits if the component (1) is not accessible to a child because it is enclosed by a covering or casing and (2) will not become physically exposed through normal and reasonably foreseeable use and abuse of the product. Under the act, paint, coatings, or electroplating cannot be considered barriers that would make the substrate inaccessible to a child through normal and reasonably foreseeable use and abuse.

Electronic Devices. The act creates a temporary exception for children's products that are electronic devices, including batteries, if the DCP commissioner determines that it is not feasible for such products to meet the act's standards by July 1, 2009. It requires the commissioner, through regulation, to (1) set interim standards to reduce the exposure of, and accessibility to, lead in these electronic devices and (2) establish a schedule for the devices to comply fully with the act's stricter standards applicable to all other children's products.

Prohibited Acts

The act prohibits introducing or delivering for introduction into commerce any toy or other article for sale in Connecticut containing asbestos and marketed for use by children under age 16.

The act also prohibits manufacturing; distributing; selling at wholesale or retail; or contracting to sell or resell, lease, sublet, or otherwise place in the stream of commerce any children's product that:

1. is a banned hazardous substance under state law or FHSA;

2. is the subject of voluntary or mandatory corrective action taken under the direction of, or in cooperation with, a federal agency but the defect in the product has not been corrected; or

3. does not otherwise conform to applicable consumer product safety standards under the State Child Protection Act, any similar state law, or any similar federal laws or regulations.

Disposition Certificate

By law, manufacturers, distributors, and retailers must repurchase an article they sell that is a banned hazardous substance, whether or not the article was banned at the time of sale. The act requires retailers and other businesses in the state selling a banned hazardous substance to account for its disposal.

Under the act, the DCP commissioner must develop a certificate of disposition by October 1, 2008 for retailers and wholesalers prohibited from selling or placing in the stream of commerce any children's product that is subject to a recall or voluntary corrective action. The certificate must require these retailers and wholesalers to (1) specify the make, model, type, quantity, and final disposition of the affected children's products and (2) sign an affidavit verifying the authenticity of the information. The certificate must contain any other information the commissioner requires.

If a retailer or wholesaler receives notification or information that a children's product has been recalled or subject to voluntary corrective action, the act requires it to inspect its premises and immediately dispose of all such products in its possession. Retailers and wholesalers must complete the certificate of disposition within seven calendar days after receiving the notice or information concerning a recall or voluntary corrective action. They must maintain signed and dated certification forms, which are subject to inspection by the commissioner or his designated agents, for at least three years.

The act subjects retailers or wholesalers to the penalties of the State Child Protection Act, as amended, if they fail to (1) dispose of products properly, (2) complete the certificate of disposition, or (3) maintain certification forms.

Lists

Banned Children's Products Internet List. The act requires, rather than allows, the DCP commissioner to compile a list of toys and other articles that are intended for use by children and that are banned hazardous substances. It additionally requires the commissioner to post the list in a conspicuous place on DCP's website. The list must be publicly accessible and searchable.

Other Toxic Substances List. The act also requires the DCP commissioner, in consultation with the commissioners of DPH and DEP, to compile and amend from time to time, a list of other toxic substances and the recommended maximum amount that may be present in children's products. The DCP commissioner must establish and update a corresponding list of safer alternatives to the toxic substances.

Warning Labels for Certain Consumer Products

The act defines “consumer product” as any article that is used primarily for personal, family, or household purposes. The act allows the DCP commissioner to adopt regulations requiring certain consumer products to carry warning labels.

Under the act, the commissioner may identify consumer products with which a child may reasonably or foreseeably come into contact and that bear lead-containing paint and, on a case-by-case basis, require them to carry such a warning label. The act prohibits anyone engaged in commerce, including individuals, firms, and businesses, from having, offering for sale, selling, or giving away any consumer product identified in the regulations that bears lead-containing paint, unless the product has a warning label required by federal regulation or the state warning label.

If federal regulations do not prescribe a warning label, the act specifies how the state-required warning label must read. For products with lead-containing paint, the warning label must read: “WARNING—CONTAINS LEAD. DRIED FILM OF THIS SURFACE MAY BE HARMFUL IF EATEN OR CHEWED. See Other Cautions on (Side or Back) Panel. Do not apply on toys, or other children's articles, furniture, or interior or exterior exposed surfaces or any residential building or facility that may be occupied or used by children. KEEP OUT OF THE REACH OF CHILDREN. ”

For products with a form of lead other than lead-containing paint, the warning label must read: “WARNING–CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD. KEEP OUT OF THE REACH OF CHILDREN. ”

Exemptions

The act exempts from its warning label provision (1) children's products and (2) consumer products with lead-containing components that are not accessible to children because they are not physically exposed due to a covering or casing and they will not become physically exposed through normal and reasonably foreseeable use and abuse.

