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Lead and Preemption Take Center Stage at CPSC

Date: Dec 29, 2008

The Consumer Product Safety Commission (CPSC) has had a busy December, issuing accreditation standards for testing for lead in metal children's jewelry, and a request for comments on component testing as part of its ongoing efforts to implement provisions of the Consumer Product Safety Improvements Act of 2008 (CPSIA). Commission staff is also recommending for Commission adoption an interpretive rule relevant to inaccessible components, and three Notices of Proposed Rulemaking on exemptions for electronics, for certain materials that contain low or no lead, and a proposed process for exemptions for materials that do not pose a health risk. In the meantime, four states have submitted requests to recognize their state laws.

Lab Accreditation Standards for Lead Content in Metal: The CPSC announced that on December 22, 2008, the requirements for accreditation of third party conformity assessment bodies to test the 600 parts per million (ppm) and 300 ppm lead limits in metal and metal alloy parts of children's metal jewelry went into effect. Pursuant to the provisions of Section 102, metal components of children's jewelry products must be tested by an accredited laboratory 90 days thereafter. Thus, metal components of children's jewelry manufactured March 23, 2009 or later must be tested by an accredited laboratory. For a full list of the lab accreditation requirements, including referenced methods, see: http://edocket.access.gpo.gov/2008/pdf/E8-30255.pdf.

Staff Recommendations on Lead Exceptions: On Christmas Eve, the CPSC staff posted four recommendations for action that will be the subject of an expected vote by the Commission on January 5. They include:

  • A proposed interpretative rule to provide guidance on how to identify components that are inaccessible for purposes of the lead ban. In essence, any touchable component would be considered "accessible." Rather than proposing new use and abuse tests for products for children 8 - 12, the Commission staff suggests that use and abuse testing in accordance with current regulations, which apply to products for children 8 and under, will "appropriately reveal inherent characteristics or possible defects in products that could result in accessibility of components." Disassembly or destruction by means or knowledge not generally available to younger children should not be considered in evaluating the accessibility of components in products intended for this age range.
  • A notice of proposed rulemaking to exempt from the lead ban electronic products for which it is technically infeasible to comply with the CPSIA lead limits. The CPSC staff is largely relying on exemptions per the RoHS Directive, but is not proposing to adopt the exemption for decorative crystal.
  • Proposed findings that certain naturally-occurring materials, including many components of jewelry (precious metals, gemstones, surgical steel, wood, coral, amber, etc.), as well as natural fibers (cotton, silk, wool, hemp, flax and linen), do not exceed the lead limits specified in Section 101(a) of the CPSIA. To qualify the materials may not have undergone any processing or treatment that could result in lead content that exceeds the relevant limits. See: http://www.cpsc.gov/library/foia/foia09/brief/leadlimits.pdf.
  • Procedures for submitting requests for exemptions under Section 101(b)(1); this is the procedure for other low lead materials as well as for materials that might exceed lead limits but do not pose a health risk. See: http://www.cpsc.gov/library/foia/foia09/brief/leadprocedures.pdf.

These CPSC proposals come shortly after the National Association of Manufacturers (NAM) filed a petition seeking a comprehensive rule on lead, including lead testing, exceptions and exemptions. Clarity on exceptions and exemptions is especially critical since the CPSC General Counsel determined that the lead substrate restrictions apply to products sold after February 10, 2009.

