DATCP last updated its consumer product safety rules 8 years ago. Since then, the federal consumer product safety commission and DATCP have identified serious product safety hazards that are not addressed by current DATCP rules. This rule does all of the following:

Current DATCP rules ban a number of dangerous consumer products, including dangerous children's products (most of the products are also banned by federal rules). This rule reorganizes and clarifies a number of the current product bans, without substantially altering those bans. This rule also adds new bans related to the following consumer products:

Current DATCP rules ban “lawn darts" that are intended for use by children. The current DATCP rules are based on federal rules (16 CFR 1500.18(a)(4)). Recently, the federal Consumer Product Safety Commission adopted additional rules (16 CFR 1306) to ban “lawn darts" labeled for adult use, because those “lawn darts" are often used by children and pose a serious puncture wound hazard to children and adults.

Consistent with current federal rules, this rule bans all “lawn darts," regardless of whether they are intended for use by children or adults.

Current DATCP rules and federal rules (16 CFR 1500.18(a)(6)) ban hazardous infant walkers, but do not address stair-fall hazards. There is a voluntary industry standard (ASTM standard) for stair-fall protection, but some manufacturers and importers are not complying. The federal consumer product safety commission has documented that most “baby walker" incidents now involve children falling down stairs.

This rule bans infant walkers that are banned by 16 CFR 1500.18(a)(6) and that fail to meet the stair-fall protection standard in ASTM standard F 977-07 (“Standard Consumer Safety Specification for Infant Walkers"). This rule applies to infant walkers, also known as “baby walkers," “baby bouncers," and “walker jumpers," that are propelled by infants. It does not apply to baby strollers that are propelled by attending adults.

Small and powerful rare-earth magnets are now widely used in toys, building sets and jewelry. As the number of products with magnets has increased, so has the number of serious injuries to children. In several reported incidents, magnets have fallen out of toys and been swallowed by children. Swallowed magnets can attract separately-swallowed metal objects through intestinal walls, and get trapped in place. The trapped magnets can twist or pinch the intestines, and can cause holes, blockages, infection and death if not treated properly and promptly. These injuries are difficult to diagnose. In the United States over the past 3 years, there have been 86 reported injuries, one reported death, and about 8 million magnetic toys recalled.

This rule bans products which contain magnets that may be swallowed by a child. The ban does not apply to toys that comply with 15 USC 2056b which adopts ASTM standard 963-07 (“standard consumer safety specification for toy safety"). Nor does it apply to toys in which the magnets are used only as internal parts of motors, relays, speakers or other electrical components, provided that the magnetic action is not part of the play pattern of the toy.

Over the past 20 years, more than 1,100 children have died from crib-related injuries in the United States, and more than 11,600 children are hospitalized with crib-related injuries each year. Current federal rules (16 CFR 1500.18(13) and (14)) ban cribs and related enclosures that fail to comply with applicable federal standards under 16 CFR1508 and 1509 (the federal rules apply to cribs manufactured after 1974 and 1983, respectively).

This rule bans baby cribs and related enclosures that are currently banned by federal law under 16 CFR 1500.18(13) or (14).

Yo-yo elastic tether toys, often called “yo-yo waterballs," have a weighted object attached to a stretchable elastic cord that can extend to over 2 feet. (These “yo-yo waterballs" are different from traditional yo-yos, which do not have stretchable elastic cords). Instructions tell children to “throw the ball into the air and try and catch it," encouraging a lasso-like movement. But the weighted object is heavy enough to generate significant momentum when swung like a lasso, which makes the toy difficult to control. In Wisconsin, there have been 7 reported incidents in which children became unconscious after the cord wrapped tightly around the child's neck and cut off circulation. In other cases, children have suffered broken blood vessels affecting eyes, face and head areas. Illinois, New Jersey, the United Kingdom and Australia have already banned this toy from sale.

