Section 101 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) sets a limits on the lead content of the components of children’s products. On December 23 and 24, 2008, the staff of the Consumer Product Safety Commission (CPSC) submitted to the Commission a series of memoranda addressing the issues of exempt materials and exemptions from these limits for inaccessible components and electronic devices in children’s products The Commission is due to vote on its staff recommendations, submitted in the form of draft Federal Register Notices, by January 5, 2009.

(1)  Certain Materials or Products that Do Not Exceed the CPSIA Limits for Lead Content.

The CPSC staff recommends that the Commission find certain natural products, metals and alloys to be lead-free, or to contain lead below the limits set forth in the CPSIA, thus relieving manufacturers or importers of the need to test those materials for lead.  The proposed list of natural products, metals and alloys is very similar to the “Class I” materials allowed in jewelry in California under state law AB 1681 (2006). It includes precious and certain semi-precious gemstones (except for those based on lead or found associated with lead in nature), natural and cultured pearls, wood, natural fibers (including cotton, wool and silk), coral, amber, feathers, fur, untreated leather, surgical steel, and precious metals (gold of at least 10K quality, sterling silver, platinum, and the platinum metals). Notably, the list does not include stainless steel, glass, crystal or ceramics (such as rhinestones and cloisonné), which the California law defines as Class I materials. The list does not extend to the non-surgical steel or non-precious metal components of a product, such as solder or non-precious electroplate or fill, nor to pigments, dyes, coating, finishes or other substances that could contain lead.

The Commission is requested to vote on a draft Federal Register notice of proposed rulemaking on this issue.

(2)  Technical Information Required for Requesting an Exclusion from CPSIA Lead Limit Compliance for Certain Materials or Products.

If companies intend to request a determination that a material or product does not, and will not under foreseeable circumstances, exceed the lead limits of the CPSIA, the CPSC staff recommends that they be required to support their claims with appropriate test results or other scientific evidence. In addition, companies requesting an exclusion from the CPSIA lead limits for a product or material that contains lead above the limits should be required to provide appropriate scientific evidence showing that normal use and abuse of the product or material by a child would not result in the absorption of any lead into the body, nor any other impact on health and safety. 

The CPSC staff is requesting the Commission to vote on a draft Federal Register notice of proposed rulemaking that would provide companies with a process by which they could request such a determination or exemption.

(3)  Exclusions and Exemptions from Compliance with Lead Limits: Inaccessibility and Certain Electronic Devices.

(A) Proposed Interpretive Rule on Inaccessibility

Under the CPSIA, a component of a children’s product may be exempted from the lead limits even if the component contains lead, so long as it is inaccessible to the child.  CPSC staff considers that an inaccessible component is one that is located inside the product (whether visible to the user or not), and that cannot be touched by the child.  Thus, the component may be enclosed in any type of material, such as plastic, rubber, metal or fabric (but not paint, coatings, electroplating or similar barrier). If a lead-containing component is inside a product but not fully enclosed by other parts of the product, a child might still contact it with a finger or tongue. In such a case, the CPSC staff recommends determining accessibility with the accessibility probe currently used for testing for sharp points and edges, both before and after use and abuse tests, in accordance with 16 CFR §§1500.48-49 and §§1500.50-53 , and ASTM Toy Safety Standard F963-07.  Although these procedures are designed to test accessibility in products for children up to eight years old, the staff believes it is appropriate in this case to apply the same tests to products made for children aged nine through twelve.  However, use and abuse tests for these older children’s products should not include intentional destruction or disassembly of products, including use of a tool such as a screwdriver or other means or knowledge not generally available to children under nine.

The CPSC staff is requesting the Commission to vote on a draft Federal Register notice that would issue these inaccessibility recommendations for notice and comment as a proposed interpretative rule.

(B) Exemptions for Certain Electronic Devices

The CPSIA allows the CPSC to issue regulations designed to eliminate or minimize the potential for exposure to, and accessibility of, lead in electronic devices if it is not technologically feasible to meet the required lead limits for all components.  The CPSC staff believes that, in many cases, it is indeed not technologically feasible for electronic devices to comply with the lead limits, especially for some solders, cathode ray tubes, and some other electronic components.  Some components of electronic devices are either inaccessible by virtue of complete enclosure, or can be shown to be inaccessible, even after normal use and abuse, by application of the accessibility probe referred to above, and should therefore not be subject to the lead limits. Moreover, the staff believes that replacement parts should be considered inaccessible so long as they become inaccessible when properly installed in a product.

However, it remains technologically unfeasible for certain electronic components that do not meet inaccessibility criteria to meet the lead limits of the CPSIA.  In such cases, the CPSC staff recommends that the Commission consider adopting, as exemptions to the CPSIA lead limits, the exemptions listed in the Annex to the EU Directive 2002/95/EC on the restriction on the use of certain hazardous substances in electrical and electronic equipment (“RoHS”), provided that the EU exemption is based on a functional need for both the component itself and for lead in that component. (This would exempt, for example, lead in high-lead solder, ?4.0% lead in copper alloys, and lead in glass and ceramic components such as piezoelectric devices, but not decorative lead crystal components.)  CPSIA requires that electronic components that cannot be made inaccessible and are not negligible for a RoHS-type exclusion comply with the new lead limits if technologically feasible.  Although the RoHS lead limit for non-excluded electronic component materials is 1000 ppm, the CPSC staff believes that many, if not most, non-RoHS-exempted electronic components will also meet the CPSIA’s initial 600 ppm limit, may possibly meet the 300 ppm limit that goes into effect in August 2009, and may even meet the 100 ppm limit for 2012 in some cases.  Thus, electronic components may be compliant by meeting the requirements for inaccessibility, qualifying for a RoHS-type exemption, or meeting the lead limits of the CPSIA – but not by meeting the general 1000 ppm limit of RoHS.  The staff plans to reevaluate the issues of technological feasibility (including the RoHS limits and exemptions) at less than five-year intervals.

The CPSC staff is requesting the Commission to vote on a draft Federal Register notice of proposed rulemaking on the exemptions described above.

Referenced documents.

• Proposed Determinations Regarding Lead Content Limits on Certain Materials or Products; Notice of Proposed Rulemaking, December 24, 2008

• Notice of Proposed Procedures and Requirements for a Commission Determination or Exclusion, December 24, 2008

• Proposed Interpretative Rule Providing Guidance on Inaccessibility, December 23, 2008

• Exemption for Certain Electronic Devices; Notice of Proposed Rulemaking, December 23, 2008

Please contact any of the individuals below if you have any questions regarding CPSC’s request for comments or would like to discuss the possibility of submitting comments.

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

Robert G. Edwards, PhD
edwards.robert@arentfox.com
202.857.6346

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