Yesterday, US Consumer Product Safety Commission (CPSC) staff held a public meeting to discuss the new lead limits for both substrate and paint established by the Consumer Product Safety Improvement Act (CPSIA).  This meeting, which was heated at times, was intended to provide CPSC with insight from interested stakeholders on the technical issues associated with complying with these new lead limits, as well as their views on upcoming rulemakings.  By way of background, the CPSIA directs the Commission to issue a rule by August 14, 2009 that provides guidance on specific product components, or classes of components, that will be considered inaccessible to a child through ordinary use and abuse.  In addition, under the CPSIA, if CPSC determines that it is not technologically feasible for certain electronic devices to comply with the new lead limits, the Commission must issue a regulation specifying the requirements for eliminating or minimizing the potential for exposure to and accessibility of lead in such electronic devices.  CPSC expects to issue a rule on these devices as soon as possible. 

CPSC staff invited representatives from several organizations and corporations, including the American Apparel & Footwear Association, the Toy Industry Association, LG Electronics USA, Inc., the Information Technology Industry Council, and Bureau Veritas, to present their views on products or components that should be considered inaccessible to a child and whether it will be technologically feasible for certain electronic devices to meet the new lead limits.  A summary highlighting the issues discussed during this meeting, as well as links to various meeting documents, appear below.

1. Retroactive Application of the CPSIA to Inventory.  It appears that CPSC’s Office of General Counsel may revise its position with respect to inventory and products located on store shelves.  CPSC’s General Counsel, Cheryl Falvey, mentioned that she received a formal letter on November 5, 2008 requesting reconsideration of her memorandum, dated September 12, 2008, which concluded that products containing lead above the specified limits cannot be sold from inventory or appear on store shelves after February 10, 2009.  Several retailers stood up during the meeting and urged CPSC to reconsider its position on retroactivity, noting that if they are not allowed to “sell-through” existing inventory, they would be forced to “write-off” millions of dollars worth of non-compliant merchandise beginning on February 10.  Ms. Falvey stated that she will review this letter in the next week. 

The issue of inventory was a heated topic throughout much of the meeting, and Ms. Falvey recommended that companies provide written comments to CPSC detailing their concerns with respect to her memorandum.  She also advised participants that state attorneys general can interpret the CPSIA lead provisions as applying to inventory and take appropriate enforcement action without CPSC involvement. 

2. Standards CPSC Should Consider As it Develops Possible Exemptions.  Several participants urged the Commission to consider the lead limits (i.e., 1000 ppm) and exemptions established under the European Community’s 2002 RoHS (Restriction on the use of certain Hazardous Substances) when drafting a regulation for electronic equipment.  According to several participants, the electronics industry spent approximately $35 billion to reduce the levels of lead to 1000 ppm in electronic products to comply with RoHS.  They also indicated that it is unclear at this time the feasibility of reducing the levels of lead to 600 ppm and lower in accordance with the CPSIA.  In addition, participants recommended that CPSC consider European Standard 71 (Safety of Toys), ASTM International Standard F963 (Standard Consumer Safety Specification for Toy Safety), ASTM F2577 (Standard Guide for Assessment of Materials and Products for Declarable Substances), and ASTM F2617 (Standard Test Method for Identification and Quantification of Chromium, Bromine, Cadmium, Mercury, and Lead in Polymeric Material Using Energy Dispersive X-ray Spectrometry) when drafting proposed regulations.

3. Identification of Products that Do Not Contain Lead.  CPSC requested written comments from interested stakeholders identifying specific products, such as a 100 percent cotton T-shirt, that do not contain lead and, thus, should not be subject to the CPSIA lead requirements, including testing.

4. Third Party Market Surveillance Program.  Some participants recommended that industry create third-party market surveillance programs to test and certify lead-containing materials, such as steel, for compliance with the CPSIA.  Members that participate in such a program could purchase certified materials from suppliers for use in their products.

5. Compositing.  CPSC staff reminded participants that they cannot combine different parts from one or more products to achieve a test sample.  CPSC is concerned that compositing may fail to detect excessive lead in one individual part.  CPSC staff noted that combining like paint from several like parts to obtain a sufficient sample size may be necessary and appropriate to obtain valid analytical results. 

CPSC staff encourages interested stakeholders to submit comments to the Commission on any aspect of the CPSIA, including retroactive application of the CPSIA to inventory and the identification of specific products that do not contain lead and, thus, should not be tested.

Please do not hesitate to contact us if you have any questions regarding this meeting or would like to discuss submitting comments to CPSC detailing your concerns with respect to certain provisions of the CPSIA. 

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338