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FAQ: Toxic-Free Kids Act

Frequently Asked Questions

Yes, if a product is made for, marketed for use by or marketed to children under 12 years of age, and contains a HPCCCH at or above de minimis levels in any part or component of the children’s product, it must be reported using the HPCCCH Biennial Notice Reporting System.

De minimis levels are as follows:

  • Intentionally-added HPCCCH - De minimis is the practical quantification limit (PQL) for a specific HPCCCH as indicated in Oregon Administrative Rules OAR 333-016-2035 Exhibit A. The method used to detect the PQL for each HPCCCH is listed in the far right column.
  • The HPCCCH as a “contaminant” - See the Oregon Revised Statute ORS 431A.253: Definitions. The de minimis level is at or above 100 ppm.

“Contaminant” means trace amounts of chemicals that are incidental to manufacturing and that serve no intended function in the product component, including but not limited to:

(a) Unintended by-products of chemical reactions during the manufacture of the product component;
(b) Trace impurities in feedstock;
(c) Incompletely reacted chemical mixtures; and
(d) Degradation products.

Oregon’s Toxic-Free Kids Act differs from Washington’s Children’s Safe Products Act in how we have chosen to deal with components that are not accessible to a child through normal and reasonably foreseeable use and abuse. While Washington’s law does not require reporting of these components, Oregon’s law does require that they be reported.

Oregon’s law does not exempt a component based on its location in the product. If a HPCCCH is in any component/location of the final product, and at/above the applicable de minimis, it should be reported using the HPCCCH Biennial Notice Reporting System before January 1, 2018.

The Oregon Legislature, when developing the Toxic-Free Kids Act, was looking at all the potential ways a child could be exposed to a HPCCCH from a children’s product. They felt that children can be both destructive and curious when it comes to children’s products, and that many component parts that seem to be hard to access may in actuality become accessible, especially to older children who can either break them open or take them apart and therefore potentially be exposed to the chemicals in these components.

The definition of “children’s product” in the Oregon Revised Statute ORS 431A.253 reads, in part:

(3)(a) “Children’s product” means:

(A) Any of the following products that are made for, marketed for use by or marketed to children under 12 years of age:
(i) A product designed or intended by the manufacturer to facilitate sucking, teething, sleep, relaxation, feeding or drinking.
(ii) children’s clothing and footwear.
(iii)car seats.
(iv)children’s cosmetics.
(v)children’s jewelry.
(vi)toys.

(B) Any component part of a product specified in subparagraph (A) of this paragraph.

Products intended to facilitate sleep or relaxation are part of the definition of “children’s product.” This means children’s beds, head boards for children’s beds and cribs, children’s stuffed chairs or other furniture for relaxing as well as other sleep-related products (sheets, pillows, blankets, etc.), should be reported if they contain High Priority Chemical of Concern for Children’s Health (HPCCCH) above de minimis levels.

Under the statute and Oregon Administrative Rules OAR 333-016-2010, children’s dressers, desks, nightstands, hard chairs, tables and any other furniture that does not facilitate sleep or relaxation, are not included in the definition of “children’s products.”

A TIN is requested mainly so that TFK staff may connect fee payments made (through the online payment system or a paper check) with the information submitted in the Notice Template in compliance with the Act.

Reporters without a TIN, such as manufacturers based outside the United States, should write 123456789 in spaces where a TIN is requested. TFK staff will use other means to make this important connection.

OHA understands that it will be difficult for some businesses to know the exact number of products sold or offered for sale in Oregon by January 1, 2018, due to the delay in data for the end of 2017.

Manufacturers should work with distributors of your products (or retailers if you sell directly to them). Ask them how many bricks they have sold or offered for sale in their Oregon locations in 2017. (Remember, you have a choice which one to report.)

Because they need this information for revenue, tax and other financial reasons, they will be able to provide a response to you for one of the two choices (Column H or I). Other manufacturers have done this with their retailers and distributors. Remember, the fee associated with the notice requirement is per chemical, and not based on the number of products sold or offered for sale.

OHA will accept the manufacturer’s most accurate estimate for 2017, knowing that the inventory for 2018 and beyond will be more accurate.

