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CERAMIC DECORATING: Regulatory Compliance Updates

January 1, 2011
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For the past few months, the Society of Glass and Ceramic Decorated Products (SGCDpro) has been busy keeping ahead of potential cadmium regulation. Positive news has been received from the Consumer Product Safety Commission (CPSC) regarding this issue. The CPSC essentially punted the cadmium in jewelry issue back to that industry, asking them to work with ASTM International to develop appropriate standards.

Unfortunately, this did not stop an overzealous reporter who continues to try to undermine the industry's history of providing safe product to consumers. Recent Associated Press (AP) articles circulated to media present a lopsided view of the safety of decorated glassware. SGCDpro provided the reporter with unprecedented access to its industry experts, yet the recent articles circulated to media did not include any of the experts' comments, including those provided by a retired U.S. Food and Drug Administration (FDA) scientist who has a lengthy history of working with glass. SGCDpro also allowed the reporter access to its list of qualified member labs that regularly test glass and ceramic items. AP chose, instead, to rely on a toy lab to test glassware, some of which was more than 25 years old. SGCDpro has chosen not to issue a press statement related to this article or to the subsequent voluntary recalls of glassware by Coca-Cola and Vandor, LLC.

The CPSC is not participating in the Coca-Cola glass recall, as the agency does not consider the glass to be a children's product and no heavy metal limits exist for those over the age of 12. The agency did indicate that it does consider the Vandor glasses (featuring licensed cartoon characters) to be children's products. Vandor has assured SGCDpro that the glasses met all applicable laws for lead content but has recalled the products nonetheless. It is unclear whether the CPSC will participate directly in the recall. Neither Vandor nor Coca-Cola is a current member of SGCDpro.

As a result of the above actions, SGCDpro has decided to work with ASTM to develop recognized standards for decorated glassware and ceramicware. (Current standards only address the lip and rim area and dishwasher resilience.) More information will be provided as it is developed.

SGCDpro has been heavily invested in these regulatory issues on behalf of the glass and ceramic industries, and feels that its efforts have been well-received by legislators and government agencies. SGCDpro Washington lobbyist Walt Sanders, SGCDpro Executive Director Myra Warne, and I spearheaded these efforts, and we are pleased with the current posture taken by the agency. To that end, we encourage member and nonmember companies to work with SGCDpro in presenting the industry's position, as opposed to seeking individual meetings on behalf of their own companies. This strategy allows us to better present an overall industry message to those making and enforcing consumer law.

CSPC Defers to ASTM On Cadmium Standards

The CPSC has decided not to establish a cadmium standard at this time; instead, the commission will defer to ASTM International. Two subcommittees of ASTM have been drafting voluntary limits for several months. These limits would apply specifically to toys and children's jewelry.

After months of deliberations by a CPSC-established panel, as well as extensive testing by CPSC scientists, the agency announced an "acceptable daily intake" of cadmium. That daily intake is more than triple what the agency had previously considered the maximum safe level (from 0.03 micrograms for every kilogram of a child's body weight per day to 0.1 micrograms per kilogram per day).

Agency staff recommended that level in the hope that ASTM-which includes representatives of the jewelry industry and consumer advocates-will adopt it. In a letter to the ASTM Subcommittee on Toy Safety, the CPSC indicated that staff studies had suggested that the amount of lead or cadmium that could migrate from small items that might be swallowed should be tested based on solubility in an acid solution over a 24-hour period. The CPSC left open the possibility of adopting mandatory standards if it decides the ASTM levels aren't satisfactory.

SGCDpro is considering pursuing an ASTM testing standard for cadmium leaching in glass and ceramic products. No decision has yet been made on whether or how this would be accomplished.

CPSC Acknowledges Shrek Glasses Were Safe

In announcing new safe levels for cadmium exposure, the CPSC acknowledged that the Shrek glasses recalled by McDonald's in June 2010 were safe. Even when tested originally, only one of four in the set was considered unsafe under the former limits that the agency refused to reveal until the new recommendations were announced.

In a letter to Rep. Zack Space of Ohio, Inez Tenenbaum, chair of the CPSC, stated that she continues to believe that "the Commission, working with the best science available at the time, did the right thing by working with McDonald's on a voluntary recall of the glasses." Space had met with SGCDpro representatives and wrote to the CPSC inquiring about the basis for the recall, pointing to the number of Ohio workers affected by fallout from the recall.

CPSC Publishes New "Interpretive Rule"

CPSC recently issued what it calls an interpretive rule that is intended to help suppliers and consumers better understand what products might be covered by the Consumer Product Safety Improvement Act (CPSIA) of 2008.

The statutory definition of "children's product" specifies factors that are to be considered when determining whether a consumer product is primarily intended for a child 12 years of age or younger. These factors include:
  • A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
  • Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.
  • Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
  • The Age Determination Guidelines issued by the Commission staff in September 2002 and any successor to such guidelines.
The publication of the final Interpretive Rule encompasses 14 Federal Register pages, most of which are CPSC responses to 32 numbered comments raised during the public review period. In the explanation of the rule, the commission stated that the determination of whether a product meets the definition of a children's product "depends on factual information that may be unique to each product and, therefore, would need to be made on a case-by-case basis.... This document does not impose any additional requirements beyond those in the CPSIA, but informs the public of the commission's interpretation of the term children's product."

SGCDpro members may be especially interested by the notice of the rulemaking that states that "certain elements of the factors are common to many children's products and cut across numerous product categories. These elements are decorations or embellishments with childish themes that invite use by a child 12 years of age or younger, sizing a product for a child, or marketing a product in a way designed to make it appeal primarily to children." A complete copy of the document is available at www.sgcd.org.

CPSC Searchable Database to Go Live by March

The CPSC met on November 24, 2010, to vote on a final rule on the required online, searchable public database that it must implement by March. The vote was 3-2, with both Republican commissioners dissenting. Strict time limits imposed by the CPSIA will significantly limit the ability of manufacturers to review proposed releases to correct mistakes or errors in the new online database. Industry sources worry about the reliability of the information and the potential for harm to manufacturers and decorators in the database, which will collect consumer complaints about harmful or dangerous products.

The definition of a consumer has been broadened to include attorneys, investigators and consumer advocacy groups who need not have first-hand experience of a product in order to file a complaint. It is suspected that this will result in endless frivolous lawsuits by "bounty-hunter" type attorneys, similar to what decorators, manufacturers and retailers have experienced with California Proposition 65.

The law establishes strict timelines. The CPSC must send consumer reports to manufacturers within five days of filing, and the reports must be put in the database within 10 days after that (unless the CPSC agrees that the report is inaccurate). Even if the manufacturer has reviewed the reports and sent objections to the CPSC in time, there is no legal obligation for the CPSC staff to resolve the issues raised by the comments before the report is included in the database. If the CPSC has not completed its analysis, or if it disagrees with the manufacturer, the complaint goes public.

Incomplete or inaccurate consumer reports will present significant risks to manufacturers. It will likely be very difficult to respond effectively within the time allowed, so even obviously incorrect reports could be included in the database. These reports would then be available to consumers, reporters, advocacy groups or plaintiffs' attorneys.

Deco 2011 Features Legislative Session

SGCDpro will feature an Ask the Experts legislative session at Deco 2011 in Pittsburgh, March 19-21. The panel will include expert attorneys, industry professionals and test lab representatives. Members will be able to ask specific questions relative to complying with today's vast array of laws and initiatives. Registration information is available at www.sgcd.org.

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