CPSC Requests Comments on Feasability of Lowering Lead Content Limits for Children's Products to 100 ppm

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July 28, 2010

The Consumer Product Safety Commission (CPSC) has published a notice in the Federal Register requesting comments on the technological feasibility of lowering the limit of lead content in children’s products to 100 parts per million (ppm). The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the  CPSC to lower allowable lead content from 300 ppm to 100 ppm by August, 14, 2011, unless it determines that is technologically feasible for a product or product category.  Should the commission determine that the 100 ppm limit is not feasible for a product, it must issue regulations establishing the limit below 300 ppm it believes to be feasible.

Under the CPSIA, a lead limit will be deemed technologically feasible with regard to a product or product category if:

• a product that complies with the limit is commercially available in the product category;
• technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term;
• industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting;
• or alternative practices, best practices or other operational changes would allow the manufacturer to comply with the limit.

To help make its determination, the CPSC is requesting information on the following by September 27, 2010:

1. For products and materials that currently meet the 100 ppm lead content limit, provide:

(i) information and test data regarding products or materials, including metals, plastics, glass, or recycled materials that are at or below the 100 ppm lead content limit (specify which materials were tested, the number of tests conducted for each material and, for each material, the percentage of tests that exceed 100 ppm, if any);

(ii) information and data on industrial strategies or devices, if any, that have enabled the manufacturer to comply with the 100 ppm lead content limit (specify the methodologies used for each material);

(iii) information and data on the impact, if any, the use of materials that are compliant with the 100 ppm lead content limit, has on the functional or safety requirements specified for the product or product category (specifywhich materials were used); and

2. For products and materials that currently do not meet the 100 ppm lead content limit, but do meet the 300 ppm lead content limit, provide:

(i) information and test data showing the lead content of such products or materials, including metals, plastics, glass, or recycled materials (specify which materials were tested, the number of tests conducted for each material and, for each material, the lead content of the material, and the percentage of tests that are at or below 100 ppm, if any);

(ii) information and data on whether such products or materials could be made compliant with the 100 ppm lead content limit through the use of different products or materials:

(iii) information and data on the strategies or devices, alternative practices, best practices, or other operational changes that may be used to enable the manufacturer to comply with the 100 ppm lead content limit;

(iv) information and data on the lowest lead content limit under 300 ppm that is technologically feasible for such products or materials; and

(v) the date(s) by which such products and materials could be expected to meet the 100 ppm lead content limits.

3. The Commission also seeks comment on any other factors that could affect compliance with this requirement.

For more information on how to submit comments, please contact a Barnes/Richardson attorney.