Competition and Consumer Act 2010 - Consumer Protection Notice No. 11 of 2011 - Permanent ban on children's products containing more than 1% diethylhexyl phthalate (DEHP)

Administered by Department of the Treasury

Legislation au F2011L00192 In force Legislative Instrument

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explanatory STATEMENT

Issued by the Authority of the Parliamentary Secretary to the Treasurer

Competition and Consumer Act 2010

Permanent ban on children’s products containing more than 1 per cent
diethylhexyl phthalate (DEHP)

Background

Prior to 1 January 2011, a notice declaring goods to be unsafe was made pursuant to subsection 65C(5) of the Trade Practices Act 1974 (TPA) in relation to children’s products containing more than 1 per cent DEHP.

The Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 together with the Trade Practices Amendment (Australian Consumer Law) Act (No.1) 2010, amended the TPA to implement a new national consumer law regime known as the Australian Consumer Law (ACL).

The TPA was renamed the Competition and Consumer Act 2010 (CCA) on 1 January 2011. The ACL forms Schedule 2 to the CCA.

Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No.2) 2010 sets out the transitional matters relating to the commencement of the ACL. Item 2 of Schedule 7 provides that a notice under subsection 65C(5) of the TPA that was in force immediately before the commencement of the ACL takes effect ‘as if’ it were an interim ban imposed under section 109 of Schedule 2 to the CCA, starting on the day of commencement (1 January 2011). Therefore, an interim ban on children’s products containing more than 1 per cent DEHP came into force on 1 January 2011. An interim ban under the ACL exists for a period of 60 days and is able to be extended on two separate occasions by a period of 30 days.

Subsection 114(1) of Schedule 2 to the CCA provides that the Commonwealth Minister may impose a permanent ban on consumer goods of a particular kind if an interim ban exists for those goods, or it appears to the Commonwealth Minister that consumer goods of that kind will or may cause injury to any person or a reasonably foreseeable use (including misuse) of consumer goods will or may cause injury to any person. A permanent ban on children’s products containing more than 1 per cent DEHP is imposed pursuant to subsection 114(1)(a) of Schedule 2 to the CCA.

Permanent ban on children’s products containing more than 1 per cent DEHP

Diethylhexyl phthalate is a commonly used chemical plasticiser that is used to make plastics such as PVC soft and flexible. Research by the National Industrial Chemicals Notification and Assessment Scheme (NICNAS) into children’s products containing more than 1 per cent DEHP shows:

  • a risk of reproductive toxicity for children up to and including 36 months of age who may extensively chew and suck (mouth) objects on a recurrent basis for substantial periods of time—in excess of 40 minutes per day
  • no risk to older children or to adults because they have less substantial mouth contact with plastic materials that contain DEHP
  • no safety concerns for any age group, including infants, if their skin comes into contact with products containing DEHP.

The purpose of the permanent ban on these goods is to ensure ongoing consumer safety by prohibiting the supply of children’s products containing more than 1 per cent DEHP. The associated hazard is the risk of reproductive toxicity (for example, infertility, altered sexual behaviour and possible birth defects in offspring) in children up to and including 36 months of age who may extensively chew and suck (mouth) such items.

Under the CCA, a permanent ban on children’s products containing more than 1 per cent DEHP is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). For the purposes of section 17 of the LIA, consultation has been undertaken both at the time the notice was made under subsection 65C(5) of the TPA and also in January 2011 when the proposed ban notice was published on the internet in accordance with subsection 132(3) of Part XI to the CCA. There are no known suppliers of these banned goods.

This instrument is subject to sunsetting under Part 6 of the LIA. Unless action is taken to defer or exempt it from sunsetting, it is expected to sunset on 1 April 2021. This estimate assumes it is registered on or before 31 March 2011.

Overview

The Competition and Consumer Act 2010 (CCA) was enacted to establish a unified national consumer law regime known as the Australian Consumer Law (ACL). The CCA was introduced to address the need for a consistent and comprehensive regulatory framework to protect consumers. The Parliament of Australia enacted this Act to provide a robust legal basis for consumer protection and competition policy across Australia. The policy objective of the CCA is to safeguard consumers by ensuring fair trading practices and providing mechanisms to address unsafe consumer goods. Specifically, the Act allows the Commonwealth Minister to impose a permanent ban on consumer goods that pose a significant risk to health or safety, such as children’s products containing more than 1% diethylhexyl phthalate (DEHP). This permanent ban aims to prevent the supply of such products and thereby protect children from potential reproductive toxicity.

Scope and Application

The Competition and Consumer Act 2010 applies to all persons and entities involved in the supply of consumer goods within Australia, including those involved in manufacturing, distribution, and sale of such goods. The Act specifically targets children's products containing more than 1% of diethylhexyl phthalate (DEHP), which is a chemical plasticiser used to make plastics flexible. The Act imposes a permanent ban on these products to mitigate the risk of reproductive toxicity in children aged up to 36 months. The ban applies nationally across Australia and is implemented through the Australian Consumer Law (ACL) under the Act. This legislative measure extends to all states and territories within the Commonwealth of Australia, ensuring uniform safety standards for consumer products. The Act does not specify exclusions or exemptions for this particular ban, and its enforcement is supported by subordinate instruments that may provide further details or guidelines on implementation. The ban is expected to sunset on 1 April 2021, unless otherwise deferred or exempted under the Legislative Instruments Act 2003.

Key Provisions

The Competition and Consumer Act 2010 (CCA) contains a permanent ban on children’s products that contain more than 1 per cent diethylhexyl phthalate (DEHP) (Schedule 2, section 114(1)(a)). This ban was initiated via an interim ban under the Trade Practices Act 1974 (TPA) and was subsequently made permanent under the CCA. The primary objective of this ban is to protect children, particularly those up to 36 months of age, from potential reproductive toxicity associated with exposure to DEHP in certain products. DEHP is a chemical plasticiser used to make plastics like PVC soft and flexible, but research has shown it poses a risk when children come into frequent and extensive contact with products containing more than 1 per cent of the substance. The Act imposes specific obligations on parties and entities that deal with children’s products. Manufacturers, importers, and suppliers are required to ensure that any children’s products they supply do not contain more than 1 per cent DEHP. This includes compliance with labelling requirements, product safety assessments, and adherence to the ban as outlined in the CCA. Failure to comply with these obligations can result in legal consequences. The Act also mandates that any products found to be in violation of the DEHP content limits must be recalled and that consumers be appropriately informed of the risks. In terms of penalties and consequences for breaches, the CCA provides for both civil and criminal sanctions. Civil penalties can include fines up to $1.1 million for corporations and $220,000 for individuals, as specified in section 131 of the CCA. Criminal penalties can result in imprisonment for up to five years for individuals and fines for corporations that can be significantly higher, reflecting the severity of the breach and its potential impact on consumer safety. These penalties underscore the importance of compliance with the provisions concerning the DEHP ban to protect public health, particularly that of children.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.