On January 15, 2010, at the direction of Congress, the Consumer Product Safety Commission
made recommendations for the improvement of Section 101 of the Consumer Product Safety Improvement Act (
CPSIA) [
PDF]. Section 101 establishes lead content limits and lead-in-paint limits. The initial lead content limit established under the
CPSIA took effect on February 10, 2009 and was 600 parts per million (ppm). This limit was reduced to 300 ppm on August 14, 2009. On that same date, the 90 ppm lead-in-paint limit also took effect. Recently, Congress asked the
CPSC to assess enforcement efforts and make recommendations for improvement.
In its January 15, 2010 statement, the CPSC reported that “[i]n Fiscal Year 2009, the Office of Compliance identified 338 violations relating to lead content limits of the CPSIA.” These violations were identified through voluntary reports, market surveillance, and most often screening at ports using x-ray fluorescence technology. With respect to lead content enforcement, the CPSC identified three hurdles.
First, the CPSC explained that “given the breadth of the definition of children’s products, there were numerous products that were technically noncompliant” but that would not likely cause lead absorption into the human body. While the CPSC utilized exclusions under the CPSIA, certain products such as youth all-terrain vehicles, children’s bicycles, lead crystals and rhinestones in children’s apparel, and brass materials in toys were denied exemption requests.
An additional hurdle identified by the CPSC was the provision of the CPSIA relating to the retroactive application of the lead content limits. Essentially, the CPSIA made it unlawful to sell products that exceeded the lead content limits regardless of their manufacture date. This provision created numerous problems for retailers with large inventories when the limits went into effect and second-hand stores. These problems were especially significant for retailers that sold used books. Finally, the CPSC noted that the costs of third-party product testing was expensive and was creating a huge burden for small manufacturers.
With respect to lead-in-paint limit enforcement, the CPSC reported 117 violations during Fiscal Year 2009, most of which were found during staff screening. Interestingly, the CPSC reported that they had “not seen the same implementation and enforcement issues with regard to lowering the lead paint limits as it has seen with the lead content limits.” Therefore, it did not identify any hurdles or make any improvement recommendations to Congress with respect to lead-in-paint.
After identifying the above hurdles to enforcement and implementation, the CPSC made four recommendations to Congress with respect to lead content enforcement. The first addressed products that were out of compliance but posed no risk of danger to children. The CPSC recommended “additional flexibility within this section to grant exclusions from the lead content limits in order to address certain products.” The second recommendation addressed printed materials, which would grant an “exclusion for ordinary children’s books and other children’s paper-based printed materials. The third addresses the proposed reduction of lead content limits from 300 ppm to 100 ppm in August 2011. The CPSC recommended prospective application of this limit as opposed to the now retroactive application of limits. The CPSC’s final recommendation addresses required testing and proposes that testing and certification requirements be based upon volume of production and channels of distribution.
All manufacturers and retailers first need to be aware of the lead limits now in effect as well as the proposed lower limits to be implemented in August 2011. However, based on the tone of the recommendations made to Congress, it appears that the CPSC is trying to address the burdens that these restrictions put on manufacturers and retailers without compromising the safety of our children. We all should be on the look out for possible revisions to the current CPSIA and its possible effect on liability for violations.
