On August 13, 2024, the Consumer Product Safety Commission (CPSC or Commission) published a Notice of Proposed Rulemaking (NPR) in the Federal Register proposing new rules for children’s toys containing button and coin cell batteries. This comes fewer than seven months after CPSC adopted the most recent revisions to the mandatory safety standard for children’s toys, ASTM F963, Standard Consumer Safety Specification for Toy Safety (Toy Safety Standard), which became effective in April 2024. The NPR was published less than a year after CPSC finalized regulations under 16 C.F.R. Part 1263 to implement Reese's Law, Public Law 117-171. Reese’s Law was passed in August 2022 to protect children 6 years old and younger against hazards associated with the ingestion of button or coin cell batteries in other consumer products. 

Children's toys (defined as “any object designed, manufactured, or marketed as a plaything for children under 14 years of age”) that are subject to requirements under 16 C.F.R. Part 1250 and ASTM F963 were excluded from the scope of Reese’s Law and its implementing regulations, which require that consumer products other than children’s toys that contain button or coin cell batteries must comply with ANSI/UL 4200A, Standard for Safety for Products Incorporating Button Batteries or Coin Cell Batteries. ASTM F963 has a special status under Section 2056b of the Consumer Product Safety Act (CPSA), as modified by the 2008 Consumer Product Safety Improvement Act (CPSIA), as it is expressly recognized as a consumer product safety rule. Routine updates to ASTM F963 address new or revised requirements for children’s toys. The latest updates, approved by CPSC in January 2024, changed definitions, safety requirements, and labeling requirements involving batteries in toys. Many of the revisions were specifically designed to address hazards related to battery overheating, leakage, explosion, fire, and choking or swallowing batteries. 

CPSC, however, now asserts that the revised Toy Safety Standard does not go far enough to address the specific hazards presented by button and coin cell batteries. The NPR argues for alignment of the Toy Safety Standard with the performance and labeling requirements contained in ANSI/UL 4200A. 

According to the proposed rule, the data relied upon by the Commission in issuing the NPR will be available upon publication in the Federal Register. This background information is likely to be crucial reading to interested stakeholders, and it is worth noting that the referenced incident data pre-dates the most recent revisions to the Toy Safety Standard. To obtain those materials, interested stakeholders must request copies by submitting a request to: https://forms.office.com/g/kSefsxqT3X. The NPR specifies that anyone making a request should receive access to the data via a website link but should email the CPSC staffer managing the proposal if they do not receive the link in two days.

The proposed rule differs in some important respects from the ASTM F963 provisions adopted by CPSC in January 2024. Notably, unlike the current Toy Safety Standard, CPSC’s proposed requirements would apply to all children’s toys rather than only those with a particular battery voltage or diameter. CPSC seeks to apply its proposed rule to products manufactured after the proposed effective date, which is 180 days after publication of any final rule in the Federal Register. This gives toy companies a short window to comply with new requirements after already making changes to meet the most recent version of the Toy Safety Standard. 

CPSC seeks comment on both the proposed substantive requirements and the effective date. Comments on the NPR must be submitted by October 15, 2024.