Rule-Making Notices (Hearing Notices)

rulemaking_notices Wisconsin Administrative Register No. 637, 1/31/2009

Rule-Making Notices

Notice of Hearing

Agriculture, Trade and Consumer Protection

rulemaking_notices CR 09-002 CR 09-002

The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) announces that it will hold a public hearing on a proposed amendment to Chapter ATCP 139, Wis. Adm. Code, relating to consumer product safety.

Hearing Information

Date	Location
February 12, 2009 At 10:00 AM	WI Dept. of Agriculture, Trade and Consumer Protection 2811 Agriculture Drive Board Room, 1st Floor Madison, WI 53718

Hearing impaired persons may request an interpreter for these hearings. Please make reservations for a hearing interpreter by February 2, 2009, by writing to Michelle Reinen, Division of Trade and Consumer Protection, P.O. Box 8911, Madison, WI 53708-8911, [e-mail], telephone [phone]. Alternatively, you may contact the DATCP TDD at [phone]. Handicap access is available at the hearings.

Submission of Written Comments

DATCP will hold the public hearing at the time and location shown above. DATCP invites the public to attend the hearing and comment on the rule. Following the hearing, the hearing record will remain open until Friday, February 27, 2009 for additional written comments. Comments may be sent to the Division of Trade and Consumer Protection at the address below, by email to [e-mail] or online at https://apps4.dhfs.state.wi.us/admrules/public/Home.

To provide comments or concerns relating to small business, you may also contact DATCP's small business regulatory coordinator Keeley Moll at the address above, or by emailing to [e-mail] or by telephone at [phone].

Copies of Proposed Rule

You may obtain a free copy of this proposed rule by contacting the Wisconsin Department of Agriculture, Trade and Consumer Protection, Division of Trade and Consumer Protection, 2811 Agriculture Drive, P.O. Box 8911, Madison, WI 53708. You may also obtain copies by calling [phone] or emailing [e-mail]. Copies will also be available at the hearing. To view the proposed rule online, go to: https://apps4.dhfs.state.wi.us/admrules/public/ Home.

Analysis Prepared by the Department of Agriculture, Trade and Consumer Protection

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state laws to protect consumers from hazardous consumer products, including hazardous household substances and toys. DATCP has adopted consumer product safety rules under ch. ATCP 139, Wis. Adm. Code. This rule updates and reorganizes current rules, and bans the sale of certain products that pose an unreasonable hazard which cannot be adequately cured by product labeling.

Statutes interpreted

Sections 100.37, 100.42 and 100.20, Stats.

Statutory authority

Sections 93.07 (1), 100.37 (2), 100.42 (2), and 100.20 (2), Stats.

Explanation of agency authority

DATCP has general authority, under s. 93.07(1), Stats., to interpret laws under its jurisdiction. DATCP has authority, under s.100.37, Stats., to regulate hazardous substances including toys and other articles intended for use by children. DATCP has authority under s. 100.42, Stats., to regulate unsafe consumer products. DATCP also has broad authority, under s. 100.20, Stats., to regulate unfair methods of competition and unfair trade practices in business.

Related statutes

DATCP administers several consumer product safety statutes including s. 100.37, Stats. (hazardous household substances), 100.42, Stats. (consumer product safety), 100.41, Stats. (flammable fabrics) and 100.43, Stats. (poison prevention packaging).

Background

The Department of Agriculture, Trade and Consumer Protection (DATCP) administers state laws to protect consumers from hazardous consumer products, including hazardous household substances and toys. DATCP has adopted consumer product safety rules under ch. ATCP 139, Wis. Adm. Code. Current DATCP rules do all of the following:

•   Require warning labels on certain products.

•   Ban certain products that pose serious hazards which cannot be adequately cured by labeling. Most of these products are also banned by federal rules.

•   Provide exemptions for certain small packages and minor hazards.

DATCP last updated its consumer product safety rules 8 years ago. Since then, the federal consumer product safety commission and DATCP have identified serious product safety hazards that are not addressed by current DATCP rules. This rule does all of the following:

•   Reorganizes and clarifies current rules.

•   Bans certain products, because they pose serious safety hazards that cannot be adequately cured by labeling (see below). Some of these products are also banned by federal rules.

•   Provides that violations of consumer product safety rules also constitute unfair business practices under s. 100.20, Stats.

Rule content

Current DATCP rules ban a number of dangerous consumer products, including dangerous children's products (most of the products are also banned by federal rules). This rule reorganizes and clarifies a number of the current product bans, without substantially altering those bans. This rule also adds new bans related to the following consumer products:

Lawn darts that can cause puncture wounds

Current DATCP rules ban “lawn darts" that are intended for use by children. The current DATCP rules are based on federal rules (16 CFR 1500.18(a)(4)). Recently, the federal Consumer Product Safety Commission adopted additional rules (16 CFR 1306) to ban “lawn darts" labeled for adult use, because those “lawn darts" are often used by children and pose a serious puncture wound hazard to children and adults.

Consistent with current federal rules, this rule bans all “lawn darts," regardless of whether they are intended for use by children or adults.

Infant walkers that may propel infants down stairways

Current DATCP rules and federal rules (16 CFR 1500.18(a)(6)) ban hazardous infant walkers, but do not address stair-fall hazards. There is a voluntary industry standard (ASTM standard) for stair-fall protection, but some manufacturers and importers are not complying. The federal consumer product safety commission has documented that most “baby walker" incidents now involve children falling down stairs.

This rule bans infant walkers that are banned by 16 CFR 1500.18(a)(6) and that fail to meet the stair-fall protection standard in ASTM standard F 977-07 (“Standard Consumer Safety Specification for Infant Walkers"). This rule applies to infant walkers, also known as “baby walkers," “baby bouncers," and “walker jumpers," that are propelled by infants. It does not apply to baby strollers that are propelled by attending adults.

