CPSC announces lead limit on childrens products will be reduced from 300ppm to 100ppm effective August 14, 2011

Update to this story posted August 2, 2011

Unfortunately the CPSC decided to move forward and reduce the lead content in products intended for "children" from 300ppm to 100ppm (parts per million) effective August 14, 2011. (Originally it was 600ppm when the law first took effect) This unfortunately was required by Congress, provided the CPSC in its rulemeaking function determined that it was "technologically feasible" to get the lead down to 100ppm. As the bicycle industry indicated in testimony before the CPSC this effectively eliminates the use of all recycled steel frames, most of which are used to make low cost children's bikes (low cost is helpful here as the children quickly outgrow the bikes). The bicycle industry also indicated that at this point in time lead testing results were not very reliable when you try to reach below 300ppm. Ahh..but its "technologically" feasible with NASA level equipment. Well sure, but we are not building a space shuttle and the recreational sports industry does not have NASA's "budget" (tax dollars).

The CPSC of course focused on "technologically" feasible, not "economically" or "reasonably" feasible. Thank you congressional staffer that used a poor choice of words. (see definition in bold below which was what the CPSC was using as guideance).

The bigger point here is that this law was flawed from the start. No children in the USA are dying or  getting sick from lead poisoning in toys, bicycles or motorcycles. The biggest "lead" threat to children does not come from consumer products. The law should only have applied only to specific items likely to go in a child's mouth (shown by empirical evidence). Bicycles, motorcycles and most recreational products don't. Unfortunately Congress chased lead (and a few select phthalates) as the only bogeyman (thanks to misled consumers and the media) and did not even focus on the most plentiful sources of lead to kids. We need to focus on what is really harming kids in the US. Lead is not in the top 20. The bigger problem is the whole race to go from 600ppm to 100pm is futile and will not insure any greater safety, but will incur exponentially more costs for small businesses. This is the problem with regulation. "Regulation" always looks and sounds good from 20,000 feet up until people that really have to make the widgets take a close look at it and what will really be required to implement it. Then you see the nightmare train wreck. But people with lifetime jobs in Government could care less about your small business job. And we wonder why unemployment is still so stubbornly high.

We all thought the CPSC would do the right thing in implementing the law via regulations, but the fact is that no one is willing to stick their neck out in government and declare the "emperor has no clothes" (or that this law and the 100ppm standard really does nothing at all to protect children and just harms US small businesses). The same is true in Congress. If a legislator came out and said reducing lead 600ppm to 100ppm means nothing to children's safety the "children's lobby" would accuse then of "wanting to harm children and puppy dogs". Some have come out and been bold but were outnumbered and outvoted.

There have been numerous bills to address some of the problems in the CPSIA since 2008. None really have moved thru Congress which in the last two years has been in a state of panicked deadline gridlock. Now with the debt crisis coming to a head on August 2, 2011 there are very few days to deal with this issue before the August 14, 2011 deadline. The National Association of Manufacturers is taking their best shot in an ad campaign here:

National Association of Manufacturers Ad Campaign regarding HR 1939

The only thing on the table now with any hope of passing (any time this summer) is HR 1939 which has been stalled in "mark up" since Mid May 2011.


So starting on August 14, 2011 manufacturers and distributors of children's products must comply with the new 100 ppm federal limit for total lead content. CPSC will not enforce the CPSIA's independent third party testing requirement for total lead content until December 31, 2011, due to a stay of enforcement that is already in place. There are some legitimate questions and ambiguities regarding how the new 100 ppm requirement interacts with the latest "bicycle-motorcycle stay" thru December 31, 2011.


The first is whether or not your company complied with the stay's initial requirements (which required some onerous reporting) and if you failed to do that whether or not you can take advantage of the stay thru December 31, 2011.


The second is to keep in mind that as to bicycles the stay only deals with components made with metal alloys, including steel containing up to 0.35 percent lead, aluminum with up to 0.4 percent lead, and copper with up to 4.0 percent lead. (see 74 FR at 31257 for all details)


Finally there is a question as to how the stay thru December 31, 2011 interacts with the current 100 ppm lead requirement. One could argue that you have to make sure lead is below 100 ppm in your children's product but you don't have to "test and certify". Apparently this sort of "catch 22" makes sense to people in government. The reality is that the CPSC likely will not be chasing down manufactures of bicycles and motorcycles on the 100 ppm requirement until after December 31, 2011, but I would not want to bet my company on that or anything the CPSC may or may not do. They are just too unpredictable these days.


