CPSC Proposes Rule to Determine Certain Natural Materials/Metals Do Not Exceed CPSIA Children's Product Lead Content Limits
The Consumer Product Safety Commission has issued a proposed rule that would add a new 16 CFR 1500.91 in order to make determinations that certain natural, untreated and unadulterated materials and certain metals do not exceed the lead content limits for children's products1 that are mandated by the Consumer Product Safety Improvement Act of 2008 (CPSIA2).
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(This proposed rule is substantially similar to the staff memo and preliminary regulatory analysis previously summarized by BP, except with respect to the need for conformity certification. More conciseinformation regarding certification will hopefully be included in the final rule. See ITT's Online Archives or 01/09/09 news, 09010905, for BP summary.)
Written comments are due February 17, 2009.
(The CPSIA imposes progressive limits on lead content in children's products beginning February 10, 2009, when any children's product containing more than 600 parts per million (ppm) total lead content by weight for any part of the product will be treated as a banned hazardous substance. This is followed by decreases in the allowable lead content limit on August 14, 2009 to 300 ppm and on August 14, 2011 to 100 ppm, if feasible. Note that under the CPSIA, the lead limits do not apply to component parts of a product that are not accessible to a child.3 The CPSIA also mandates certain testing and conformity certification4 demonstrating compliance with these limits, unless certain exemptions/exclusions apply.)
Certain Untreated, Unadulterated, Unprocessed Natural Materials Would Not Exceed Lead Content Limits
The proposed rule would determine that the following natural materials do not exceed the 600 ppm or 300 ppm CPSIA lead content limits, provided that these materials have neither been treated or adulterated with the addition of materials or chemicals such as pigments, dyes, coatings, finishes or any other substance, nor undergone any processing that could result in the addition of lead into the product or material:
wood;
natural fibers, including cotton, silk, wool, hemp, flax, and linen;
precious gemstones: diamond, ruby, sapphire, emerald;
Semiprecious gemstones provided that the mineral or material is not based on lead or lead compounds and is not associated in nature with any mineral that is based on lead or lead compounds);5
natural or cultured pearls; and
other natural materials including coral, amber, feathers, fur and untreated leather.
Certain Metals/Alloys Would Also Not Exceed Lead Content Limits
The proposed rule would determine that the following metals and alloys do not exceed the 600 ppm or 300 ppm CPSIA lead content limits provided that no lead or lead-containing metal is intentionally added:
surgical steel;
precious metals: gold (at least 10 karat), sterling silver (at least 925/1000), platinum, palladium, rhodium, osmium, iridium, ruthenium.
Findings would not extend to certain metal components. The above determinations would not extend to the non-steel or non-precious metal components of a product, such as solder or base metals in electroplate, clad or fill applications.
Effect of Determinations That Certain Natural Materials/Metals Do Not Exceed CPSIA Lead Content Limit
CPSC states that the effect of such determinations would be to relieve the material or "product" (this term is not defined or explained) from the CPSIA testing requirement for purposes of supporting the required conformity certificate.
CPSC adds that even where a material or product has been so relieved of the testing requirement; it would still be required to meet the statutory lead level requirements in actual fact. CPSC would obtain and test products in the marketplace to assure that this remains the case and would take appropriate enforcement action in situations where that was not the case.
CPSC Seeks Comments on Proposed Rule, Other Products That Would Not Exceed Lead Limits
In addition to seeking comments on the proposed rule, especially any test results showing that substances covered by the proposed rule had lead exceeding the CPSIA lead limits, CPSC seeks comments on: (i) other natural fibers; (ii) other natural materials; (iii) other metals or alloys; and (iv) other materials; that would not exceed the CPSIA lead content limits.
1"Children's products" under the CPSIA are consumer products designed or intended primarily for children 12 years old or younger. In determining whether a consumer product is primarily intended for such children, the CPSIA outlines certain factors to be considered, including a statement by the manufacturer about the intended use of the product, etc.
2The CPSIA was enacted as Public Law 110-314 on August 14, 2008
3Paint, coatings or electroplating may not be considered a barrier that would make the lead content of a product inaccessible to a child.
4Under the CPSIA, on and after February 10, 2009, general conformity certificates certifying that subject children's products comply with the applicable lead content limit are required. The certification must be based on tests of each product or a reasonable testing program. On and after August 14, 2009, absent CPSC action to the contrary, the certificates must be based on third-party testing performed by a laboratory whose accreditation to perform the testing has been accepted by the CPSC.
(See ITT's Online Archives or 11/18/08 news, 08111805, for BP summary of a CPSC immediate final rule which, effective November 18, 2008, streamlined and limited these certification requirements to domestic manufacturers and importers and stated CPSC would focus its enforcement more on product compliance than certification, at least initially.)
5Minerals that contain lead or are associated in nature with minerals that contain lead include, but are not limited to, the following: Aragonite, bayldonite, boleite, cerussite, crocoite, linarite, mimetite, phosgenite, vanadinite, and wulfenite.
(See ITT's Online Archives or 01/13/09 news, 09011305, for BP overview of this proposed rule and three other proposed rules related to CPSIA lead content exclusions.
See ITT's Online Archives or 01/15/09 and 01/14/09 news, 09011510 and 09011410, for detailed BP summaries of proposed CPSIA lead content exemption rules on inaccessible parts and procedures for seeking exemptions, respectively.
See ITT's Online Archives or 11/14/08 news, 08111410 and 08111415, for BP summaries of CPSC's public meeting and FAQ/timeline on lead content.
See ITT's Online Archives or 11/24/08 and 09/17/08 news, 08112405 and 08091705, for BP summaries of CPSC advisory opinions that children's products that exceed the CPSIA lead content limit cannot be sold from inventory or on store shelves after February 10, 2009.
See ITT's Online Archives or 08/27/08 and 09/10/08 news, 08082705 and 08091005, for BP summaries of the CPSIA lead content provisions and children's product certification requirements, respectively.)
CPSC contact - Kristina Hatlelid (301) 504-7254
CPSC proposed rule (FR Pub 01/15/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-714.pdf
CPSC Website on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html