CPSC Approach on CPSIA Lead Content Exclusion Requests Could Change

(See today's ITT, 09101515, for BP summary of the meeting's discussion of a guidance document on certain lead content testing and certification. See future issue of ITT for BP summary of the private sector toy certification program.)

Brass Wheel Lead Exclusion Request to be First Addressed by Full Commission

The Commissioners pointed out that the brass wheel lead content request will be the first request for a CPSIA lead content exclusion to be considered by the full quorum of five CPSC Commissioners. The request is due for Commission vote during the week of October 19-23, 2009.

The CPSIA allows CPSC to grant exclusions for materials or products that exceed the CPSIA lead content limits² for children's products but which will not result in the absorption of any lead into the human body or have any other adverse impact on public health or safety. So far, the Commission has not granted any exclusions, as some lead absorption, however small the amount, was viewed as a possibility.

Two Commissioners Discuss Possible De Minimis Approach to Lead Absorption

The two newest Commissioners, Northup and Adler, laid out their current thinking on requests for CPSIA lead content exclusions, which reflect a possible lightening of the CPSC's strict approach to the lead absorption issue.

Commissioner Northup stated that CPSC should consider granting CPSIA lead content exclusions for products with de minimis amounts of lead absorption.Northup, a former member of Congress, believes it was Congress' intent to have some products qualify for exemption under the lead absorption standard or it would not have been included. This belief, along with its placement in a separate section, leads Northup to think a de minimis exclusion was intended.

Even if this were not the intent, Commissioner Northup states that many other agencies such as the Food and Drug Administration, have set allowable de minimis levels for lead, and CPSC should consider this approach. Such an approach would not harm child safety as these lead levels are considered safe by various agencies, and it would provide much needed relief to industry.

Commissioner Adler also stated that while he's very aware of the harmful nature of lead, if he were free to exercise his own judgment, he would grant the exclusion request as it clearly involves a de mimimis amount of lead absorption. He stated however, that he is considering whether such discretion is allowed under the statute.

(Note that a third commissioner, Commissioner Nord, has repeatedly argued against the statutory confines of the CPSIA and might welcome a less literal interpretation.)

¹Other issues included: a lead determination guidance; lab accreditation requirements for lead; an advance notice of proposed rulemaking for Recreational Off-Highway Vehicles; and the Toy Industry Association's (TIA's) Toy Safety Certification Program.

²The CPSIA imposes progressive limits on lead content in consumer products designed or intended primarily for children 12 and under. Since August 14, 2009, the allowable lead content of children's products has been 300 parts per million. The CPSIA also mandates certification and testing by a CPSC-accredited third party lab to show compliance with the lead content limits. While CPSC announced a one year stay of enforcement of much of this CPSIA testing and certification until February 10, 2010, it did not stay underlying product compliance.

(See ITT's Online Archives or 10/13/09 news, 09101315, for BP summary of the exclusion request for brass wheel parts of toy tractors, etc. which staff suggested be denied as the statutory requirement for lead absorption had not been met.)

CPSC meeting webcast (once posted) will be available at http://www.cpsc.gov/webcast/previous.html