15 U.S.C. § 1278 — Requirements for labeling certain toys

Page 1381 TITLE 15—COMMERCE AND TRADE § 1278 ferred to in subsection (a) as modified by sub- section (b) after providing notice and an oppor- tunity for comment. If at any time the Commis- sion finds that the standard referred to in sub- section (a) as modified by subsection (b) is inad- equate for the protection of the public interest, it shall promulgate an amendment to the stand- ard which will adequately protect the public in- terest. Such final standard shall be promulgated pursuant to section 553 of title 5, except that the Commission shall give interested persons an op- portunity for the oral presentation of data, views, or arguments, in addition to an oppor- tunity to make written submissions. A tran- script shall be kept of any oral presentation. (d) Guidelines for determining chronically haz- ardous art materials; issuance; public hear- ing; scope of criteria; review; amendment (1) Within 1 year of November 18, 1988, the Commission shall issue guidelines which specify criteria for determining when any customary or reasonably foreseeable use of an art material can result in a chronic hazard. In developing such guidelines the Commission shall conduct a public hearing and provide reasonable oppor- tunity for the submission of comments. (2) The guidelines established under paragraph (1) shall include— (A) criteria for determining when art mate- rials may produce chronic adverse health ef- fects in children and criteria for determining when art materials may produce such health effects in adults, (B) criteria for determining which sub- stances contained in art materials have the potential for producing chronic adverse health effects and what those effects are, (C) criteria for determining the bio- availability of chronically hazardous sub- stances contained in art materials when the products are used in a customary or reason- ably foreseeable manner, and (D) criteria for determining acceptable daily intake levels for chronically hazardous sub- stances contained in art materials. Where appropriate, criteria used for assessing risks to children may be the same as those used for adults. (3) The Commission shall periodically review the guidelines established under paragraph (1) to determine whether the guidelines reflect rel- evant changes in scientific knowledge and in the formulations of art materials, and shall amend the guidelines to reflect such changes. (e) Informational and educational materials; de- velopment and distribution The Commission shall develop informational and educational materials about art materials and shall distribute the informational and edu- cational materials to interested persons. (f) Injunctions The Commission may bring an action under section 1267 of this title to enjoin the purchase of any art material required to be labeled under this chapter which is for use by children in pre- kindergarten, kindergarten, or grades 1 through 6. (Pub. L. 86–613, § 23, as added Pub. L. 100–695, Nov. 18, 1988, 102 Stat. 4568.) Editorial Notes REFERENCES IN TEXT The Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subsec. (b)(1), is act June 25, 1947, ch. 125, as amended generally by Pub. L. 92–516, Oct. 21, 1972, 86 Stat. 973, which is classified generally to sub- chapter II (§ 136 et seq.) of chapter 6 of Title 7, Agri- culture. For complete classification of this Act to the Code, see Short Title note set out under section 136 of Title 7 and Tables. The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (b)(1), is act June 25, 1938, ch. 675, 52 Stat. 1040, which is classified generally to chapter 9 (§ 301 et seq.) of Title 21, Food and Drugs. For complete classi- fication of this Act to the Code, see section 301 of Title 21 and Tables. CODIFICATION Pub. L. 100–695 enacted section 23 of Pub. L. 86–613, classified to this section, without a prior enactment of a section 22 of Pub. L. 86–613. § 1278. Requirements for labeling certain toys and games (a) Toys or games for children who are at least 3 (1) Requirement The packaging of any toy or game intended for use by children who are at least 3 years old but not older than 6 years (or such other upper age limit as the Commission may determine, which may not be less than 5 years old), any descriptive material which accompanies such toy or game, and, in the case of bulk sales of such toy or game when unpackaged, any bin, container for retail display, or vending ma- chine from which the unpackaged toy or game is dispensed shall bear or contain the cau- tionary statement described in paragraph (2) if the toy or game— (A) is manufactured for sale, offered for sale, or distributed in commerce in the United States, and (B) includes a small part, as