This rule bans yo-yo elastic tether toys that do not comply with the standards for yo-yo elastic tether toys established by 15 USC 2056b which adopts ASTM standard 963-07 (“standard consumer safety specification for toy safety").

Recently enacted federal law (15 USC 1278a) treats as a hazardous substance any children's products that contain more lead than 600 parts per million beginning 180 days after August 14, 2008, 300 parts per million beginning on the date that is one year after August 14, 2008, and 100 parts per million beginning on the date that is 3 years after August 14, 2008.

This rule bans children's products, containing lead, which are treated as banned hazardous substances under 15 USC 1278a. This ban does not apply to any of the following:

The following federal regulations apply to consumer products that are newly banned under this rule (federal regulations also apply to some products banned by current DATCP rules):

Wisconsin has a fairly well-developed consumer product safety program, with broad authorizing legislation modeled after federal law. Wisconsin statutes authorize DATCP, as Wisconsin's equivalent of the federal consumer product safety commission, to issue orders and adopt rules regulating dangerous consumer products.

Surrounding states have less comprehensive consumer product safety programs, and fewer administrative options for regulating dangerous consumer products. Surrounding states tend to regulate consumer product safety on a more ad hoc basis, with special legislation aimed at specific products. However, several surrounding states have banned many of the same products that are newly banned under this rule.

None of the surrounding states has banned lawn darts under state law.

Illinois and Michigan ban infant walkers that are the subject of federal product recalls. The federal consumer protection safety commission has published an industry guidance stating that it will seek to recall infant walkers that fail to comply with relevant federal standards or ASTM standards.

Illinois and Michigan ban toys with magnets if the toys are the subject of a federal recall. The federal consumer protection safety commission has recalled 17 toys since 2007 because the toys contained magnets that could detach and be swallowed or aspirated. Those toys are accordingly banned in Illinois and Michigan.

Illinois, Minnesota and Michigan have adopted “safe crib" laws that ban unsafe cribs, including cribs banned by this rule.

Illinois bans elastic tether toys, also known as “yo-yo waterballs" (New Jersey has a similar ban).

Illinois and Michigan ban children's products containing more than 600 ppm lead by weight. None of the other surrounding states regulates the lead content of children's products. However, some other states have enacted more stringent bans:

DATCP relies on incident data from consumer complaints and from the federal consumer product safety commission. DATCP uses test methods prescribed by federal rules, or by relevant industry standards (ASTM standards, published by ASTM International).

This rule may have an adverse impact on some businesses that manufacture, sell or distribute articles banned by this rule. Some of those businesses may be “small businesses."

This rule creates new regulations which prohibit the sale of consumer products that do not meet federal regulations or the current industry consensus standards for baby walkers, toys containing magnets, yo-yo elastic tether toys, cribs, and toys containing lead. In addition, the rule bans the sale of lawn darts.

This rule will require manufactures to change designs and formulas for their products if they do not currently comply with the federal regulations and current industry consensus standards if they plan to distribute product to Wisconsin. As the federal regulations have been in place for some time, most manufacturers already have systems in place to verify that current and new product complies with the federal standards. In addition, many manufactures actively participate in the process for developing the industry consensus standards and are already complying with those standards. Finally, as many states already have laws in place requiring cribs to meet current industry consensus standards and governing lead levels in toys, manufacturers are currently developing products that are in compliances with those states. Those products would also be in compliance with this rule. \This rule will benefit the manufacturing industry by providing clear guidance in designing and selling a compliant and safe product. Providing federal and industry consensus standards in the rule will provide industry with a clear understanding of how it may comply with Wisconsin safety standards. It will also provide for harmonious standards among various governing bodies making it easier for manufactures to comply.

This rule creates new regulations which prohibit the sale of consumer products that do not meet federal regulations or the current industry consensus standards for baby walkers, toys containing magnets, yo-yo elastic tether toys, cribs, and toys containing lead. In addition, the rule bans the sale of lawn darts.

