After much anticipation, on September 8, the U.S. Consumer Product Safety Commission ("CPSC" or "the Commission") issued new regulations for consumer products that contain button cell and coin batteries. Specifically, the Commission voted unanimously (1) to determine that ANSI/UL 4200A, Standard for Safety for Products Incorporating Button Batteries or Coin Cell Batteries ("UL 4200A-2023") meets the performance and labeling requirements set forth in Reese's Law; (2) to issue a direct final rule ("DFR") to adopt UL 4200A-2023 as a mandatory safety standard for consumer products that contain button cell or coin batteries; and (3) to approve publication of a final rule ("FR") establishing labeling requirements for button cell or coin battery packaging. These related but separate rules have different implications for different segments of CPSC-regulated industry. There is much to unpack with both rules, but, in this post, we focus on the DFR to adopt UL 4200A-2023 as a standard for consumer products with button batteries.
Background: Reese's Law
On August 16, 2022, President Biden signed Reese's Law, which aims to "protect children and other consumers against hazards associated with the accidental ingestion of button cell or coin batteries." Under section 5 of Reese's Law, button cell or coin batteries are "(1) a single cell battery with a diameter greater than the height of the battery; or (2) any other battery, regardless of the technology used to produce an electrical charge, that is determined by the Commission to pose an ingestion hazard."
Section 2 of Reese's Law requires the Commission to promulgate a final consumer product safety standard for button cell or coin batteries and consumer products containing such batteries, including performance standards designed to better secure such batteries and warning label requirements alerting consumers to the hazards of battery ingestion. The mandatory safety standard will apply to any "consumer product containing or designed to use one or more button cell or coin batteries, regardless of whether such batteries are intended to be replaced by the consumer or are included with the product or sold separately." Under the statute, toy products that comply with 16 C.F.R. Part 1250 (which incorporates the ASTM F963-17 toy standard) are exempt.
In February 2023, CPSC published a notice of proposed rulemaking ("NPR") to implement the performance and labeling requirements of Reese's Law. The NPR proposed that the rule become effective for "all consumer products and packaging containing button cell or coin batteries . . . manufactured or imported after . . . 180 days following publication of the final rule."
The February NPR stated that "no existing voluntary standard fully meets the requirements" of Reese's Law, including UL 4200A as it stood at the time. The Commission therefore set forth its own proposed safety standard that it determined met all requirements of Reese's Law and was "based on modifications to several existing voluntary standards."
Since then, however, and with CPSC staff's feedback, UL revised UL 4200A to track the February NPR. The updated UL standard was published on August 30, 2023, and CPSC staff were ready with a Briefing Package for the DFR just one day later.
The revisions to UL 4200A-2023 were intended primarily to align that standard with the February CPSC NPR. However, even if manufacturers and importers had used the NPR as a preliminary target of potential requirements and are moving toward compliance already, a key difference between a Final Rule that would have flowed from the NPR and the DFR is the timing.
As noted, the NPR proposed a 180-day effective date. In the preamble to the DFR, CPSC staff reported that CPSC had received a number of comments that this period was too short and that a longer period, ranging from 12 to 36 months, would have been needed to comply with the rule reflected in the NPR. In light of these comments, if CPSC had moved forward with finalizing its NPR, CPSC staff would have recommended an 18-month effective date "to minimize disruption in the marketplace and acknowledge manufacturers' and laboratories' needs for more resources to safely and effectively comply with the rule."
In recommending that UL 4200A-2023 be adopted through the DFR, however, the DFR would have an "effective date of 30 days after publication" under the Administrative Procedure Act, so the rule would cover "[c]onsumer products containing button cell or coin batteries that are manufactured or imported after October 23, 2023," though "[t]hird[-]party testing and certification of children's products subject to this rule is not required until on or after December 20, 2023." Staff recommended "enforcement discretion" to stay enforcement of the new rule to provide a transition period, but left the period of that discretion to the Commission's determination.
When the Commission voted unanimously to accept staff's recommendation and adopt UL 4200A-2023 as a mandatory standard, it did so with one key change: setting the duration of the enforcement discretion to 180 days. Now, instead of the 18 months staff had originally proposed to allow industry to align and test to a finalized CPSC NPR, the DFR itself gives industry just 180 days — six months — to comply with and test to the new standard, which the UL standards committee drafted to align with that original NPR. Moreover, the Commission's amendment describes the enforcement discretion as "a 180-day transitional period" without specifying whether that means that products manufactured or imported at any time within that "transitional period" will have the benefit of that discretion. Thus, it is unclear if the Commission means that products manufactured or imported on October 24 (after the DFR takes effect) would be treated as lawful only during the period of the enforcement discretion and need to be removed from sale on March 20, 2024, or if products made or imported during the enforcement discretion would remain saleable even after the enforcement discretion expires.
"Significant" Two-Week Window for Change?
The DFR process has a wrinkle that provides some opportunity for industry to weigh in and argue to the Commission that more time is needed. As noted in the Briefing Package, DFR rulemaking is "an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comments," with a significant adverse comment being "one where the commenter explains why the rule would be inappropriate, including an assertion that undermines the rule's underlying premise or approach or a showing that the rule would be ineffective or unacceptable without change." In this instance, "the Commission is publishing this rule as a direct final rule, because CPSC does not expect any significant adverse comments."
The DFR provides a 14-day comment window. If, during that time, CPSC does not receive any significant adverse comments, the adoption of UL 4200A-2023 will become effective in 30 days and the enforcement discretion would expire 150 days later, on March 19, 2024. If, however, CPSC does receive a significant adverse comment in this 14-day period, "the Commission will withdraw this direct final rule. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule."
Presumably, many of the commenters who expressed concern at a 180-day effective date for the NPR will voice the same concern at what is essentially the same result under the DFR, particularly given the ambiguity surrounding the application of the Commission's "transitional period." However, whether the Commission — which voted to issue the NPR with its 180-day period — will view such concern as a "significant adverse comment" remains to be seen, as does any alteration the Commission might make in light of such a comment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.