Finally, to add to the confusion, lead content levels for children's products (the base material) are different than the so called "lead paint/coatings standard" which has been .009 percent since August 14, 2009.

FOR IMMEDIATE RELEASE

July 15, 2011

Release #11-278

CPSC Announces New, Lower Limit for Lead Content in Children’s Products

WASHINGTON, D.C. - The U.S. Consumer Product Safety Commission (CPSC) voted (3-2) that there was insufficient evidence to make a determination that manufacturers of children’s products sold in the United States could not meet a total lead content limit of 100 parts per million (ppm) for a product or product category. The new total lead content limit, which is called for in the Consumer Product Safety Improvement Act (CPSIA), goes into effect on August 14, 2011 for manufacturers, importers, retailers and distributors of children’s products.

Through the CPSIA, Congress set tough new levels for lead content in products designed or primarily intended for children 12 and younger. Lead is a heavy metal that is toxic for children, and associated with lowered levels of learning, impaired hearing, brain damage and, at high levels, can be fatal.

Congress directed CPSC to phase in the reduced levels for lead content over a three year period, starting with 600 ppm on February 10, 2009. The level dropped to 300 ppm on August 14, 2009. Finally, Congress directed the total lead content limit be set at 100 ppm, unless the Commission determined it was not technologically feasible for a product or product category.

The Commission was not able to determine that 100 ppm total lead content is not technologically feasible, as staff found that materials containing less than 100 ppm total lead content are commercially available in the marketplace for manufacturers. CPSC staff also found many products currently on the market, that have been tested by CPSC or other organizations, that are already in compliance with the new 100 ppm total lead content limit.

Starting on August 14, 2011, manufacturers, importers, retailers and distributors of children’s products must comply with the new 100 ppm federal limit for total lead content. CPSC will not enforce the CPSIA’s independent third party testing requirement for total lead content until December 31, 2011, due to a stay of enforcement that is already in place.

The stay of enforcement does not apply to children’s metal jewelry, which currently must undergo independent third party testing.

The new 100 ppm lead content limit does not apply to inaccessible (internal) parts of children’s products and certain component parts of children’s electronic devices, like electronic connectors and plugs, including headphone plugs.

Lead content levels for children’s products are different from the levels Congress set for lead in paint or surface coatings. The limit for lead in paint or surface coatings is .009 percent. The .009 percent level has been in place since August 14, 2009 and independent third party testing is required for all paints or surfaces coatings used on children’s products.

Commissioner's Statements: Chairman Inez Tenenbaum and Commissioner Nancy Nord (both PDF).

[Federal Register Volume 76, Number 46 (Wednesday, March 9, 2011)] [Notices] [Pages 12944-12945] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 2011-5231]

CONSUMER PRODUCT SAFETY COMMISSION

[Docket No. CPSC-2010-0080]

Children's Products Containing Lead; Technological Feasibility of 100 ppm for Lead Content; Notice, Reopening of the Hearing Record

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Notice, reopening of the hearing record.

-----------------------------------------------------------------------

SUMMARY: Section 101(a) of 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 U.S. Consumer Product Safety Commission (``CPSC,'' ``Commission,'' or ``we'') determines that such a limit is not technologically feasible. The Commission may make such a determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children's products. On February 16, 2011, the Commission conducted a public hearing to receive views from all interested parties about the technological feasibility of meeting the 100 ppm lead content limit for children's products and associated public health considerations. Individual Commissioners requested at the hearing that certain participants respond to additional questions in writing, as well as submit relevant studies and additional data referenced in oral presentations. Accordingly, through this notice, the Commission is reopening the hearing record until March 24, 2011.

ADDRESSES: Supplemental Materials identified by Docket No. CPSC-2010- 0080 may be submitted by any of the following methods:

Electronic Submissions

Supplemental Materials may be submitted to the Office of the Secretary by e-mail at cpsc-os@cpsc.gov.

Written Submissions

Submit written submissions in the following way: Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, U.S. Consumer Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

Instructions: All submissions received must include the agency name and docket number for this notice. All materials received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information electronically. Such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Concerning submission of materials: Rockelle Hammond, U.S. Consumer Product Safety Commission, Bethesda, MD 20814; telephone: (301) 504-6833; e-mail: cpscos@cpsc.gov. For all other matters: Dominique Williams, U.S. Consumer Product Safety Commission, Bethesda, MD 20814; telephone: (301) 504-7597; e-mail: dwilliams@cpsc.gov.

