CPSC OGC Advisory Opinion No. 307

U . S .

F R O O U C T S A F E T Y

C .

M a r c h

Aaron Locker, Esq.

Locker,

Greenberg

P.C.

One Penn Plaza

New York,

New York 10001

Dear Mr. Locker:

In an October 4, 1985 letter,

you discussed a preemption

question that arises under the Federal Hazardous S&stances Act

and involves a requirement enacted recently in Texas.

When you

I met on November 15,

1985 to discuss your letter,

you requested an advisory opinion on the question of whether the

FHSA preempts the portions of the Texas requirement concerning

firms that distribute toys and other articles intended for use by

children

Enclosed with your letter were a September 20, 1985 letter

from the Texas Department of Health

to the Toy

Manufacturers of America concerning registration; an October 1985

letter from Texas to firms that it believes must register under

the new requirement;

a blank registration form: Texas'

regulations implementing the requirement; a January 7, 1982

National Highway

Safety Administration preemption

interpretation;

and an August 10,

1983 federal district court

memorandum opinion.

At our meeting you also provided your

October 17,

1985 letter to Texas.

On November 19, 1985, Texas

submitted a letter on this subject.

Enclosed with that letter

were the requirement;

its implementing regulations, with

explanatory comments:

a booklet containing the Texas

Hazardous Substances Act and Rules Promulated Thereunder. On

February 14, 26, and 27,

1986 Texas sent additional letters,

including a legal memorandum.

This advisory opinion is based, in

on all of these

-#-

307

CONSUME=i

COMMISSION

\J\.,'A~iHINGTON,

0.

20207

11, 1986

QF;:iC:: OF THE

& Brainin,

("FHSA")

and

("toys")

.

("Texas")

Traffic

a.nd-

part,

documents.

f~

~ : {': f·/

1i!i·v•:1

-#-

307

f~

~ : {': f·/

1i!i·v•:1





H I

\] ^_` a bcdefghi

307

J KL M N O PQ R S T U V W X Y Z [

U.S. CONSUMER FROOUCT SAFETY COMMISSION

WASHINGTON,D. C. 20207

March 11, 1986

Aaron Locker, Esq.

Locker,

Greenberg & Brainin, P.C

207

11, 1986

QF;:iC:: OF THE

& Brainin,

("FHSA")

and

("toys")

.

("Texas")

Traffic

a.nd-

part,

documents.

f~

~ : {': f·/

1i!i·v•:1

-#-

307

f~

~ : {': f·/

1i!i·v•:1





H I

\] ^_` a bcdefghi

307

J KL M N O PQ R S T U V W X Y Z [

U.S. CONSUMER FROOUCT SAFETY COMMISSION

WASHINGTON,D. C. 20207

March 11, 1986

Aaron Locker, Esq.

Locker,

Greenberg & Brainin, P.C.

One Penn Plaza

New York, New York 10001

Dear Mr. Locker:

OFFICE OF THE

GENERAL COUNSEL

In an October 4, 1985 letter, you discussed a preemption

question that arises under the Federal Hazardous S&stances Act

("FHSA") and involves a requirement enacted recently in Texas.

When you and I met on November 15,

1985 to discuss your letter,

you requested an advisory opinion on the question of whether the

FHSA preempts the portions of the Texas requirement concerning

firms that distribute toys and othe r articles intended for use by

children ("toys").

Enclosed with your letter were a September 20, 1985 letter

from the Texas Department of Health ("Texas") to the Toy

Manufacturers of America concerning registration; an October 1985

letter from Texas to firms that it believes must register under

the new requirement;

a blank registration form: Texas'

regulations implementing the requirement; a January 7, 1982

National Highway Traffic Safety Administration preemption

interpretation;

and an August 10,

1983 federal district court

memorandum opinion.

At our meeting you also provided your

October 17, 1985 letter to Texas.

On November 19, 1985, Texas

submitted a letter on this subject.

Enclosed with that letter

were the requirement;

its implementing regulations, with

explanatory comments: and a booklet containing the Texas

Hazardous Substances Act and Rules Promulated Thereunder. On

February 14, 26, and 27, 1986 Texas sent additional letters,

including a legal memorandum.