Four States Seek Recognition from Preemption: Four states – Arizona, California, Illinois and New York – seek CPSC recognition of existing state toy and children's product safety standards. Pursuant to the application process set out in § 106(h)(2) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), the Attorney General of each state is requesting a ruling that the following laws and regulations are not preempted by CPSIA:

Arizona

California

  • Cal. Health & Safety Code §§ 25249.5-25249.13; Cal. Code Regs. tit. 27, chap. 1 §§ 25102-27001, the Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as Proposition 65) which prohibits businesses from discharging toxic chemicals into drinking water sources and requires businesses to issue warnings to individuals who may have been exposed to such substances.
  • Cal. Health & Safety Code §§ 25214.1-25214.4.2, which sets limits on total lead in children's and adult jewelry, adopts specific exemptions for many materials, including precious metals, surgical steel, gemstones, crystal and more, and establishes testing requirements.
  • Cal. Health & Safety Code §§ 108100-108515, which prohibit the sale, production, storage or import of any misbranded or banned hazardous substance in the state.
  • Cal. Health & Safety Code §§ 108500-108515, which require warning labels on all art and craft materials that contain toxic, carcinogenic or radioactive substances and also requires instructions for the safe handling of such materials.
  • Cal. Health & Safety Code §§ 32060-32066, which prohibit the sale of art and craft materials that contain toxic, carcinogenic or radioactive substances to schools or school districts.
  • Cal. Health & Safety Code §§ 108550-108585, which prohibit the sale of any toy that contains lead in excess of federal regulations; contains soluble compounds of antimony, arsenic, cadmium, mercury, selenium or barium; consists of diseased or decomposed substances; has been produced, stored or shipped under unsanitary conditions; is stuffed padded or lined with toxic materials; or is not securely wrapped or packaged.
  • Cal. Health & Safety Code §§ 108850-108915, which prohibit the manufacture, import or sale of tableware that releases a level of lead or cadmium in excess of 0.1 microgram per milliliter or of any subsequent, more stringent standard adopted by the FDA.
  • Cal. Health & Safety Code §§ 108935-108939, which prohibit the manufacture, sale or distribution of any toy or child care article containing di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP) or benzyl butyl phthalate (BBP) in concentrations exceeding 0.1 percent and prohibit the manufacture, sale or distribution of any toy or child care product intended for use by a child under three years of age if that product can be placed in the child's mouth and contains diisononyl phthalate (DINP), diisodecyl phthalate (DIDP) or di-n-octyl phthalate (DnOP) in concentrations exceeding 0.1 percent.
  • Cal. Bus. & Prof. Code § 17531.1, which requires labeling on the package for children's toys indicating if the item inside is sold unassembled.
  • Cal. Health & Safety Code §§ 25214.11-25214.21, which prohibit packaging or packaging components that contain regulated heavy metals, particularly lead, mercury, cadmium and hexavalent chromium.
  • Cal. Penal Code §§ 12550-12556, which prohibit the sale of BB guns to minors and prohibit the sale or manufacture of any imitation firearms that are so substantially similar to a real firearm that it could be mistaken for an actual weapon.
  • Cal. Pub. Res. Code §§ 15025 and 15027, which prohibit the manufacture, sale or distribution of mercury-added novelties.
  • To read the filings and full regulations, see: http://www.cpsc.gov/about/cpsia/california.pdf.

Illinois

  • 720 Ill. Comp. Stat. 5/12-21.7, which bans the sale of yo yo waterballs.
  • 410 Ill. Comp. Stat. 45, which regulates the use of lead in all products sold in the state.
  • To read the filing and the full regulations, see: http://www.cpsc.gov/about/cpsia/illinois.pdf.

New York

  • N.Y. Gen. Bus. Law § 396-k, which prohibits the manufacture, sale, import or distribution of toys or other children's articles that present an electrical, mechanical or thermal hazard. See: http://www.cpsc.gov/about/cpsia/newyork1.pdf .
  • N.Y. Gen. Bus. Law §§ 870-873, which prohibits the manufacture, sale, import or distribution of toy weapons that cannot be easily distinguished from actual weapons. See: http://www.cpsc.gov/about/cpsia/newyork2.pdf .

What's Next?: All of these items will likely be the topic of requests for public comment. In the meantime, the clock is ticking on the February 10, 2009 deadline when the 600 ppm lead substrate limits take effect, and many safe materials are not currently excluded from the lead limits. Affected industry members and associations should continue to provide information, data and comments to the CPSC on issues of interest to them.