SUPPLEMENTARY INFORMATION: Section 101(a)(2)(C) of the CPSIA (15 U.S.C. 1278a(a)(2)(C)) provides that, as of August 14, 2011, children's products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible. The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children's products. Section 101(d) of the CPSIA (15 U.S.C. 1278a(d)) provides that a 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.

In the Federal Register of January 26, 2011 (76 FR 4641), we published a notice (``hearing notice'') announcing that the Commission would hold a public hearing pursuant to section 101(a) of the CPSIA. The hearing notice stated that the Commission was seeking information on specific issues, such as whether any product or product category already complies with the 100 ppm limit and what factors or considerations we should evaluate in deciding whether a technology is ``commercially available.''

We held the hearing on February 16, 2011. We heard presentations by and received comments from consumer groups, manufacturers, associations, and laboratories regarding the technological feasibility of meeting the 100 ppm lead content limit. At the hearing, individual Commissioners requested that certain participants respond to additional questions in writing and submit relevant studies and additional data. Through this notice, we are announcing that we have placed individual Commissioner's additional questions into the docket and will place any responses into the docket. The questions submitted and responses that are received will be made available on http://www.regulations.gov under Docket No. CPSC-2010-0080, Supporting and Related Material. The Commission will consider any additional material received during the reopening of the hearing record, in addition to information collected at the hearing, in the course of evaluating its response. The Commission is reopening the hearing record to add individual Commissioner's questions to the docket and allow for responses to those questions, and so the hearing record will remain open until March 24, 2011.

Dated: March 3, 2011. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. 2011-5231 Filed 3-8-11; 8:45 am] BILLING CODE 6355-01-P

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The Consumer Product Safety Database: Why You Should Care

Reprinted with permission from the June/July 2011 edition of Bicycle Dealer Magazine

Download pdf version

By Steven W. Hansen

In August 2008 President Bush signed into the law the Consumer Product Safety “Improvement” Act (the so-called CPSIA). The law was a response to what the general media described as a “flurry” of recalls of children’s toys from China that contained “dangerous levels” of lead. So Congress wrote a law that very few in the recreational products industry were paying much attention to. Only after the bill was passed and the Consumer Product Safety Commission (CPSC) was handed the bill to implement did things start getting testy. By that time it was too late to “fix” the law without new Congressional action. The CPSC argued it could not do much about preventing the effect of the law and did very little to offset its harsh effects.

The bicycle and recreational products industry was especially hard hit as the law really should have only been for specific types of products that were likely to end up in a child’s mouth. But Congress ended up virtually banning all lead in all bicycles and motorcycles. So much so that it’s become virtually impossible to make a metal product that complies. Now we all know that children are not likely to put motorcycles or bicycles in their mouths…but they could.

Meanwhile, there were some rather unnoticed provisions in the 2008 law that had a rather long “implementation period”. It was the so-called consumer product safety database (the CPSC “database”). It was set to go into effect in December 2010 after the CPSC created a new web portal and database to handle the “requirements” of the Congressional mandate in the August 2008 law.

I and a number of others looked into the May 2010 proposed regulations (which became final in December 2010) that the CPSC drafted that it was proposing to implement the new law and we did not like what we saw. For one thing, the database was much broader in scope than the majority of the other parts of the act: it pertained to ALL consumer products (not just those intended for children) and encompassed any problem with the product, not just those involving lead or that were a violation of any CPSC laws or regulations.

The primary problem was that this was going to be an “open” database, meaning that consumers could post complaints or injuries (or “near” injuries) related to a product and they would be posted on the Internet for all to see and search. Now we have all lived with Google for a few years now and know that, quite frankly, you can find just about anything negative you want to find about a product. It seems that more than half of what we read on the web about products is complaints, not praise.

The CPSC database will only magnify this problem, not improve it. As you may well know already, typing a product name followed by “recall” usually brings up the CPSC website in the first 5-10 search results, on average. We know that the CPSC database will enjoy the same Google “preference”. The CPSC database will also be filled only with negative reports -- nothing positive. In addition, it will likely be given great respect and deemed trustworthy by parents and other consumers as it’s a government website. The information will appear to be “vetted” because it only provides information on “unsafe” products, not just those that consumers “don’t like”. But the real question is, should it be deemed trustworthy?