Under current rules, retailers are already prohibited from selling a number of unsafe and hazardous products in Wisconsin. This rule will add to that list, however, many of the products being added are already regulated by federal rules. Those products that are not currently regulated by federal rules, and are either banned in other states or have industry consensus standards to guide retailers on what is considered a safe product. In addition, many retailers actively participate in the process for developing the industry consensus standards and are already purchasing products that comply with those standards.

For many years national retailers have needed to have systems in place to assure the products they sell in Wisconsin are in compliance with Wisconsin laws. By including federal and industry consensus standard in the rule retailers will be able to request certificates of compliance with Wisconsin laws from distributors and manufactures when buying product for sale. In addition, they will be able to confer with testing laboratories to assure that product complies with Wisconsin law when designing and ordering product for their own store labels.

Overall, this rule prohibits the sale of unsafe toys and other articles that present a hazard and unreasonable risk of personal injury. In many cases, these children's products, as well as several of the children's products currently banned by the rule, have become regulated by the federal rules. In addition, industry consensus standards have been developed which further describe the types of durable children's products, toys and toy components that create unacceptable hazards. This rule will provide clear guidance for individual businesses, including small businesses, in designing and selling a compliant and safe product that will comply with the rule. Overall, this rule has few adverse impacts on small business.

This rule may have some adverse effects on some small businesses (especially resale and thrift stores). If consumers have any consumer products in their homes which do not comply with the rule and donate them to a resale or thrift store, the store will have an obligation to determine if the product is in compliance with the rule. If the product is not in compliance with the rule they will not be permitted to sell the product in Wisconsin. This could create an increase in the volume of refuse a store has to process.

However, over the years the department has worked with resale and thrift stores on various education campaigns to decrease the amount of unsafe product that is turned around. The department has created a poster that highlights 12 unsafe products, including products covered by this rule, to educate both store employees and consumers who donate goods. These campaigns have helped the stores make safe product available to consumers. These posters will be available for resale and thrift store owners to post.

This rule is needed to protect consumers from unsafe toys and other articles that present a hazard and unreasonable risk of personal injury. A majority of the products contained in the rule are intended for use by children. Children are at a disadvantage as they are unable to evaluate risk.

Although this rule may have some adverse effects on some small businesses, those effects are generally minimal and are outweighed by the need to prevent the potential for injury and death. DATCP has not exempted small businesses, because the risk of injury and death is unrelated to business size.

This rule will not have significant fiscal impact on DATCP or local units of government.

NOTICE IS HEREBY GIVEN that pursuant to ss. 66.0903 (5) and 103.49 (3g), Stats., the Department of Workforce Development proposes to hold a public hearing on emergency and proposed permanent rules to consider the amendment of s. DWD 290.155 (1), relating to the adjustment of thresholds for application of prevailing wage rates.

Interested persons are invited to appear at the hearing and will be afforded the opportunity to make an oral presentation of their positions. Persons making oral presentations are requested to submit their facts, views, and suggested rewording in writing.

Visitors to the GEF 1 building are requested to enter through the left East Washington Avenue door and register with the customer service desk. The entrance is accessible via a ramp from the corner of Webster Street and East Washington Avenue. If you have special needs or circumstances regarding communication or accessibility at the hearing, please call (608) 267-9403 at least 10 days prior to the hearing date. Accommodations such as ASL interpreters, English translators, or materials in audiotape format will be made available on request to the fullest extent possible.

The proposed rules are available at the web site http://adminrules.wisconsin.gov by typing “prevailing wage" in the search engine. This site allows you to view documents associated with this rule's promulgation, register to receive email notification whenever the Department posts new information about this rulemaking order, and submit comments and view comments by others during the public comment period. You may receive a paper copy of the rule by contacting:

Written comments on the proposed rules received at the above address, email, or through the http://adminrules. wisconsin.gov web site no later than February 12, 2009, will be given the same consideration as testimony presented at the hearing.