Children's Lead Testing Stay Set to Lift Feb 10 Absent CPSC Action
Consumer Product Safety Commission sources confirm that the agency’s stay of enforcement that has been in effect since February 10, 2009 on the Consumer Product Safety Improvement Act (CPSIA) third-party testing and manufacturer/importer certification requirements for lead content of children’s products is set to lift on February 10, 2011, absent Commission action.
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They noted that the Commission may choose to act further on the stay, but could not say for sure one way or the other.
(Note that CPSIA testing and certification for the lead content of children's metal jewelry was never stayed; nor were the underlying lead content limits. In addition, there are certain materials and components (paper, textiles, ink, etc.) that CPSC has determined are either not subject to the testing and certification requirement; are not subject to the lead content limits themselves; or whose compliance with the lead content limits are temporarily stayed.1)
Commissioner Nord Has Asked for Briefing and Vote
Commissioner Nord blogged in December 2010 that many in the trade are unaware the stay will automatically lift, unless the Commission takes some action to the contrary. Nord also noted her concerns about lifting the stay in February 2011, including the economic impact on small manufacturers, the fact that the rulemaking on component testing is still pending, etc.
For these reasons, she has asked for a public briefing on lead testing and consideration of a formal commission vote on whether the stay should be extended.
Testing/Certification Has Been Stayed for Lead Content Since Feb 2009
CPSC’s statute requires each manufacturer (including an importer) or private labeler of a children’s product subject to a children’s product safety rule (such as the limit on lead content) to submit sufficient samples of the product, or samples that are identical in all material respects to the product, to a CPSC-accredited third-party lab to be tested for compliance with that children’s product safety rule.
Based on this testing, CPSC requires domestic manufacturers (in the case of domestic products) or importers (in the case of imports)2 to issue a certificate which certifies that the children’s product complies with this rule.
However, CPSC has stayed enforcement of these testing and certification requirements for lead content since February 2009 (except for children’s metal jewelry). (See ITT’s Online Archives or 02/02/09 news, 09020205, for BP summary of CPSC’s original stay of enforcement.)
CPSC Has Already Lifted Stay for Other Products and Rules
In December 2009, CPSC announced that it would lift its testing and certification stay of enforcement in stages. For some products and safety rules, the stay was lifted on February 10, 2010; for others, there were different dates. For lead content of children’s products, the agency said the testing/certification stay would remain in place until February 10, 2011. (See ITT’s Online Archives or 12/29/09 news, 09122920, for BP summary of CPSC’s notice lifting the stay in stages.)
Longer Stay for Lead Content Was to Wait for Definition and Component Rules
CPSC had stated in December 2009 that this delay for lead content was meant to allow component testing to form the basis for certifications for lead content and to permit the staff to complete a rulemaking on the definition of the term “children’s product,” among other reasons.
Definition Rule Issued, Component Rule Not Expected Before Feb 2011
While the children’s product definition final rule has already been issued, CPSC sources state that they do not think the component testing final rule will be issued before February 10, 2011, but they do not know when it will be issued.
(See ITT’s Online Archives or 05/21/10 and 10/14/10 news, 10052134 and 10101412, for BP summaries of the proposed rule on component testing and the final rule on the definition of children’s products.)
If Stay Lifts, 3rd-Party Testing/Certification Will Be Needed for Lead Content After Feb 10
According to CPSC sources, if the testing and certification stay lifts on February 10, 2011, children’s products manufactured after this date will have to be tested by a CPSC accredited third-party lab and based on that testing, certified by the manufacturer or importeras complying with the lead content limits.
Underlying Lead Content Limits Never Stayed
CPSC has always cautioned that the testing and certification stay did not affect underlying product compliance. Therefore, children’ products, unless exempt or otherwise not subject to the limits, have had to comply with the actual lead content limits since they took effect in 2009. This limit is currently set at 300 parts per million (ppm), but is scheduled to decrease to 100 ppm on August 14, 2011, unless CPSC determines that it is not technologically feasible for a product or product category.3
Congressional Committee Said It Would Consider Lead Content “Fixes” in 2011
Note that in a December 2010 subcommittee meeting of the Senate Commerce, Science, and Transportation Committee on consumer product safety, Chairman Pryor (D) stated that he had already spoken to Representative Barton (R) about working on amendments to the CPSIA in early 2011. (See ITT’s Online Archives or 12/07/10 news, 10120727, for BP summary.)
1CPSC has determined that a number of materials (paper, textiles, ink, etc.) do not exceed the lead content limits and therefore do not require any CPSIA testing and certification for lead content. CPSC has also issued: (i) a final rule excluding certain components of children's electronic devices from compliance with the lead content limits; (ii) a final rule defining inaccessible parts as these are exempt from complying with the lead content limits by statute; and (iii) two-year stays of enforcement for certain components of children's (youth) ATVs and bicycles, giving them until May 1, 2011 and July 1, 2011, respectively, to comply with the lead content limits.
2CPSC has interpreted the certification requirement as affecting domestic manufacturers (in the case of domestic products) and importers (in the case of imported products). (See ITT’s Online Archives or 11/18/08 news, 08111805, for BP summary of a November 2008 CPSC final rule interpreting this requirement.)
3The CPSIA imposed progressive limits on lead content in consumer products designed or intended primarily for children 12 and under such that: (i) on February 10, 2009, children's products with more than 600 ppm of total lead content by weight in any accessible part became banned hazardous substances; (ii) on August 14, 2009, the allowable lead content limit in such products decreased to 300 ppm; and (iii) on August 14, 2011, the limit will decrease to 100 ppm, unless CPSC determines that it is not technologically feasible for a product or product category. (See ITT’s Online Archives or 10/19/10 news, 10101914, for BP summary on the comments CPSC received regarding the technological feasibility of the 100 ppm lead content limit.)