Unfair Trade Practices

Notice Requirements. The act authorizes the DCP commissioner to require retail stores to post notices informing the general public when DCP adopts a regulation designating an article a banned hazardous substance. Notices must be posted in a location visible to the general public and remain up for a period of time the department specifies.

Inspections and Obtaining Samples. By law, DCP inspectors and investigators, upon presenting appropriate credentials, must be allowed to:

1. enter, at reasonable times, any factory, warehouse, or establishment in which hazardous substances are manufactured or held for introduction into commerce, or held after introduction into commerce;

2. enter, at reasonable times, any vehicle used to transport or hold hazardous substances;

3. inspect, at reasonable times, within reasonable limits, and in a reasonable manner any factory, warehouse, establishment, or vehicle, and all equipment, finished and unfinished materials, and labeling; and

4. obtain samples of such materials, packages, or labeling.

Violations. The act makes it a violation of the Connecticut Unfair Trade Practices Act (CUTPA) to fail to (1) follow the posting requirement or (2) permit an inspector or investigator to carry out his or her duties as described above. CUTPA generally allows the DCP commissioner to investigate complaints, issue cease and desist orders, order restitution, enter into consent agreements, and ask the attorney general to initiate legal proceedings. It also allows individuals to file civil lawsuits. Courts may issue restraining orders; award actual and punitive damages, costs, and reasonable attorney's fees; and impose civil penalties of up to $5,000 for willful violations and $25,000 for restraining order violations.

State Child Protection Act Penalties

Under prior law, violations of the State Child Protection Act were either (1) class C misdemeanors, punishable by imprisonment for up to three months, fines of up to $500, or both or (2) for repeat offenses or those committed with the intent to defraud or mislead, unclassified misdemeanors punishable by imprisonment for up to one year, fines of up to $3,000, or both.

Under the act, the former become class B misdemeanors, punishable by imprisonment for up to six months, fines of up to $1,000, or both. And the maximum fine for the unclassified misdemeanor offense increases to $5,000.

The act also authorizes the DCP commissioner to levy a civil penalty of up to $100 for a violation of the State Child Protection Act, except for a violation that involves removing or disposing of tags affixed to embargoed items since the law already authorizes DCP to levy civil penalties of up to $500 per item for such a violation. Under the act, each violation, and each day it continues, constitutes a separate and distinct offense. The act requires the department to give alleged violators notice and a hearing and directs that these penalties be deposited into DCP's consumer protection enforcement account. It also requires that fines for tagging violations be deposited in that account.

CONSUMER PRODUCT SAFETY IMPROVEMENT ACT

CPSIA requires products aimed at children 12 and under to be tested for lead and phthalates. Phthalates are chemicals used to make plastics more pliable.

Beginning February 10, 2009, children's products containing more than 600 ppm total lead may not be sold. The total lead limit drops to 300 ppm on August 14, 2009. Certain children's products manufactured on or after February 10, 2009 cannot be sold if they contain more than 0.1% of certain specific phthalates.

The law exempts specific products or materials if the products or materials will neither: (1) result in the human lead absorption, taking into account reasonably foreseeable use and abuse by a child; nor (2) have any other adverse impact on public health or safety. It also provides for special regulations for certain electronic devices.

Sellers of used children's products, such as thrift and consignment stores, are not required to certify that those products meet the new lead limits, phthalates standard, or new toy standards. The law does not require resellers to test children's products in inventory for compliance with the lead limit before they are sold. However, resellers cannot sell children's products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and criminal penalties (http://www.cpsc.gov/cpscpub/prerel/prhtml09/09086.html).

PROPOSED CHANGES

The Consumer Product Safety Commission has given preliminary approval to changes in new lead-testing rules after complaints that the measures could have forced thrift stores and sellers of handmade toys to dispose of merchandise or even go out of business. The commission voted tentatively to exempt (1) items with lead parts that a child cannot access, (2) clothing, toys and other goods made of natural materials such as cotton and wood, and (3) electronics that are impossible to make without lead.

As a result of the vote, 30-day public comment period opens beginning when notice of the rules are printed in the Federal Register. Interested parties can find out how to submit comments by signing up to receive e-mail from the Consumer Product Safety Commission (CPSC) at www.cpsc.gov.

No final rules will be approved until after the testing rules go into effect. As a result, retailers and manufacturers selling untested children's merchandise will technically be in violation of the new law beginning February 10.

Regarding federal regulators enforcing the rules, CPSC spokesman Scott Wolfson remarked, “The CPSC is an agency with limited resources and tremendous responsibility to protect the safety of families. Our focus will be on those areas we can have the biggest impact and address the most dangerous products” (http://www.latimes.com/business/printedition/la-fi-lead7-2009jan07,0,7201098.story).

MR:ts