CPSC Issues Timeline and FAQ on Lead Content, Lead Paint Ban Provisions of CPSIA

(See today's ITT, 08111410, for BP summary of a November 6, 2008 CPSC public meeting on technical aspects of CPSIA's lead content and lead paint provisions.)

Certification Timeline for Products Subject to Lead Paint Ban, Lead Content Rule

(The products that are "subject to" a ban or standard are generally spelled out in the regulation. A product that is exempt under a standard is not subject to it, and would therefore not require certification to it.)

FAQ on CPSIA's Lead Content and Lead Paint Provisions

The following is a transcription of certain questions and answers on CPSIA's lead content and lead paint provisions in CPSC's FAQ document (partial list):

Q: What furniture articles are exempt under CPSC regulations? Do the lead paint limits apply to furniture whether or not the furniture is intended for children?

A: 16 CFR 1303.1 provides that the lead paint limits apply to toys and other articles intended for use by children, as well as furniture articles for consumer use that bear lead-containing paint. Furniture articles include, but are not limited to beds, bookcases, chairs, chests, tables, dressers, desks, pianos, console televisions, and sofas. However, they do not include appliances such as ranges, refrigerators, dishwashers, clothes washers and dryers, air conditioners, humidifiers and dehumidifiers; fixtures such as bathroom fixtures, built-in cabinets, chandeliers, windows, and doors; or household items such as window shades, venetian blinds, or wall hangings and draperies.

Q: Will toys manufactured outside the U.S. be allowed to be imported to the U.S. for lead testing or will the testing have to be performed outside the U.S. (and pass the new standards) prior to being imported into the U.S.?

A: Manufacturers may submit samples of products for testing in the U.S. without certifying them. However, before shipping any products other than these samples, i.e., products imported for consumption or warehousing or distribution in commerce in the U.S., the products must have the required certifications.

Q: Does the CPSIA envision stuffed animals falling within the scope of the CPSIA's lead limits or phthalate limits?

A: Most stuffed animals would be considered to be children's products and presumably toys. A manufacturer would need to determine whether the design of the stuffed animals is such that it is subject to the lead paint limits, the lead content limits or the phthalate limits.

Q: Would the pending provisions for lead limits in children's products apply to video game hardware sold/distributed in the U.S.?

A: Under the CPSIA, the term "children's product" means a consumer product designed or intended primarily for children 12 years of age or younger. To the extent that video game hardware is intended primarily for children 12 years and younger, it would be subject to the lead limits. The CPSC is currently evaluating whether certain electronic devices, including devices that contain batteries, must comply with the lead limit. CPSC has requested comments regarding the upcoming rulemakings on what product components, or classes of components, will be considered inaccessible to a child through ordinary use and abuse and on whether it will be technologically feasible for certain electronic devices to meet the new lead limits.

Q: How will the lead in substrate provision be applied to products like strollers, playpens and other juvenile products? Will it be applied to every single part, including rivets?

A: The new lead limits will apply to the total lead content by weight for any part of the product. Some children's products or component part of products may be exempted or excluded from the new lead limits if the parts containing lead are inaccessible. Inaccessible parts do not need to meet the lead limits and the CPSC will provide guidance by rule within one year on what component parts are considered inaccessible. Until that time, it is the manufacturer's responsibility to determine which parts of its products are accessible and therefore must meet the statutory lead limits.

Q: Do all children's products require testing for lead or is it only products with some type of surface coating? We sell products that are used in physical education classes (e.g. hula-hoops) that are made from polyethylene and are not painted or coated. Will this product require third-party testing and certification for lead content under the CPSIA?

A: All children's products (as defined by the CPSIA) subject to the lead limit of the CPSIA will eventually require testing for lead, not just those with surface coatings. It is important to distinguish between the rules that apply to lead paint and surface coatings and the rules that apply to lead content. The CPSIA provides limits to the amount of lead in paint and surface coatings and limits to the amount of lead in the content of the product itself. Children's products that are painted, or have surface coatings are also subject to the lead paint limit, in addition to the lead content limits.

