For the next two years (until July 1, 2011), certain parts of children’s bikes, jogger strollers, and bicycle trailers (here “bikes”) will not be subject to CPSIA lead limits. The Consumer Product Safety Commission voted to stay enforcement of the lead content limit for bike components made with metal alloys. Specifically, permissible metal alloys include steel with up to 0.35% lead, aluminum with up to 0.4% lead, and copper with up to 4.0% lead.
Temporary stay granted instead of permanent exemption
Earlier this year, the Bicycle Product Suppliers Association (“BPSA”) petitioned the CPSC to exempt metal alloys from the lead content limit. The CPSC denied the BPSA request for an exemption and instead granted a temporary stay of enforcement. The stay of enforcement applies to all replacement parts provided that the replacement parts contain lead in equal or lesser amounts than the original parts.
Manufacturers must file report in August 2009
By August 29, 2009 (60 days from stay enactment), all manufacturers (and some distributors) covered by the stay must file a report identifying all bike models produced between May 1, 2008 and May 1, 2009, and offering a detailed account of the lead contained in the metal alloy components of each bike.
Manufacturers must file comprehensive plan in December 2009
By December 31, 2009, each covered manufacturer must provide a comprehensive plan to the CPSC describing how and when it intends to reduce the lead exposure from each metal alloy identified in the first report. The report must also address any adverse safety impacts that could result by accelerating the time frame to reduce the lead.
Manufacturers who timely submit the August report and the December plan, may be eligible for an extension of the stay beyond July 1, 2011.
Commissioner Moore explains benefit of stay
In a written statement accompanying the stay, Commissioner Moore expressed concern that enforcement of the lead limits could impair the structural or mechanical integrity of children’s bicycles. Citing a recent rise in bicycle recalls involving cracking frames, breaking handlebars and stems, and breaking forks due to causes unknown to the CPSC, Moore explained that the stay is necessary to allow the industry time to ensure that substitutes for lead do not compromise the structural or mechanical integrity of the bicycles.
Commissioner Nord explains necessity of stay
Commissioner Nord’s written statement takes a different tone. Nord first notes that “enforcement of the law as written by Congress would limit the availability and increase the costs of a product that is almost synonymous with childhood.” Because lead strengthens the safety of bikes, Nord concludes that a stay of enforcement is their only option. As for the requirement that manufacturers develop plans to reengineer their products to remove lead, Nord states “we are requiring that manufacturers use scarce resources in challenging economic times to attempt to address a risk that children just do not encounter.”
Commissioner Nord explains risk of CPSC reliance on stays
Nord concludes her written statement with the following warning and a call for Congress and the agency to take deliberate steps to amend the CPSIA:
It is very troubling that the commission has had to resort to using stays of enforcement to avoid the unexpected, and, in some cases, the dangerous consequences that would result from enforcement of the CPSIA. Such a result does not increase consumer confidence and creates uncertainty in the marketplace. There are those who would add that, at some point, regular use of stays open the agency up to legal challenge for not enforcing the law.