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The Consumer Product Safety Improvement Act (“CPSIA”) provides that, as of August 14, 2011, children’s products may not contain more than 100 parts per million (“ppm”) of lead unless the Consumer Product Safety Commission (“CPSC”) determines that such a limit is not technologically feasible.
The law provides that the lead limit shall be deemed technologically feasible with regard to a product or product category if:
(1) a product that complies with the limit is commercially available in the product category;
(2) technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term;
(3) industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or
(4) alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit.
The CPSC conducted a public hearing last February to hear from industry and interested persons about the technological feasibility of meeting the 100 ppm lead content limit for children’s products. The CPSC staff also evaluated whether under current technology raw materials could readily meet this limit and examined the lead content in materials such as plastics, glass, and metals. The agency also considered the economic impact of reducing the lead content limit from the current 300 ppm to 100 ppm.
Based on its analysis, the agency issued a notice on June 22nd stating that there was no evidence to indicate that achieving the 100 ppm limit was not technilogicvally feasible. As such, the agency determined that children’s products must meet the statutory 100 ppm lead content limit as of August 14, 2011.
The CPSC’s briefing memo can be found by clicking here.
Some potential issues for manufacturers, distributors, retailers and consumers to consider:
1. Manufacturers will need to implement supply chain controls. For example, plastics are commonly produced without added lead, but the polymerization process can be initiated with lead, so sourcing of raw materials should be well managed.
2. Manufacturers should use diligence during transitions between the manufacture of non-children’s products containing lead and the manufacture of children’s products on the same equipment. Cross contamination could be an issue.
3. The use of recycled materials may be significantly impacted by the new rule. Recylables are not homogenous and therefore it may be difficult to obtain representative samples or complete necessary testing to support issuance of Certificates of Conformity to confirm compliance with the 100 ppm limit.
4. Manufacturers should be aware that some metal alloys may not specifically identify the presence of lead, but may have lead content.
5. Manufacturers should discuss testing variability with their safety test lab and consider how best to document 100 ppm compliance through a “reasonable program of testing.”
6. Children’s products being sold as of August 11, 2011, must comply with the 100 ppm limit. Make plans on management of existing and non-conforming inventory prior to this date.
This CPSC action applies to children’s products, defined as products designed or intended primarily for children 12 years old and younger. Under the authority of the CPSIA, the CPSC has provided exceptions to the lead content requirement for component parts of products that are not accessible to a child, and for certain electronic products, in addition to determinations regarding certain materials that do not, and would not, contain lead.
Please see our earlier blog posts for information on exceptions to the CPSC’s lead regulations for children’s products, or contact us if you have any questions.