defined by the Commission. (2) Label The cautionary statement required by para- graph (1) for a toy or game shall be as follows: (b) Balloons, small balls, and marbles (1) Requirement In the case of any latex balloon, any ball with a diameter of 1.75 inches or less intended for children 3 years of age or older, any marble intended for children 3 years of age or older, or any toy or game which contains such a bal- loon, ball, or marble, which is manufactured for sale, offered for sale, or distributed in com- merce in the United States— (A) the packaging of such balloon, ball, marble, toy, or game, (B) any descriptive material which accom- panies such balloon, ball, marble, toy, or game, and Page 1382 TITLE 15—COMMERCE AND TRADE § 1278 (C) in the case of bulk sales of any such product when unpackaged, any bin, con- tainer for retail display, or vending machine from which such unpackaged balloon, ball, marble, toy, or game is dispensed, shall bear or contain the cautionary state- ment described in paragraph (2). (2) Label The cautionary statement required under paragraph (1) for a balloon, ball, marble, toy, or game shall be as follows: (A) Balloons In the case of balloons, or toys or games that contain latex balloons, the following cautionary statement applies: (B) Balls In the case of balls, the following cau- tionary statement applies: (C) Marbles In the case of marbles, the following cau- tionary statement applies: (D) Toys and games In the case of toys or games containing balls, the following cautionary statement applies: In the case of toys or games containing mar- bles, the following cautionary statement ap- plies: (c) Advertising (1) Requirement (A) Cautionary statement Any advertisement by a retailer, manufac- turer, importer, distributor, or private label- er (including advertisements on Internet websites or in catalogues or other printed materials) that provides a direct means for the purchase or order of a product for which a cautionary statement is required under subsection (a) or (b) shall include the appro- priate cautionary statement displayed on or immediately adjacent to that advertise- ment, as modified by regulations issued under paragraph (3). (B) Application to retailers (i) Requirement to inform A manufacturer, importer, distributor, or private labeler that provides such a product to a retailer shall inform the re- tailer of any cautionary statement re- quirement applicable to the product. (ii) Retailer’s requirement to inquire A retailer is not in violation of subpara- graph (A) if the retailer requested informa- tion from the manufacturer, importer, dis- tributor, or private labeler as to whether the cautionary statement required by sub- paragraph (A) applies to the product that is the subject of the advertisement and the manufacturer, importer, distributor, or private labeler provided false information or did not provide such information. (C) Display The cautionary statement required by sub- paragraph (A) shall be prominently dis- played— (i) in the primary language used in the advertisement; (ii) in conspicuous and legible type in contrast by typography, layout, or color with other material printed or displayed in such advertisement; and (iii) in a manner consistent with part 1500 of title 16, Code of Federal Regula- tions. (D) Definitions In this subsection: (i) The terms ‘‘manufacturer’’, ‘‘dis- tributor’’, and ‘‘private labeler’’ have the meaning given those terms in section 2052 of this title. (ii) The term ‘‘retailer’’ has the meaning given that term in section 2052 of this title, but does not include an individual whose selling activity is intermittent and does not constitute a trade or business. (2) Effective date The requirement in paragraph (1) shall take effect— Page 1383 TITLE 15—COMMERCE AND TRADE § 1278 1 So in original. Probably should be ‘‘this section’’. (A) with respect to advertisements on Internet websites, 120 days after August 14, 2008; and (B) with respect to catalogues and other printed materials, 180 days after August 14, 2008. (3) Rulemaking Notwithstanding any provision of chapter 6 of title 5 or the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.), the Commission shall, not later than 90 days after August 14, 2008, promulgate regulations to effectuate this section with respect to catalogues and other printed material. The Commission may, under such regulations, provide a grace period of no more than 180 days for catalogues and other printed material printed prior to the effective date of paragraph (1) during which time dis- tribution of such catalogues and other printed material shall not be considered a violation of such paragraph. The Commission may promul- gate regulations concerning the size and place- ment of