The term "brick" means neither style nor SKU. A "brick" is a category of similar products and is the building block of the GS1 Global Product Classification standard. This standard helps global trading partners to group products in the same way, everywhere in the world, making common business language clear and instantly understandable.

A Brick Code is a code used for each unique category of product. For example: for fresh milk the Brick Code is “10000025” and the Brick Description is “milk and milk substitutes (perishable).”

Hereafter, “brick” refers to a specific unique category of children’s products at the GS1 Brick Level of the Global Product Classification standard. ("Brick" is the unit of measure was chosen by both Oregon and Washington lawmakers for their states’ programs.)

The "number" of bricks refers to the quantity of GS1 'bricks' sold or offered for sale in Oregon in 2017. Reporters have a choice of providing numbers for either Column H (number sold) or Column I (number OFFERED for sale). [Reporting should be on the number of 'units' of the product brick as it is typically made available for sale to consumers.]

For example, if your company reported the brick, “Viewing Toys (Powered)-10005171,” we would like to know if you sold (or offered for sale) 150 of these toys, or 15,000 or 150,000 in Oregon in 2017.

If you are adding or delete products from an existing notification you can email the corrected Notice Template to toxicfreekids.program@state.or.us.

You do not have to go through the entire notification process a second time.

Requirements for a Manufacturing Control Program (MCP) can be found in OAR 333-016-2070(4) through (7). Guidance for writing an MCP and the process for submitting it can be found under Requirements for Manufacturers, under “Exemption Requests.”

Correct. Oregon’s Toxic-Free Kids Act under ORS 431A.258(5)(a) states: “The authority shall grant an exemption to a manufacturer of children’s product that applies for an exemption from the notice requirements of this section if the application demonstrates that:

(A)The high priority chemical of concern for children’s health used in children’s products is present in the children’s product otherwise subject to the notice requirements of this section only as a contaminant;

(B) The manufacturer conducts a manufacturing control program for the contaminant; and

(C) The manufacturing control program meets minimum standards for a manufacturing control program as set forth by the authority by rule. This means that a manufacturer (or a trade association representing the manufacturer) may request an exemption from the Biennial Notice requirements only for HPCCCPH found in final products as contaminants at or above the de minimus of 100 ppm.

You can find information on seeking an exemption request from the Biennial Notice requirement in the OAR 333-016-2070. Guidance for writing an MCP and the process for submitting it can be found under Requirements for Manufacturers (see "Exemption Requests”).

No, they are not. Intentionally added HPCCCH found in the final product above the practical quantification limit (PQL) for a specific HPCCCH as indicated in Oregon Administrative Rules OAR 333-016-2035 Exhibit A must be reported using the HPCCCH Biennial Notice Reporting System.

Yes, they are. ORS 431A.253 states that "children’s product" does not include:

(Q) Food and beverages and food and beverage packaging regulated by the United States Food and Drug Administration or the United States Department of Agriculture.

Therefore, these items are exempt from reporting requirements under the law.

By checking the "Send me a copy of my responses" box at the bottom of the Reporter Entry Form, you will receive an emailed confirmation of your responses. TFK staff will contact you if your paper check is not received or if there are other questions about the submission.

If you have questions about receipt of your company’s submission, please contact toxicfreekids.program@state.or.us.

Under Oregon’s Toxic-Free Kids Act (ORS 431A.250), HPCCCH and the products containing them are to be reported by January 1 of even-numbered years (1/1/2018, 1/1/2020, 1/1/2022 and so on).

The first Biennial Notification (as defined by the Act) for children’s products with HPCCCH above de minimis levels is January 1, 2018. As part of that notification, a fee of $250 per HPCCCH is required. Fees per HPCCCH will be required again in 2020 and 2022.

However, per 333-016-2060 Notification Requirements, if a manufacturer has included a children’s product in a notice required under these rules, and determines that there is no change to the information submitted to the Authority in the previous notice, the manufacturer may, in lieu of including the children’s product again in a subsequent notice, submit a written statement, or if available, an electronic notification indicating that the previous reported data is still valid for that children’s product.

Further information on how this is to be done will be available by October 15, 2019 under Requirements for Manufacturers.

Correct. Currently, Oregon does not require manufacturers to use codes or descriptions below the Brick Code level. This does not mean that the state cannot choose to add a lower category in the future if necessary. Vermont currently requires notification at the SKU Code level.