This advisory opinion is based, in

part, on all of these documents.

A¥"\\ fl r. r'J'"

i

 Cibi

k:

Jvi\i

that letter

were the requirement;

its implementing regulations, with

explanatory comments: and a booklet containing the Texas

Hazardous Substances Act and Rules Promulated Thereunder. On

February 14, 26, and 27, 1986 Texas sent additional letters,

including a legal memorandum.

This advisory opinion is based, in

part, on all of these documents.

A¥"\\ fl r. r'J'"

i

 Cibi

k:

Jvi\i

Aaron Locker, Esq.

--Page Two--

Background

The Child Protection Act of 1966 amended the Federal

Hazardous Substances Labeling Act to provide a preemption

provision that was limited to precautionary labeling

requirements. Pub. L. 89-756.

Since 1976, however, the FHSA has

contained a preemption provision that states in relevant part:

under

of the Commission promulgated under or

for the enforcement

section 2(q) a requirement is established

to protect against a risk of illness or injury associated with a

hazardous substance,

no State or political subdivision of a State

may establish or continue in effect a requirement applicable

such substance and designed to protect against the same risk

illness or injury

such requirement is identical to the

requirement established under such regulations."'

15 U.S.C. 1261,

note (FHSA,

section N(b)(l)(B)).

The FHSA defines the term "hazardous substance" to include

toy or other article intended for use by

which

the [Commission] by regulation determines...presents an

electrical, mechanical, or thermal hazard."

15 U.S.C.

1261(f)(l)(D).

FHSA defines the term "banned hazardous

substance"

to include

toy,

or other article intended for use

by children,

which is a hazardous substance, or which bears or

contains a hazardous substance in such manner as to be

susceptible of access by a child to whom such toy or other

article is entrusted."

15 U.S.C. 1261(q)(l)(A)

an

electrical, mechanical, or thermal hazard."

15 U.S.C.

1261(f)(l)(D).

FHSA defines the term "banned hazardous

substance"

to include

toy,

or other article intended for use

by children,

which is a hazardous substance, or which bears or

contains a hazardous substance in such manner as to be

susceptible of access by a child to whom such toy or other

article is entrusted."

15 U.S.C. 1261(q)(l)(A).

The Commission has issued numerous regulations applicable

to toys,

including the ones mentioned in

letter to TMA:

electric trains, toy ovens, toy sewing machines, and toy

with peak sound pressure levels.

16 C.F.R. Part 1500 et seq.

Some of these regulations, such as the one for caps, classify an

entire category of toys as hazardous substances and banned

hazardous substances.

16 C.F.R. 1500.18(a)(5).

Then, a

regulation exempts some toys in that category from

such classification so long as they meet specified safety

criteria.

16 C.F.R.

1500.86(a)(6).

A second type of

regulation classifies as hazardous substances and banned

hazardous substances only toys in a category that fail to meet

specified safety criteria.

Examples of this type are the

regulations for electrical toys,

including electric trains and

toy ovens.

16 C.F.R. Part 1501.

·---··----·--·-·

..

"[I]f

"[a]ny

"companion"

regulations

of

unles,s

· The

"any

§

§

Texas'

§

chi..idren

caps

to

of

Aaron Locker, Esq.

--Page Two--

Background

The Child Protection Act of 1966 amended the Federal

Hazardous Substances Labeling Act to provide a preemption

provision that was limited to precautionary labeling

requirements. Pub. L. 89-756

ovens.

16 C.F.R. Part 1501.

·---··----·--·-·

..

"[I]f

"[a]ny

"companion"

regulations

of

unles,s

· The

"any

§

§

Texas'

§

chi..idren

caps

to

of

Aaron Locker, Esq.

--Page Two--

Background

The Child Protection Act of 1966 amended the Federal

Hazardous Substances Labeling Act to provide a preemption

provision that was limited to precautionary labeling

requirements. Pub. L. 89-756.

