In an effort to provide clear and reasonable guidance to those impacted by the Consumer Product Safety Improvement Act of 2008 (CPSIA), the U.S. Consumer Product Safety Commission (CPSC) announced yesterday (Friday, February 6, 2009) its enforcement policy for new lead limits established under the law.

The action appears to provide some of the relief that has been requested by the makers of toys and other children’s products, at least insofar as lead enforcement is concerned. 

Yesterday’s announcement also includes several requested exemptions for certain materials, electronic products, and inaccessible parts (see below for details).

A January 30, 2009, action by CPSC had already postponed for one year, or until the CPSC adopts more detailed regulations, certain testing, certification and General Certificates of Compliance (GCC) requirements under the CPSIA.  Enforcement is now scheduled to begin February 10, 2010.

There has been no additional update on phthalates since Thursday’s action by the United States District Court for the Southern District of New York to set aside (i.e., overturn) the CPSC General Counsel’s opinion regarding the non-retroactive application of the phthalate ban.  In a statement on the topic issued yesterday, the CPSC acknowledged that it will abide by the court’s decision.

TIA and its NAM CPSC Coalition partners are considering whether to request a CPSC action that will provide enforcement guidance on phthalates similar to those just handed down on lead.

TIA is also continuing its outreach to Congress and the Commission to act immediately to ensure that – without compromising safety – inherently safe products that do not expose children to established health risks are not indiscriminately removed from store shelves or charitable pantries.

In the meantime, TIA is urging retailers to rely on supplier certifications, heed the CPSC stay and presume that inventory on shelves does not violate CPSIA requirements, unless specifically advised otherwise by the Commission or suppliers.

As CPSC Commissioner Moore noted in voting for the one-year Emergency Stay referenced above (CPSC action of January 30), “If there is one message a small manufacturer should take from the Commission's action today it is this:  If you have been making products without receiving any safety-related complaints, you should go on making and selling your products.”

TIA members and others in the industry are reminded that adherence to regulations which have been clearly established or were in place prior to the passage of CPSIA is still required. For toys, these include the existing mandatory federal toy safety regulations and the need to certify, based upon independent third party testing or participation in TIA’s Toy Safety Certification Program, that production or shipments meet the U.S. lead paint (16 CFR 1303) and small parts (16 CFR 1501) regulations.  General Certificates of Complianceare not required for products manufactured prior to November 12, 2008.

Statement of Commission Enforcement Policy on [CPSIA] Section 101 Lead Limits
(as of February 6, 2009)

Lead limits as defined by the CPSIA:             

§         600ppm for products sold as of February 10, 2009

§         300ppm as of August 14, 2009

§         100ppm, if feasible, as of August 14, 2011

Exclusions and Exemptions

1. Inaccessible Toy Parts Excluded
Accepted a manufacturer's determination that a component part is inaccessible (excluded from regulation).

2. Other Excluded Materials
Indicated it will not prosecute anyone for manufacturing, importing, distributing, selling or offering for sale a children's product on the basis that it contains more than 600 ppm lead in any material that is the subject of the agency's preliminary determination of exclusion which applies to:  wood, cotton, wool; dyed or undyed textiles (other than leather, vinyl or PVC), non-metallic thread and trim used in children's apparel or textile goods (other than treatments that add lead,  ornamental metals, rhinestones, snaps, grommets, zippers or buttons),  ordinary children's books (printed on cardboard or paper, except for accessible plastic, metal or electronic parts ) printed after 1985 or other certain excluded metals and alloys.

This does not apply to parties that have contrary actual knowledge or continue to manufacture, import, distribute or sell the product after being put on notice of not to by agency staff. 
See also: Notice of Proposed Rulemaking Regarding Lead Content Limits on Certain Materials or Products.

3. Electronics
Adopted an interim final rule on exemptions for certain electronic devices for which it is technological feasibility to further limit lead, exempting functional lead in electronic devices and components that comply with the EU RoHS functional requirements (excluding crystal and other nonfunctional parts) 
See also:  draft interim final rule, Exemptions for Certain Electronic Devices.

4. Established a Process to Grant Additional Exclusions
The process described in the CPSC's notice of proposed rulemaking regarding the exclusion of materials or products containing more than 600 ppm of lead will be used until it is amended by final rule.
See also: Notice of Procedures and Requirements for a Commission Determination or Exclusion.
 

[1] 15 USC 2052(a)(16)) defines them as products “designed or intended primarily for children 12 years of age or younger”