Tie vote at CPSC means ballpoint pens remain subject to lead limit

pensAnother deadlock. In a tie vote (1-1) on June 5, 2009, CPSC failed to act on a request from Writing Instrument Manufacturers Association (WIMA) to exclude the tips of ballpoint and roller ball pens from CPSIA lead limits. Commissioner Moore voted to deny the request while Commissioner Nord voted to approve the request. In the event of a tie vote, Nord voted that a stay of enforcement should be granted until a definitive vote is cast and Moore voted that no stay of enforcement should be granted. Unless and until CPSC reconsiders the issue ballpoint and roller ball pens which are “children’s products” will be subject to CPSIA lead limits.

Which pens?

CPSIA lead limits do not apply to all pens, just to those that are consumer products designed or primarily intended for children 12 years of age or younger. Most pens are not children’s products, so the WIMA requested exemption would cover just a narrow subset of pens. In a written statement, CPSC General Counsel Falvey explained that the lead limits do not apply to “pens that are as likely to be used by adults as by children,” further noting that “just because an ordinary ballpoint pen might be marketed once a year as a back to school item does not convert that pen from a general purpose item to a children’s product under the CPSIA.”

Without an exclusion, no ballpoint or roller ball pens may be designed or intended as children’s products. Why? Because the tiny tips on the pens contain lead in excess of CPSIA limits and there is no known substitute for that lead.

one pen

Commissioner Moore’s perspective

Commissioner Moore concluded that the Commission did not have sufficient discretion to grant the exclusion and that there was not a compelling reason for the stay. Arguing against the stay of enforcement, Moore noted that it would “granting a stay would allow the pens that children are most likely to find play value in, and, therefore, are most likely to handle as playthings, to be made and marketed during the period of the stay.” Moore underscored the narrow application of the lead limits and claimed that he does not expect the agency to turn into the “pen police” and rather that industry members should police themselves.

Commissioner Nord’s perspective

Focusing on the risk of harm, Commissioner Nord voted in favor of the exemption. Nord noted that in the briefing package, staff concluded that harm through normal use of a lead-containing pen is extremely remote and would come through ingestion, which is particularly remote given the age of children for whom ballpoint pens are appropriate. In conclusion, Nord wrote:

“The Commission needs to spend its resources focusing on products that actually hard children, not chasing speculative harms that are not relevant to the real world. Removing perfectly safe products will needlessly limit consumer choice and, more importantly, not advance consumer safety. If Section 101(b) [providing CPSC authority to grant exclusions to the lead limits] has any meaning at all, then a rulemaking proceeding to consider an exclusion for children’s pens should be initiated.”

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