Since 1976, however, the FHSA has

contained a preemption provision that states in relevant part:

"{I]f under regulations of the Commission promulgated under or

for the enforcement of section 2(q) a requirement is established

to protect against a risk of illness or injury associated with a

hazardous substance, no State or political subdivision of a State

may establish or continue in effect a requirement applicable to

such substance and designed to protect against the same risk of

illness or injury unless such requirement is identical to the

requirement established under such regulations."'

15 U.S.C. 1261,

note (FHSA, section N (b) ( l) (B) )

.

The FHSA defines the term "hazardous substance" to include

"[a]ny toy or other article intended for use by children which

the [Commission] by regulation determines ... presents an

electrical, mechanical, or thermal hazard."

15 U. s. C.

1261 (f) (1) (D) .

The FHSA defines the term "banned hazardous

substance" to include "any toy,

or other article intended for use

by children, which is a hazardous substance, or which bears or

contains a hazardous substance in such manner as to be

susceptible of access by a child to whom such toy or other

article is entrusted."

15 U.S.C. § 1261 (q) ( 1 ) (A).

The Commission has issued numerous regulations applicable

to toys,

including the ones mentioned in Texas' letter to TMA:

electric trains, toy ovens, toy sewing machines, and toy caps

with peak sound pressure levels.

16 C.F.R. Part 1500 et seq

substance in such manner as to be

susceptible of access by a child to whom such toy or other

article is entrusted."

15 U.S.C. § 1261 (q) ( 1 ) (A).

The Commission has issued numerous regulations applicable

to toys,

including the ones mentioned in Texas' letter to TMA:

electric trains, toy ovens, toy sewing machines, and toy caps

with peak sound pressure levels.

16 C.F.R. Part 1500 et seq.

Some of these regulations, such as the one for caps, classify an

entire category of toys as hazardous substances and banned

hazardous substances.

16 C.F.R. § 1500.18 (a) (5).

Then, a

"companion" regulation exempts some toys in that category from

such classification so long as they meet specified safety

criteria.

16 C.F.R.

§ 1500.86 (a) (6).

A second type of

regulation classifies as hazardous substances and banned

hazardous substances only toys in a category that fail to meet

specified safety criteria.

Examples of this type are the

regulations for electrical toys,

including electric trains and

toy ovens.

16 C.F.R. Part 1501.

Aaron Locker, Esq.

--Page Three--

The Texas Hazardous Substances Act, a state law patterned

after the FHSA,

defines the term

to include

toy or other article other than clothing intended for use by

children which presents an electrical, mechanical, or thermal

hazard."

Section

Article 4476-13, V.T.C.S.

Implementing

regulations,

which use the same definition, state that they

designed to

to and be supplemental to the applicable

provisions and requirements of the

and

. 42.

A recent amendment to the Texas Hazardous Substances Act

requires registration and payment of a $150 annual fee by

manufacturers, repackers, and distributors

of hazardous

substances (excluding retailers,

unless they distribute hazardous

substances made to their specifications), prior to their doing

business in the state.

Section

Article 4476-13, V.T.C.S

visions and requirements of the

and

. 42.

A recent amendment to the Texas Hazardous Substances Act

requires registration and payment of a $150 annual fee by

manufacturers, repackers, and distributors

of hazardous

substances (excluding retailers,

unless they distribute hazardous

substances made to their specifications), prior to their doing

business in the state.

Section

Article 4476-13, V.T.C.S.

Regulations implementing the amendment again define hazardous

substance to include

toy or other article other than

clothing intended for use by children which present% an

electrical, mechanical, or thermal

10 Tex.Reg. 3768 (Sept. 27, 1985).

The implementing regulations specifically apply the

registration and fee requirement to manufacturers of hazardous

substances

"whose products might normally be banned, but who meet

specific exemption criteria enabling their products to be sold in

Texas...."

Id.

The two examples of such products

provided in the regulations are toy electric trains and toy caps.

and

Id.

Discussion

Based on the FHSA preemption provision, the Texas

requirement would be preempted if (1) an FHSA requirement has

been established to protect against a risk of illness or injury,

(2) the Texas requirement is designed to protect against the same

risk,

and (3) the Texas requirement is not identical to the FHSA

requirement.

