Proposed Battery Regulations Could Raise Prices, Shrink Imprints

The Button Cell Battery Safety Act of 2011 (S. 1165) was introduced by Senator John D. "Jay" Rockefeller (D-WV), chairman of the U.S. Senate Committee on Commerce, Science and Transportation, on June 9. Intended "to protect children and other consumers against hazards associated with the accidental ingestion of button cell batteries," the Act would empower the Consumer Products Safety Commission (CPSC) to create a new mandatory standard for button cell battery compartments and require manufacturers to include warning labels on product packaging and possibly products themselves.

According to a June 2010 study published in the journal Pediatrics, U.S. poison centers reported more than 3,400 cases of battery ingestion between 2007 and 2010, resulting in hundreds of injuries and six deaths. Many of these instances, Sen. Rockefeller claimed, could have been prevented if the products had secure closures such as those required on children's toys, which are closed by a screw. Several household items, such as remote controls, utilize button cell batteries that can be accessed through a simple sliding panel.

The bill, currently being reviewed by the Committee, could impact a wide variety of retail and promotional products if passed. "The Act indicates that it applies to any battery-operated consumer product. It does not distinguish between items designed or intended for children, and items that are obviously for adults like automotive key remote control," said Larry Whitney, manager, trade compliance for New Kensington, Pennsylvania-based Leed's. "If it has a button cell battery, and it is a consumer product, it would be affected. Promotional products are considered consumer products."

While the Act defines button cell batteries as any battery less than 32 mm in diameter, a size which includes most lithium batteries used in common electronics, it also empowers the CPSC to regulate "any other battery, regardless of the technology used to produce an electrical charge."

For distributors and suppliers, the Act raises two concerns: increased costs as a result of new battery housing, and smaller embellishment areas due to required labeling. "Items may need to be redesigned to make the battery compartment harder to open," explained Whitney. "Redesigning an item may require new tooling. Factories will likely pass those costs up the supply chain to suppliers who would factor that into the product reviews price increases to distributors."

"For suppliers, if the bill does becomes law, it may be simpler to just drop older, non-complying items, and replace them with new designs that do comply. The trick will be to make sure that any older inventory is gone before the new law takes effect," he added.

As for the labeling requirements, the Act does not specify whether an item and its packaging must include a warning label, or if the label on one or the other will be sufficient. Larger items such as radios would have space for the label, but smaller products like MP3 players or laser pointers could have their imprint areas affected if they also need to include a warning.

Whitney pointed out that while the bill, sponsored by Democratic Senators Rockefeller and Mark Pryor (AR), has been referred to the Committee, it is still far from guaranteed to become law. "The lack of any Republicans co-sponsoring the bill, and the fact that it still would need to pass in the Republican-controlled House, lead me to believe that it might face a difficult time in getting passed at all, unless there was large public support for it," he said.

According to Kerrie Campbell, partner, and Michael Bhargava, associate, for law firm Manatt, Phelps & Phillips LLP, the time for interested parties to raise concern is now. "As we have learned from the enactment of the Consumer Product Safety Improvement Act of 2008 (CPSIA), vague laws can lead to unnecessarily harsh unintended consequences that may not serve the objective of effective product safety," they wrote in a statement. "While S. 1165 is in its infancy, this is the optimal time to weigh in on the legislation to prevent vagueness and overbreadth that could impose an unnecessary or disproportionate burden on businesses, without effectively advancing safety concerns."

For more information on the act, or to contact the U.S. Senate Committee on Commerce, Science & Transportation, please visit the Committee's website or contact your local representative.