CPSC Sets Precedent by Denying CPSIA Lead Content Exclusion Request
The Commissioners of the Consumer Product Safety Commission have voted to deny a precedent-setting request for an exclusion from the lead content limits1 for children's products set by the Consumer Product Safety Improvement Act of 2008 (CPSIA).
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The request, made by Learning Curve Brands Inc., was for brass and other mechanical components of replica and toy die-cast items (small vehicle toys, such as trucks and tractors). The specific component discussed in the request was a brass collar securing each wheel of a toy tractor to the axles.
Brass Wheel Exclusion Request Was First Addressed by Full Commission
The brass wheel lead content exclusion request was the first such request to be considered by the full quorum of five CPSC Commissioners.
While the CPSIA allows the Commissioners to grant exclusions for materials or products that exceed the CPSIA lead content limits, they can only do so if the materials/products do not result in any absorption of any lead into the human body or 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. However, at an October 14, 2009 public meeting, some of the Commissioners discussed a de minimis approach to CPSIA lead content exclusions, suggesting a lightening of CPSC's interpretation was possible. (See ITT's Online Archives or 10/15/09 news, 09101510, for BP summary of the meeting's discussion.)
Commissioners Vote 3 to 2 to Deny Exclusion Request
After three moves failed to (1) accept the petition, (2) delay the vote, and (3) deny the petition but grant a stay of enforcement, the Commissioners voted three to two to deny Learning Curve's request for a lead content exclusion.
Will Instead Consider Letter to Congress Seeking Guidance
After the exclusion request was denied, Commissioners Northup and Nord, who were in the minority during voting, proposed that the Commission draft a letter to Congress explaining the precedent-setting nature of their denial, the statutory confines of the law, and to seek guidance on Congressional intent for lead content exclusions.
While two of the Commissioners in the majority made no comment, Commissioner Adler, who voted to deny the exclusion request based on the statutory confines of the CPSIA, stated he was interested in such a letter, depending on its content.
Commissioners Nord and Northup agreed to draft a letter for future Commission consideration.
1The CPSIA (enacted as Public Law 110-314 on August 14, 2008) imposes progressive limits on lead content in consumer products designed or intended primarily for children 12 and under such that: (i) on February 10, 2009, children's products with more than 600 ppm of total lead content by weight in any accessible part became banned hazardous substances; (ii) on August 14, 2009, the allowable lead content limit in such products decreased to 300 ppm; and (iii) on August 14, 2011, if determined feasible by CPSC, the limit will decrease to 100 ppm.
(See ITT's Online Archives or 10/13/09 news, 09101315, for BP summary of the CPSC staff recommendation to deny this exclusion request because the statutory standard had not been met.)
CPSC Webcast (dated 11/04/09) available at http://www.cpsc.gov/webcast/previous.html