Unless all three criteria are satisfied, there is

no express preemption under section 18(b)(l)(B) of the FHSA. As

noted earlier,

this advisory opinion will address only possible

preemption of the provisions in the Texas requirement that apply

to toy firms.

• -- - • --

-r----

----

-

- -·-------·---

- ---

"hazardous

substance

11

"any

1 ( 4) ,

"are

confGrm

[FHSA] ....

11

§§205.4l(c)

2A,

"any

hazard

....

"

§205.44(b)

(2) (A) (ii),

§205.44(g),

§205.44(g)

(1)

section 18(b)(l)(B) of the FHSA. As

noted earlier,

this advisory opinion will address only possible

preemption of the provisions in the Texas requirement that apply

to toy firms.

• -- - • --

-r----

----

-

- -·-------·---

- ---

"hazardous

substance

11

"any

1 ( 4) ,

"are

confGrm

[FHSA] ....

11

§§205.4l(c)

2A,

"any

hazard

....

"

§205.44(b)

(2) (A) (ii),

§205.44(g),

§205.44(g)

(1)

(2),

2.

•

Aaron Locker, Esq.

--Page Three--

The Texas Hazardous Substances Act, a state law patterned

after the FHSA, defines the term "hazardous substance" to include

"any toy or other article other than clothing intended for use by

children which presents an electrical, mechanical, or thermal

hazard."

Section 1(4), Article 4476-13, V.T.C.S.

Implementing

regulations,

which use the same definition, state that they "are

designed to conform to and be supplemental to the applicable

provisions and requirements of the [FHSA]...."

§§205.41(c) and

42.

3.

A recent amendment to the Texas Hazardous Substances Act

requires registration and payment of a $150 annual fee by

manufacturers, repackers, and distributors of hazardous

substances (excluding retailers, unless they distribute hazardous

substances made to their specifications), prior to their doing

business in the state.

Section 2A, Article 4476-13, V.T.C.S.

Regulations implementing the amendment again define hazardous

substance to include "any toy or other article other than

clothing intended for use by children which present% an

electrical, mechanical, or thermal hazard.... "

§205.44(b) (2)(A) (ii), 10 Tex.Reg. 3768 (Sept. 27, 1985).

The implementing regulations specifically apply the

registration and fee requirement to manufacturers of hazardous

substances "whose products might normally be banned, but who meet

specific exemption criteria enabling their products to be sold in

Texas ...."

§ 205.44(g), Id.

The two examples of such products

provided in the regulations are toy electric trains and toy caps.

§205.44(g) (l) and (2), Id

enting regulations specifically apply the

registration and fee requirement to manufacturers of hazardous

substances "whose products might normally be banned, but who meet

specific exemption criteria enabling their products to be sold in

Texas ...."

§ 205.44(g), Id.

The two examples of such products

provided in the regulations are toy electric trains and toy caps.

§205.44(g) (l) and (2), Id.

Discussion

Based on the FHSA preemption provision, the Texas

requirement would be preempted if (1) an FHSA requirement has

been established to protect against a risk of illness or injury,

(2) the Texas requirement is designed to protect against the same

risk,

and (3) the Texas requirement is not identical to the FHSA

requirement.

Unless all three criteria are satisfied, there is

no express preemption under section 18 (b) (1) (B) of the FHSA. As

noted earlier, this advisory opinion will address only possible

preemption of the provisions in the Texas requirement that apply

to toy firms.

Aaron Locker, Esq.

--Page Four--

1. FHSA requirements.

Numerous FHSA requirements apply

toys that present electrical, mechanical, and thermal risks.

not every such toy or risk is covered by a regulation,

there are broad regulations for electrical toys, toys intended

for children under eight containing sharp points and edges, toys

intended for children under three containing small parts, and

others.

These regulations; apply to all toys that

present the electrical, mechanical,

or thermal risks addressed,

and not only to the toys that fail to meet the established safety

criteria. In particular,

their applicability does not depend on

whether they are classified under the FHSA as "hazardous

substances."

Drawing a substantive distinction between the

types of regulations discussed earlier--the type used to regulate

compared with the type used to regulate electrical toys--is

not justified because they only differ in regulatory format.