Yes, manufacturers will be required to remove HPCCCH from subsets of products in Phase 3 of the TFK Act’s implementation. (See Rules and Rulemaking for more information on the Act’s implementation.)

Per ORS 431A.260, starting January 1, 2022 manufacturers will be required to remove/substitute/gain a waiver for HPCCCH in specific categories of children’s products. These categories are:

  • Those products that are mouthable (as defined in ORS 431A.253);
  • a children’s cosmetic; or
  • for children under 3 years of age.

Rule-making for this and related provisions in the Act will formally begin in early 2019.

Per ORS 431A.258, manufacturers must provide Biennial Notice to OHA of children's products sold or offered for sale in Oregon that are covered by the Oregon Toxic-Free Kids Act and contain High Priority Chemicals of Concern for Children's Health (HPCCCH) at or above de minimis levels in the final product.

This is not voluntary.

ORS 431A.275 provides for civil penalties for violations of ORS 431A.258 as well as other provisions of the Act. Information on "who" must report and "what" must be reported, is found at the HPCCCH Biennial Notice Reporting System page.

As addressed above, per ORS 431A.260, starting January 1, 2022 manufacturers will be required to remove/substitute/gain a waiver for HPCCCH in specific categories of children’s products. These categories are:

  • Those products that are mouthable (as defined in ORS 431A.253);
  • A children’s cosmetic; or
  • Products made for children under 3 years of age.

Rule-making for this and related provisions in the Act will formally begin in early 2019.

Oregon’s Toxic-Free Kids Act differs from Washington’s Children’s Safe Products Act in how we have chosen to deal with components that are not accessible to a child through normal and reasonably foreseeable use and abuse. While Washington’s law does not require reporting of these components, Oregon’s law does require that they be reported. Oregon’s law does not exempt a component based on its location in the product. If a HPCCCH is in any component or location of the final product, above the applicable de minimis, it should be reported using the HPCCCH Biennial Notice Reporting System before January 1, 2018.

Oregon charges a fee per chemical for biennial notice reporting. Oregon also has enforcement provisions and civil penalties established in rule that can be imposed in the event that a manufacturer does not comply with the requirements in ORS 431A or OAR Chapter 333, Division 016. You can find the language for fees in OAR 333-016-2080 and language pertaining to enforcement and penalties in OAR 333-016-2090.

Oregon’s Act also provides the following exemptions:

  • A manufacturer of children’s products with annual worldwide gross sales of less than $5 million, as reported on the most recent tax return filed by the manufacturer before the notification required under OAR 333-016-2060, is exempt from all the requirements of these rules.
  • Any HPCCCH found in a final children’s product that is present only as a contaminant at or above de minimis (100 ppm), for which a manufacturer or trade association has submitted a Manufacturing Control Program (MCP) that meets the requirements found in OAR 333-016-2070(4), and for which approval has been received by the OHA prior to the January 1, 2018 reporting deadline.

Oregon does not have plans to implement a PIN (Personal Identification Number) program. Under Oregon’s Toxic-Free Kids Act, biennial notifications are to be made by manufacturers or the trade associations that represent them. Manufacturers’ are defined by ORS 431A.253 as "...any person that produces a children’s product or an importer or domestic distributor of a children’s product. For [Reporting purposes], "importer" means the owner of the children’s product."

Oregon’s Toxic-Free Kids Act requires manufacturers of children's products sold or offered for sale in Oregon to report products containing one or more High Priority Chemicals of Concern for Children's Health (HPCCCH) if found at or above specific (de minimis) levels in those products. Specific de minimis levels for each HPCCCH are found under Requirements for Manufacturers. The de minimis for HPCCCH found in a final product only as a contaminant is 100 ppm.

One strategy for ensuring products do not contain HPCCCH, and for complying with ORS 431A.258 is for manufacturers to test the final children’s product or require suppliers to test their products (and the raw materials that go into them) to determine if HPCCCH are present.

This should help manufacturers determine the levels (PPM-parts per million) of HPCCCH found in components in final products made available for sale in Oregon to assess whether they are at or above de minimis levels. Products containing HPCCCH above de minimis levels must be reported.

De minimis levels are as follows:

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