Scope Statements
Agriculture, Trade and Consumer Protection
Subject
Revising s.
ATCP 139.055, relating to toys and other articles that present a hazard and unreasonable risk of personal injury.
Objective of the Rule
This rule will ban and prohibit from sale or distribution the following products because they present a hazard and unreasonable risk of personal injury:
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Any toy or other article intended for use by children that bears any paint or other similar surface-coating material containing lead compounds of which the lead content is in excess of federal or industry standards.
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Any toy or other article intended for use by children that contains magnets which may be swallowed by a child.
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Any baby crib that does not comply with federal or industry standards.
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Any baby walker that does not comply with industry standards for stair-fall protection.
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Any yo-yo toy that contains an object attached to a rubber cord.
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Lawn darts and other similar sharp-pointed toys usually intended for outdoor use and having the potential for causing puncture wound injury.
This rule will adopt any consumer product safety standard that has been adopted pursuant to the federal consumer product safety act,
15 USC 2051 et seq., as it may apply to any of the products regulated by the rule.
This rule will clarify the statutory authority that applies to the products regulated by the rule, and determine whether the sale or distribution of the product is an unfair method of competition or trade practice under s.
100.20(2), Wis. Stats.
Policy Analysis
Under s.
100.37 (2) (d), Stats., the department may prohibit by rule the sale of any toy or article intended for use by children which present a mechanical hazard such that the public health and safety can only be protected by keeping the toy or article out of the channels of commerce in this state.
Under s.
100.42 (2), Stats., the department may by rule adopt consumer product safety standards that have been promulgated pursuant to the federal consumer product safety act.
Section
ATCP 135.055, Wis. Adm. Code, is also adopted under s.
100.20 (2), Stats., which authorizes the department to declare the sale or distribution of a product to be an unfair trade practice and to prescribe by rule fair trade practices.
The products listed have been recognized by the Federal Consumer Product Safety Commission (CPSC) and associations representing both consumers and industry as hazardous products that present an unreasonable risk of personal injury. These products are widely distributed for sale in Wisconsin by a number of different businesses. Current law does not adequately protect the public from harm that may be caused by these hazardous products. The distribution or sale of these products is an unfair method of competition and an unfair trade practice.
Section
ATCP 137.055, Wis. Adm. Code, has been promulgated under the authority of, among other laws, ss.
100.20 (2),
100.37 (2), and
100.42 (2), Stats. This rule may be clarified by further explaining how these authorities apply to the products regulated by the rule.
Policy Alternatives
Issue special orders under ss.
100.37 (2) (e) and
100.42 (3), Stats., against individual businesses prohibiting the business from selling or distributing a specific product. If the product is widely distributed and sold by a large number of businesses, a special order will have to be issued to each individual business. Whenever a business not subject to a special order begins distributing or selling the product, the department will have to issue a new special order.
Do nothing. If DATCP does nothing, Wisconsin will have to depend on the CPSC for enforcing bans and standards. Being a Federal agency, the CPSC is less likely to act against products that pose a regional threat to Wisconsin children. The CPSC has not imposed bans or required mandatory standards for all of the hazardous products that would be subject to this rule. Enforcement options are more limited under Federal law than they would be under this rule.
Statutory Authority
Entities Affected by the Rule
This rule protects children and the public from harm caused by hazardous and unsafe products in the marketplace. This rule imposes restrictions on businesses that distribute or sell products that present a hazard and unreasonable risk of personal injury. This rule protects businesses that distribute or sell safe products from competition by businesses that distribute and sell similar products that are hazardous and unsafe. This bill protects consumers from unknowingly purchasing products that are hazardous.
Comparison with Federal Regulations
The CPSC regulates products that present a hazard and unreasonable risk of personal injury by prescribing safety standards and imposing a ban on sales and distribution. Enforcement options for Wisconsin under the federal laws are limited. In recent years, the CPSC has refrained from prescribing standards or imposing bans, and has instead issued advisory statements recommending compliance with voluntary industry standards.
Estimate of Time Needed to Develop the Rule
DATCP estimates that it will use approximately .5 FTE staff time to develop this rule. This includes research, drafting, preparing related documents, holding public hearings, coordinating advisory council discussions and communicating with affected persons and groups. DATCP will assign existing staff to develop this rule.
