Capitol Comments

CPSC Stays Lead Testing For Children's Toys For One Year

By Jessica Franken, INDA Director of Government Affairs | September 17, 2009

questions about underlying product safety law, however, persist

Some were dubbing it "National Bankruptcy Day" and "Apocalypse Now" for U.S. manufacturing. That's because it was the day U.S. makers of thousands of children's products were supposed to have begun testing to certify their products met new limits on lead and phthalates content or be banned from sale in the U.S.

On February 9, however, the U.S. Consumer Product Safety Commission (CPSC) announced it was staying enforcement of testing requirements under the recently enacted Consumer Product Safety Improvement Act of 2008 (CPSIA) for one year to address the "substantial confusion" that had arisen over which products will be tested and how, whether some products will be exempted, and much more.

While news of the delay was a welcome reprieve for firms scrambling to figure out how they were going to meet the requirements, the agency has said manufacturers and importers of these products are still required to meet the lead and phthalates limits, meaning products that exceed allowable standards must come off store shelves.Meanwhile, agency staff is struggling to release the numerous rulemakings and guidance documents needed to ensure informed industry compliance.

Given the continued uncertainties swirling around this broad-sweeping law, this article will update Capitol Comments readers on the status of the CPSIA implementation.


The legislation imposing the lead and phthalate limits followed a rash of product recalls in 2007 involving products ranging from tainted pet food and toxic toothpaste to defective curling irons from China.The toxic straw that that broke the poisoned camel's back came when CPSC announced it was recalling some 1.5 million Thomas the Tank Engine toys that had been made with lead paint.

Not surprisingly, Toxic Thomas inspired a lot of media coverage. The ensuing public outcry prompted a wave of activity on Capitol Hill. Panicked Congressional lawmakers responded with the press conferences, hearings and a flurry of legislative proposals.

Out of the political jockeying emerged the Consumer Product Safety Improvement Act (P.L. No. 110-314), signed into law by President Bush on August 14, 2008. The act made broad changes, providing CPSC additional funding and enhanced enforcement authority. It increased civil penalty caps from $8000 to $100,000 per individual violation and from $1.25 million to $15 million for multiple violations. Criminal penalties include asset forfeiture and up to five years in prison.

Particularly noteworthy, the law also phases in new limits on the amount of lead in children's products; defined as any product designed or intended for children under the age of 12. Effective February 10, 2009, these items may contain no more than 600 parts per million (ppm) lead, a number that will be reduced to 300 ppm on August 14, 2009 and 100 ppm three years later.Anything that fails to meet the new thresholds is banned for sale in the U.S., with violators subject to the aforementioned civil and criminal penalties.

The CPSIA also bans the sale of children's toys and childcare articles containing more than 0.1% of certain phthalates after February 10. In both cases, the limits are retroactive, meaning products already in the marketplace on store shelves and in warehouses must comply or be pulled.

To demonstrate conformity, manufacturers and importers will need to have their products tested by an accredited independent lab and issue a certificate stating they meet all applicable CPSC requirements.

There are exceptions for things like electronics and inaccessible components and CPSC has also said it will consider exclusions for products or materials that are known to carry no lead risk, but the agency is still in the process of making those determinations.

Industry Voices Concerns

Not surprisingly, while expressing support for the CPSIA's overall goals, many industry groups have expressed misgivings about the implementation process.

In a January 28 petition signed by dozens of industry groups including INDA, Association of the Nonwoven Fabrics Industry, the National Association of Manufacturers (NAM) asked CPSC to stay the lead limits effective date, noting several Commission proposals addressing component inaccessibility, possible exclusions and specific testing procedures are either still pending or haven't even been released. NAM argued these uncertainties would force retailers to pull safe products off the shelves, with devastating financial consequences.

Despite these warnings, the Commission ultimately voted February 6 to deny the NAM petition, noting only Congress has the authority to stay the effective date of the lead limits. Acting CPSC chairman Nancy Nord, however, expressed regret for the decision, noting that even with the year-long stay on testing requirements, the "disruptive results" of the retroactive lead limits are already being felt. She cited accounts of inventory being yanked from shelves and retailers demanding distributors take back their products.

Meanwhile, a coalition of more than two dozen textile and apparel industry groups has made several joint submissions to CPSC. These filings have asked the Commission to exempt from lead testing all textile materials, regardless of dyeing or processing. They cite extensive testing data demonstrating the inherent lead-free nature of textiles and request an extension of this exclusion to any children's article made entirely out of exempt textile materials.

Looking Ahead

Although it is still too early to tell whether these arguments will be successful, CPSC released on February 6 a statement on its enforcement policy saying that it will not impose penalties against anyone for making, selling or distributing children's books and items made of natural products like wool or cotton and dyed and undyed textile materials.

The commission notes it will generally not prosecute someone for making or selling items in these categories even if it turns out that they actually contain more than 600 ppm lead. Sellers, however, will not be immune from prosecution if CPSC learns they had knowledge the products exceeded lead limits.

Moving forward, the commission is scheduled to publish requirements for the accreditation and regular auditing of third-party conformity assessment bodies in June, and will promulgate a rule addressing component accessibility in August. Other protocols and standards addressing random sample testing and verifying the conformity of tested products are expected later this fall.

At the same time, Republicans lawmakers have introduced bills in the House of Representatives (HR 968) and the Senate (S 374, S 389), which among other things would delay the CPSIA regulations, allow for component testing and provide other relief for small businesses. So far, this legislation has been referred to Congres­sional committee and it is unclear whether they will gain any traction.

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