the cautionary statement required by paragraph (1) of this subsection as appropriate relative to the size and placement of the ad- vertisements in such catalogues and other printed material. The Commission shall pro- mulgate regulations that clarify the applica- bility of these requirements to catalogues and other printed material distributed solely be- tween businesses and not to individual con- sumers. (4) Enforcement The requirements in paragraph (1) shall be treated as a consumer product safety standard promulgated under section 2058 of this title. The publication or distribution of any adver- tisement that is not in compliance with para- graph (1) shall be treated as a prohibited act under section 2068(a)(1) of this title. (d) General labeling requirements (1) In general Except as provided in paragraphs (2) and (3), any cautionary statement required under sub- section (a) or (b) shall be— (A) displayed in its entirety on the prin- cipal display panel of the product’s package, and on any descriptive material which ac- companies the product, and, in the case of bulk sales of such product when unpackaged, on the bin, container for retail display of the product, and any vending machine from which the unpackaged product is dispensed, and (B) displayed in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on such package, descriptive materials, bin, container, and vending ma- chine, and in a manner consistent with part 1500 of title 16, Code of Federal Regulations (or successor regulations thereto). (2) Exception for products manufactured out- side United States In the case of a product manufactured out- side the United States and directly shipped from the manufacturer to the consumer by United States mail or other delivery service, the accompanying material inside the package of the product may fail to bear the required statement if other accompanying material shipped with the product bears such state- ment. (3) Special rules for certain packages (A) A cautionary statement required by sub- section (a) or (b) may, in lieu of display on the principal display panel of the product’s pack- age, be displayed on another panel of the pack- age if— (i) the package has a principal display panel of 15 square inches or less and the re- quired statement is displayed in three or more languages; and (ii) the statement specified in subpara- graph (B) is displayed on the principal dis- play panel and is accompanied by an arrow or other indicator pointing toward the place on the package where the statement re- quired by subsection (a) or (b) appears. (B)(i) In the case of a product to which sub- section (a), subsection (b)(2)(B), subsection (b)(2)(C), or subsection (b)(2)(D) applies, the statement specified by this subparagraph is as follows: (ii) In the case of a product to which sub- section (b)(2)(A) applies, the statement speci- fied by this subparagraph is as follows: (e) Treatment as misbranded hazardous sub- stance A balloon, ball, marble, toy, or game, that is not in compliance with the requirements of this subsection 1 shall be considered a misbranded hazardous substance under section 1261(p) of this title. (Pub. L. 86–613, § 24, as added Pub. L. 103–267, title I, § 101(a), June 16, 1994, 108 Stat. 722; amended Pub. L. 110–314, title I, § 105, Aug. 14, 2008, 122 Stat. 3031.) Editorial Notes REFERENCES IN TEXT The Paperwork Reduction Act of 1980, referred to in subsec. (c)(3), is Pub. L. 96–511, Dec. 11, 1980, 94 Stat. 2812, which was classified principally to chapter 35 (§ 3501 et seq.) of Title 44, Public Printing and Docu- ments, prior to the general amendment of that chapter by Pub. L. 104–13, § 2, May 22, 1995, 109 Stat. 163. For complete classification of this Act to the Code, see Short Title of 1980 Amendment note set out under sec- tion 101 of Title 44 and Tables. AMENDMENTS 2008—Subsecs. (c) to (e). Pub. L. 110–314 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively. Page 1384 TITLE 15—COMMERCE AND TRADE § 1278a Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 103–267, title I, § 101(d), June 16, 1994, 108 Stat. 725, provided that: ‘‘Subsections (a) and (b) [enacting this section and provisions set out as a note under sec- tion 1261 of this title] shall take effect January 1, 1995, and section 24 of the Federal Hazardous Substances Act [this section] shall apply only to products entered into commerce on or after January 1, 1995.’’ REGULATIONS Pub. L. 103–267, title I, § 101(c), June 16, 1994, 108 Stat. 725, provided that: ‘‘The Consumer Product Safety Commission (hereinafter referred to as the ‘Commis- sion’) shall promulgate regulations, under section 553 of title 5, United States Code, for the implementation of this section [enacting this section and provisions set out as notes under this section and section 1261 of this title] and section 24 of the Federal Hazardous Sub- stances Act [this section] by July 1, 1994, or the date that is 6 months after the date of enactment of this Act [June 16, 1994], whichever occurs first. Subsections (f) through (i) of section 3 of the Federal Hazardous Sub- stances Act (15 U.S.C. 1262) shall not apply with respect to the issuance of regulations under this subsection.’’ PREEMPTION Pub. L. 103–267, title I, § 101(e), June 16, 1994, 108 Stat. 725, provided that: ‘‘(1) IN GENERAL.—Subject to paragraph (2), a State or political subdivision of a State may not establish or en- force a requirement relating to cautionary labeling of small parts hazards or choking hazards in any toy, game, marble, small ball, or balloon intended or suit- able for use by children unless such requirement is identical to a requirement established by amendments made by this section to the Federal Hazardous Sub- stances Act [enacting this section] or by regulations promulgated by the Commission. ‘‘(2) EXCEPTION.—A State or political subdivision of a State may, until January 1, 1995, enforce a requirement described in paragraph (1) if such requirement was in effect on October 2, 1993.’’ § 1278a. Children’s products containing lead; lead paint rule (a) General lead ban (1) Treatment as a banned hazardous sub- stance Except as expressly provided in subsection (b) beginning on the dates provided in para- graph (2), any children’s product (as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a))) that contains more lead than the limit established by paragraph (2) shall be treated as a banned hazardous sub- stance under the Federal Hazardous Sub- stances Act (15 U.S.C. 1261 et seq.). (2) Lead limit (A) 600 parts per million Except as provided in subparagraphs (B), (C), (D), and (E), beginning 180 days after Au- gust 14, 2008, the lead limit referred to in paragraph (1) is 600 parts per million total lead content by weight for any part of the product. (B) 300 parts per million Except as provided by subparagraphs (C), (D), and (E), beginning on the date that is 1 year after August 14, 2008, the lead limit re- ferred to in paragraph (1) is 300 parts per million total lead content by weight for any part of the product. (C) 100 parts per million Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after August 14, 2008, subparagraph (B) shall be applied by substituting ‘‘100 parts per mil- lion’’ for ‘‘300 parts per million’’ unless the Commission determines that a limit of 100 parts per million is not technologically fea- sible for a product or product category. The Commission may make such a determina- tion only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products. (D) Alternate reduction of limit If the Commission determines under sub- paragraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commis- sion shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Com- mission determines to be technologically feasible to achieve for that product or prod- uct category. The amount of lead estab- lished by the Commission under the pre- ceding sentence shall be substituted for the 300 parts per million limit under subpara- graph (B) beginning on the date that is 3 years after August 14, 2008. (E) Periodic review and further reductions The Commission shall, based on the best available scientific and technical informa- tion, periodically review and revise down- ward the limit set forth in this subsection, no less frequently than every 5 years after promulgation of the limit under subpara- graph (C) or (D) to require the lowest amount of lead that the Commission deter- mines is technologically feasible to achieve. The amount of lead established by the Com- mission under the preceding sentence shall be substituted for the lead limit in effect im- mediately before such revision. (3) Application Each limit set forth in paragraph (2) (except for the limit set forth in subparagraphs (A) and (B)) shall apply only to a children’s prod- uct (as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a))) that is manufactured after the effective date of such respective limit. (b) Exclusion of certain materials or products and inaccessible component parts (1) Functional purpose exception (A) In general The Commission, on its own initiative or upon petition by an interested party, shall grant an exception to the limit in subsection (a) for a specific product, class of product, material, or component part if the Commis- sion, after notice and a hearing, determines that— (i) the product, class of product, mate- rial, or component part requires the inclu- sion of lead because it is not practicable or not technologically feasible to manufac-