Toys with magnets that can be swallowed and can cause serious intestinal injury or death

Small and powerful rare-earth magnets are now widely used in toys, building sets and jewelry. As the number of products with magnets has increased, so has the number of serious injuries to children. In several reported incidents, magnets have fallen out of toys and been swallowed by children. Swallowed magnets can attract separately-swallowed metal objects through intestinal walls, and get trapped in place. The trapped magnets can twist or pinch the intestines, and can cause holes, blockages, infection and death if not treated properly and promptly. These injuries are difficult to diagnose. In the United States over the past 3 years, there have been 86 reported injuries, one reported death, and about 8 million magnetic toys recalled.

This rule bans products which contain magnets that may be swallowed by a child. The ban does not apply to toys that comply with 15 USC 2056b which adopts ASTM standard 963-07 (“standard consumer safety specification for toy safety"). Nor does it apply to toys in which the magnets are used only as internal parts of motors, relays, speakers or other electrical components, provided that the magnetic action is not part of the play pattern of the toy.

Cribs that can strangle or suffocate infants

Over the past 20 years, more than 1,100 children have died from crib-related injuries in the United States, and more than 11,600 children are hospitalized with crib-related injuries each year. Current federal rules (16 CFR 1500.18(13) and (14)) ban cribs and related enclosures that fail to comply with applicable federal standards under 16 CFR1508 and 1509 (the federal rules apply to cribs manufactured after 1974 and 1983, respectively).

This rule bans baby cribs and related enclosures that are currently banned by federal law under 16 CFR 1500.18(13) or (14).

Yo-yo elastic tether toys that can strangle children

Yo-yo elastic tether toys, often called “yo-yo waterballs," have a weighted object attached to a stretchable elastic cord that can extend to over 2 feet. (These “yo-yo waterballs" are different from traditional yo-yos, which do not have stretchable elastic cords). Instructions tell children to “throw the ball into the air and try and catch it," encouraging a lasso-like movement. But the weighted object is heavy enough to generate significant momentum when swung like a lasso, which makes the toy difficult to control. In Wisconsin, there have been 7 reported incidents in which children became unconscious after the cord wrapped tightly around the child's neck and cut off circulation. In other cases, children have suffered broken blood vessels affecting eyes, face and head areas. Illinois, New Jersey, the United Kingdom and Australia have already banned this toy from sale.

This rule bans yo-yo elastic tether toys that do not comply with the standards for yo-yo elastic tether toys established by 15 USC 2056b which adopts ASTM standard 963-07 (“standard consumer safety specification for toy safety").

Toys containing excessive concentrations of lead, which can cause serious long-term health effects

Recently enacted federal law (15 USC 1278a) treats as a hazardous substance any children's products that contain more lead than 600 parts per million beginning 180 days after August 14, 2008, 300 parts per million beginning on the date that is one year after August 14, 2008, and 100 parts per million beginning on the date that is 3 years after August 14, 2008.

This rule bans children's products, containing lead, which are treated as banned hazardous substances under 15 USC 1278a. This ban does not apply to any of the following:

•   Electronic devices, including batteries, which meet alternative federal standards related to lead exposure.

•   A product component that is fully covered or encased (by something more than paint or electroplating), so that the component is inaccessible to a child despite normal and reasonably foreseeable use and abuse of the product.

Comparison with federal regulations

The following federal regulations apply to consumer products that are newly banned under this rule (federal regulations also apply to some products banned by current DATCP rules):

•   Lawn darts. Lawn darts intended for use by children are currently banned under 16 CFR 1500.18(a)(4). Lawn darts intended for use by adults are currently banned under 16 CFR 1306. This rule bans lawn darts, consistent with the federal bans.

•   Infant walkers. 16 CFR 1500.18(a)(6) bans infant walkers which have exposed parts capable of amputating, crushing, lacerating, fracturing, bruising, or causing hematomas or other injuries to fingers, toes, or other parts of a young child's anatomy. This rule bans infant walkers that are banned by the federal rules. The current federal ban does not address “stair-fall" hazards. This rule bans infant walkers that fail to comply with recognized industry standards related to “stair-fall" protection (ASTM standard F 977-07).

•   Toys with magnets. Newly-enacted 15 USC 2056b adopts ASTM standard 963-07 (“standard consumer safety specification for toy safety") which establishes standards for, among other things, toys with magnets that may be swallowed by a child. This rule bans toys with magnets that do not comply with the standards established by 15 USC 2056b.

•   Baby cribs. 16 CFR 1508 and 16 CFR 1509 bans baby cribs that do not meet federal standards intended to reduce the risk of injury. This rule bans cribs that are banned by federal rules

•   Yo-yo elastic tether toys. Newly-enacted 15 USC 2056b adopts ASTM standard 963-07 (“standard consumer safety specification for toy safety") which establishes standards for, among other things, yo-yo elastic tether toys. This rule bans yo-yo elastic tether toys that do not comply with the standards established by 15 USC 2056b.

•   Lead in children's products. 15 USC 1278a treats as a hazardous substance any children's products that contain more lead than 600 parts per million beginning 180 days after August 14, 2008, 300 parts per million beginning on the date that is one year after August 14, 2008, and 100 parts per million beginning on the date that is 3 years after August 14, 2008. This rule bans children's products containing excessive lead, consistent with the federal law.

Comparison of rules in adjacent states

Wisconsin has a fairly well-developed consumer product safety program, with broad authorizing legislation modeled after federal law. Wisconsin statutes authorize DATCP, as Wisconsin's equivalent of the federal consumer product safety commission, to issue orders and adopt rules regulating dangerous consumer products.