2.

Texas requirement

ished safety

criteria. In particular,

their applicability does not depend on

whether they are classified under the FHSA as "hazardous

substances."

Drawing a substantive distinction between the

types of regulations discussed earlier--the type used to regulate

compared with the type used to regulate electrical toys--is

not justified because they only differ in regulatory format.

2.

Texas requirement.

-

-

Neither the Texas

nor

its implementing regulations state directly whether any risk(s)

of injury is being addressed.

In addition,

I am unaware of any

. legislative history or other explanatory documents that are

relevant to this question.

The Texas requirement might be

protecting against electrical, mechanical, and thermal risks

presented by toys,

perhaps by identifying firms that make such

toys to facilitate any recalls that become necessary.

However,

it is alternatively possible that the requirement is only

intended to raise revenue for the state and not address any risk

of injury at all.

3.

identicalness.

The Texas requirement, for registration

and annual payment of a' fee,

applies to firms that distribute or

make any toy presenting an electrical, mechanical, or thermal

hazard.

In contrast,

the Commission requirements ban toys that

present an electrical, mechanical,

or thermal risk because of

failure to meet established safety criteria.

so

safety cr

responsib

requireme

distribut

or

Commissio

lo

as a toy complies with the Commission's

it eria,

its manufacturers and distributors have n

il

under Commission regulations.

Under the

nt

firms must register if they manufacture or

e any toy presenting a potential electrical,

1 risk,

regardless of whether such toys comply wi

n regulations addressing those risks.

i fied

other

T'exas

nical,

h the

While

caps,

therma

,ng

ities

,,

.,;.,

potentiallv

requ,irernent

spec

0

mecha

t

to

two

Aaron Locker, Esq.

--Page Four--

1. FHSA requirements.

Numerous FHSA requirements apply to

toys that present electrical, mechanical, and thermal risks

a potential electrical,

1 risk,

regardless of whether such toys comply wi

n regulations addressing those risks.

i fied

other

T'exas

nical,

h the

While

caps,

therma

,ng

ities

,,

.,;.,

potentiallv

requ,irernent

spec

0

mecha

t

to

two

Aaron Locker, Esq.

--Page Four--

1. FHSA requirements.

Numerous FHSA requirements apply to

toys that present electrical, mechanical, and thermal risks.

While not every such toy or risk is covered by a regulation,

there are broad regulations for electrical toys, toys intended

for children under eight containing sharp points and edges, toys

intended for children under three containing small parts, and

others.

These regulations; apply to all toys that potentiallv

present the electrical, mechanical,

or thermal risks addressed,

and not only to the toys that fail to meet the established safety

eri ter ia. In particular,

their applicability does not depend on

whether they are classified under the FHSA as "hazardous

substances."

Drawing a substantive distinction between the two

types of regulations discussed earlier--the type used to regulate

caps, compared with the type used to regulate electrical toys--is

not justified because they only differ in regulatory format.

2. Texas requirement-

Neither the Texas requirement nor

its implementing regulations state directly whether any risk(s)

of injury is being addressed.

In addition,

I am unaware of any

legislative history or other explanatory documents that are

relevant to this question.

The Texas requirement might be

protecting against electrical, mechanical, and thermal risks

presented by toys, perhaps by identifying firms that make such

toys to facilitate any recalls that become necessary.

However,

it is alternatively possible that the requirement is only

intended to raise revenue for the state and not address any risk

of injury at all.

3.

identicalness

this question.

The Texas requirement might be

protecting against electrical, mechanical, and thermal risks

presented by toys, perhaps by identifying firms that make such

toys to facilitate any recalls that become necessary.

However,

it is alternatively possible that the requirement is only

intended to raise revenue for the state and not address any risk

of injury at all.

3.

identicalness.

The Texas requirement, for registration

and annual payment of a' fee, applies to firms that distribute or

make any toy presenting an electrical, mechanical, or thermal

hazard.

In contrast,

the Commission requirements ban toys that

present an electrical, mechanical,

or thermal risk because of

failure to meet established safety criteria.

so long as a toy complies with the Commission's specified

safety criteria,

its manufacturers and distributors have no other

responsib ilities under Commission regulations.

