CPSC Creates "15(j)" Hazard List, Certain Hairdryers Refused Entry

June 28, 2011 by Barbara Chaves|CPSC and Textiles

The Consumer Product Safety Commission has issued a final rule that creates a new “Substantial Product Hazard List” and names as the first product on the list, any hand-supported hair dryer without UL-compliant integral immersion protection. Effective July 28, 2011, these non-compliant hair dryers must be immediately reported to CPSC, are subject to recall, and will be refused admission into the U.S. A similar rule for drawstrings in children’s upper outerwear is expected.

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(This is the CPSC’s first “15(j)” rule, a new authority established by the Consumer Product Safety Improvement Act of 2008 (CPSIA). Section 15(j) of the Consumer Product Safety Act (CPSA), as amended by the CPSIA, provides this new general defect authority that allows CPSC to define the presence or absence of characteristics meeting certain criteria¹ as a defect for a class of products. The characteristic may be one that should not be present (e.g. drawstring) or one that should be present (e.g. hairdryer immersion protection). CPSC has stated that “15(j)" in effect allows the agency to make aspects of voluntary standards mandatory without establishing a new mandatory standard.)

Products w. Substantial Hazards Subject to Reporting, Recalls, Refused Entry

The final rule creates a new 16 CFR Part 1120 titled, “Substantial Product Hazard List” which will include consumer products or classes of consumer products with characteristics whose existence or absence present a substantial product hazard (i.e. a harmful defect).²

Any product on this new list faces the following restrictions and requirements:

Must be reported immediately to CPSC -- is subject to the reporting requirements of section 15(b) of the CPSA (15 USC 2064(b)). A manufacturer (includes importer) who fails to report a substantial product hazard to the Commission is subject to civil and criminal penalties.
Subject to corrective action (i.e., recall) -- is subject to corrective action under section 15(c) and (d) of the CPSA (15 USC 2064(c), (d)) which means that CPSC can order the manufacturer, distributor, or retailer of the product to offer to repair or replace the product, or to refund the purchase price to the consumer.
Will be refused admission -- will be refused admission into the U.S. under section 17(a) of the CPSA (15 USC 2066(a)).

Hair Dryers w/out UL-Compliant Immersion Protection Added to List

The final rule adds the following product as the first entry on the Substantial Product Hazard List:

Hand-supported hair dryers, which are imported or introduced into commerce on or after July 28, 2011, that do not provide integral immersion protection in compliance with the requirements of:

Section 5 of Underwriters Laboratories (UL) Standard for Safety for Household Electric Personal Grooming Appliances, UL 859, 10th Edition, approved August 30, 2002, and revised through June 3, 2010; or
Section 6 of UL Standard for Safety for Commercial Electric Personal Grooming Appliances, UL 1727, 4th Edition, approved March 25, 1999, and revised through June 25, 2010.

Testing/Certification and State Preemption Do Not Apply

CPSC explains that “15(j)” rules such as this one are not consumer product safety rules and do not create consumer product safety standards. Therefore, the CPSIA testing and certification requirements do not apply to this final rule. (However, CPSC has previously warned that the products on the Substantial Product Hazard List may need to be tested and certified for compliance with other CPSC requirements which are consumer product safety rules (such as flammability, lead content, etc.).)

Likewise, the state preemption provisions in section 26(a) of the CPSA do not apply. These are the provisions under which no State or political subdivision of a State may either establish or continue in effect a requirement dealing with the same risk of injury where a federal consumer product safety standard is in place, unless the State requirement is identical to the Federal standard.

Similar Rule Likely for Drawstrings in Children’s Upper Outerwear

On June 29, CPSC is set to vote on whether to add a second product, children’s upper outerwear with certain drawstring violations, to the Substantial Hazard List. As there appears to be broad Commission support for these “15(j)” rules, it is expected to pass. (See ITT’s Online Archives or 06/23/11 news, 11062321, for BP summary.)

(See ITT's Online Archives or 05/17/10 news, 10051763, for BP summary of CPSC’s proposed 15(j) rules for hairdryers and drawstrings.)

¹These criteria include that: (i) the characteristics are readily observable; (ii) the characteristics have been addressed by voluntary standards; (iii) such standards have been effective in reducing the risk of injury; and (iv) there is substantial compliance with such standards.

²A “substantial product hazard” under the rule means a product defect which (because of the pattern of defect, the number of defective products distributed in commerce, the severity of the risk, or otherwise) creates a substantial risk of injury to the public.

CPSC contact -- Sheela Kadambi (301) 504-7561, skadambi@cpsc.gov

(FR Pub 06/28/11)