CPSC Votes to Deny Stay on Lead Content Limits; Issues Statement on Enforcement

Tweet

February 9, 2009

The Consumer Product Safety Commission (CPSC) has voted to deny a petition for an immediate stay on the February 10, 2009 effective date of the new lead content limits established by the Consumer Product Safety Improvement Act of 2008, after declaring that the it did not have the authority to alter deadlines imposed by the statute.

 

After the vote, the CPSC simultaneously issued Statement on Enforcement Policy and an Interim Final Rule amending the scope of the new lead limits. According the Statement on Enforcement Policy, the CPSC will:

• Not impose penalties against a children’s product to the extent that it is made of certain natural materials (pdf), such as wood, cotton, wool, or certain metals and alloys which the Commission has recognized rarely, if ever, contain lead;
• Not impose penalties against an ordinary children’s book printed after 1985; or
• Not impose penalties against dyed or undyed textiles (not including leather, vinyl or PVC) and non-metallic thread and trim used in children’s apparel and other fabric products, such as baby blankets.
• The Commission generally will not prosecute someone for making, selling or distributing items in these categories even if it turns out that such an item actually contains more than 600 ppm lead.
• Accept a manufacturer’s determination that a lead-containing part on their product is inaccessible to a child and not subject to the new lead limits, if it is consistent with the Commission’s proposed guidance or is based on a reasonable reading of the inaccessibility requirement. Paint and other coatings or electroplating are not considered barriers that make a component inaccessible.
• However, Sellers will not be immune from prosecution if CPSC’s Office of Compliance finds that someone had actual knowledge that one of these children’s products contained more than 600 ppm lead or continued to make, import, distribute or sell such a product after being put on notice. Agency staff will seek recalls of violative children’s products or other corrective actions, where appropriate.

The new Interim Final Rule, effective February 10, 2009, exempts from the lead content limits certain component parts in children’s electronic devices that cannot be made without lead due to a lack of substitutes. As a result, CPSC will presume that lead in glass cathode ray tubes, plasma display panels, certain metal alloys, and certain other products/materials, do not violate lead limits.

As announced on January 30, 2009, the Commission approved a one year stay of enforcementfor certain testing and certification requirements for manufacturers and importers. Significant to makers of children’s products, the ‘stay’ provides limited relief from the testing and certification for total lead content limits, phthalates limits for certain products and mandatory toy standards. Manufacturers and importers – large and small – of children’s products will not need to test or certify to these new requirements, but will still need to meet the lead and phthalates limits, mandatory toy standards and other requirements. Certification based on testing by an accredited laboratory is still required for painted children’s products and soon will be required for children’s metal jewelry, as well as certain other products for non-lead issues.