Another problem with the site is that, as the industry and its proponents like me argued, the data should be entered by consumers that actually own or have used the products and were harmed, not merely onlookers, or neighbors and other “interested persons”. Currently, virtually anyone can enter information. This, then, gives rise to another problem. That of “accuracy”. If the person inputting the data was not the user of the product and was not involved in the incident, its going to be very hard to get accurate information about the product, the accident and the specific causation issues that are relevant. Worse, other “interested persons” such as personal injury attorneys, may have a financial interest in reporting information that is not accurate.

One of the problems that is going to plague the bicycle industry is vagueness in the reports with respect to model years and which models and, more important, if the issue is with a component or a complete bike. Typically, if something goes “wrong” with a bike, its related to a component, not the bike brand or model name. This is yet another headache for manufacturers and distributors to be watchful for. This will lead to further consumer confusion with the database information and its accuracy.

In the “old” days, the CPSC would mail incident reports to manufacturers or product distributors who could then comment on the accuracy of the report. If the “reporting party” posts vague information and refuses to allow the CPSC to release his name or other information, there will be no way for the manufacturer to determine if the report is in fact accurate. And this all has to be done in nine calendar days from the time the manufacturer receives the report. Otherwise, it’s published as-is.

Suffice it to say that within a year, this database will likely be filled with very negative reports about many perfectly safe recreational products (when used as directed). But what will consumers and plaintiff’s attorneys do with the database? The argument has essentially been: “Its better to have inaccurate information out there than none at all." Nothing could be further from the truth.

So what should independent bicycle dealers do about the database? Although there is no legal reason to check the database, you should become familiar with it. It’s accessible to anyone at www.saferproducts.gov . More important, if you are the sole retail outlet for a particular product in the US and the manufacturer and / or distributor is outside the USA, then you really do need pay particular attention to the database and might even consider registering so that reports regarding the product come to you. It may also become very important to retailers if the distributor or manufacturer goes out of business.

Even if you are not the sole retailer, you should keep abreast of what consumers are saying about the products you sell and what their complaints are. It could tip you off to a potential recall of the product or a claim being made that involves your store. Again, provided that there are enough “accurate” reports that you can read from which to draw a reliable conclusion.

You also need to be prepared for consumers coming into your store with complaints about the product armed with similar complaints they found on-line in the database. They will argue that these “reports” legitimize their need for a return. Also, if you sense that problems are escalating via the database, make sure you alert the distributor and manufacturer of the issue as they may not be watching the site or even registered at the site.

The site might also be of interest to you in planning next year’s purchases, but you will need to take all of it with a grain of salt and use it primarily for comparison between different products. It’s important to keep in mind that any products listed are likely not recalled. They could be at some later time but, as I am aware, the complain database and the recall database are not tied together.

The database is still very much in its infancy. We have no idea how this site will be used by consumers or attorney or manufacturers or if it really will result in safer products. It’s too early to know. But five years from now there are likely going be millions of complaints in the database (which presumably will remain posted forever). And the headaches are only going to get worse for people like me who represent product manufacturers, distributors and retailers.

Steven W. Hansen served as Secretary to the ASTM Subcommittee on Bicycles and is an attorney who defends recreational product manufacturers, distributors and retailers in product liability lawsuits as well as various persons and entities participating in and promoting recreational sports. The information in this column is subject to change and may not be applicable in your state. It is intended as a thought-provoking discussion of general legal principles and does not constitute legal advice. Any opinions expressed herein are solely those of the author.

 

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2008 Conditions of Use

Enhancing CPSC Authority and Discretion Act of 2011 (ECADA) assigned bill number HR 1939 and set for further markup on May 26, 2011

The full Committee on Energy and Commerce will hold a markup on Wednesday, May 25, 2011, at 4:00 p.m. in 2123 Rayburn House Office Building. On Wednesday, the Committee will convene to conduct opening statements only. It will then reconvene on Thursday, May 26, 2011, at 10:00 a.m. in 2123 Rayburn House Office Building. The markup will include H.R. 1939, Enhancing CPSC Authority and Discretion Act of 2011 (ECADA). Read the Background Memo on H.R. 1939.  H.R. 1939, introduced by Commerce, Manufacturing, and Trade Subcommittee Chairman Rep. Mary Bono Mack (R-CA), would revise the Consumer Product Safety Improvement Act of 2008 (CPSIA) and allow the Consumer Product Safety Commission greater authority and flexibility to regulate based on risk. Once the bill is out of this Committee it should be available for a complete review here. The May 24, 2011 version is here

Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228 © Copyright 1996-2008 Conditions of Use