Under the T' exas

requirement, firms must register if they manufacture or

distribute any toy presenting a potential electrical, mechanical,

or thermal risk,

regardless of whether such toys comply with the

Commission regulations addressing those risks.

Aaron Locker, Esq.

--Page Five--

This situation has some similarities to one addressed by a

federal court in 1983.

Juvenile Products Manufacturers

Association,

568

714, 716 (E.D.N.Car.

1983).

North

requiring manufacturers to undergo a

fee-based verification process for compliance of their child

passenger restraint

(car seats) with the applicable

federal standard:

The court held North Carolina's law to be

preempted,

under a federal statutory scheme that is similar

the FHSA scheme.

The court concluded that

Congress

sought joint enforcement by both

the federal and state governments to insure

the legislation's success.

While

the states play an important role in the

success of the federal standards, that role

must be performed within the prescribed

limitations

The court held North Carolina's law to be

preempted,

under a federal statutory scheme that is similar

the FHSA scheme.

The court concluded that

Congress

sought joint enforcement by both

the federal and state governments to insure

the legislation's success.

While

the states play an important role in the

success of the federal standards, that role

must be performed within the prescribed

limitations.

Even when states

to

enforce standards identical to those existing

at the federal level,

they may not do so in any

way which significantly burdens manufacturers....

Id. at 719.

Based on available information, I cannot determine

confidently the validity of the Texas requirement for

registration and annual fee payment by toy firms.

Conclusion

For the reasons discussed above, I conclude that FHSA

requirements have been established to protect against electrical,

mechanical,

and thermal risks presented by toys.

However, I

cannot conclude whether the Texas requirement-is designed to

protect against those same risks or, if so, whether it is

to the

requirements.

Sincerely

Daniel R. Levinson

General Counsel

cc:

Mr. R.D.

Jr.

Texas Department of Health

,

Inc.

v.

Edmisten,

F.Supp.

Carolina

was

systems

to

attemp't.

11 identical

11

FHSli.

yours,

~~,;JI?

dQ_,,~'--'~

Sowards,

Sincerely

Daniel R. Levinson

General Counsel

yours,

~~,;JI?

dQ_,,~'--'~

,

Aaron Locker, Esq.

--Page Five--

This situation has some similarities to one addressed by a

federal court in 1983.

Juvenile Products Manufacturers

Association, Inc. v. Edmisten, 568 F.Supp. 714, 716 (E.D.N.Car.

1983).

North Carolina was requiring manufacturers to undergo a

fee-based verification process for compliance of their child

passenger restraint systems (car seats) with the applicable

federal standard:

The court held North Carolina's law to be

preempted,

under a federal statutory scheme that is similar to

the FHSA scheme.

s

Association, Inc. v. Edmisten, 568 F.Supp. 714, 716 (E.D.N.Car.

1983).

North Carolina was requiring manufacturers to undergo a

fee-based verification process for compliance of their child

passenger restraint systems (car seats) with the applicable

federal standard:

The court held North Carolina's law to be

preempted,

under a federal statutory scheme that is similar to

the FHSA scheme.

.

The court concluded that

Congress sought joint enforcement by both

the federal and state governments to insure

the legislation's success.

While

the states play an important role in the

success of the federal standards, that role

must be performed within the prescribed

limitations.

Even when states attempt to

enforce standards identical to those existing

at the federal level, they may not do so in any

way which significantly burdens manufacturers ....

Id. at 719.

Based on available information, I cannot determine

confidently the validity of the Texas requirement for

registration and annual fee payment by toy firms.

Conclusion

For the reasons discussed above, I conclude that FHSA

requirements have been established to protect against electrical,

mechanical,

and thermal risks presented by toys.

However, I

cannot conclude whether the Texas requirement-is designed to

protect against those same risks or, if so, whether it is

"identical" to the FHSA requirements.

Sincerely yours,

 .s e J..

Daniel R. Levinson

General Counsel

cc:

Mr. R.D. Sowards, Jr.

Texas Department of Health