Q: We sell craft materials, some packages of beads can have 12 or more colors of beads. Can we composite 3 or more colors at a time to test the beads?

A: No. Compositing to combine different paints or substrates from one or more samples to reduce the number of tests run may fail to detect excessive levels of lead in one individual paint or substrate because of the effect of dilution by non-lead-containing samples. This approach is therefore currently not acceptable. The only exception to "compositing" is when labs have to combine like paint from several like parts or products to obtain a sufficient sample size for analysis because there is an insufficient quantity of paint on one item to perform the testing.

Q: Are chemistry sets, science education sets and other educational materials excluded from the lead limits for content and paint and surface coatings if they bear adequate labeling under 16 CFR 1500.85?

A: 16 CFR 1500.85 provides that certain articles that are intended for children for educational purposes are exempt for classification as a banned hazardous substance under the FHSA and the lead limits under CPSIA if the functional purpose of the particular educational item requires inclusion of the hazardous substance, and it bears labeling giving adequate directions and warnings for safe use, and is intended for use by children who have attained sufficient maturity, and may reasonably be expected, to read and heed such directions and warnings. For example, an electronics kit or robotics kit would be considered educational and the inclusion of a lead-containing component would not subject the kit to the lead testing requirements because the use of lead in some components is required to make the electronic device. Similarly, the materials used for examination or experimentation for science study such as soil, rocks, chemicals, dissections, etc. would also be exempt.

Q: Are children's art materials subject to the new lead limits?

A: Generally yes. To the extent that such art materials are designed or intended primarily for children 12 years of age or younger, they are subject to the lead limits under the CPSIA. Moreover, all art materials, whether or not intended primarily for children, must comply with the Labeling of Hazardous Art Materials Act (LHAMA) codified at 16 CFR 1500.14(b)(8), which requires that art materials be properly labeled if they present a chronic adverse health effect.

Q: The tip on ball point pens are made from leaded brass and there is no source for materials as the lead in the brass is required to machine. Is it ok for children to use ball point pens?

A: The lead ban is applicable to children's products containing lead. The term "children's product" means a consumer product designed or intended primarily for children 12 years of age or younger. Accordingly, to the extent that these pens are general purpose items not being marketed to, or advertised as being intended for use by children 12 years or younger, these pens would not be subject to the lead limits under CPSIA.

Q: Although it is clear that the new lead standards for children's products cover components as well as the final product, how will CPSC consider borosilicate enamels that are vitrified with the substrate to form a product such as a children's mug? Would the borosilicate enamel need to meet the standard as if it were a component that is a distinct separate part of that product? Or would the standard apply only to the finished glass or ceramic item where the borosilicate enamel has been vitrified with the item itself?

A: 16 CFR 1303.2(b)(1) provides that paint and other similar surface-coating materials does not include printing inks or those materials which actually become a part of the substrate, such as the pigment in a plastic article, or those materials which are actually bonded to the substrate, such as by electroplating or ceramic glazing. In most instances, when vitrification has occurred, the materials would be considered to be part of the substrate of the product as one whole part for testing purposes.

Q: Can someone import a product that has lead based paint on it? The product in question is a type of "stilt" that professional painters use to reach high ceilings/walls.

A: The lead paint limits only apply to certain products as described above and only apply to consumer products. In your example, the lead paint and lead content limits do not apply. Generally, a painter's stilt is not a "consumer product" as defined under section 3 of the Consumer Product Safety Act (CPSA). For example, it is not customarily sold to or used by a consumer, but rather, by professional painters in the scope of their employment. Moreover, painter's stilts are not children's products under the CPSIA.

Q: Are outdoor playground products covered by CPSIA section 101 lead limits?

A: The lead paint limits have always applied to outdoor playground equipment and continue to apply under the CPSIA. In addition, section 101, entitled "Children's products containing lead; lead paint rule" imposes lead content limits on all children's products, which includes outdoor playground equipment. Thus, outdoor playground products that will be used primarily by children 12 years of age or younger fall within the scope of the lead provisions of the CPSIA.

Q: Is the use of XRF [X-ray Fluorescence] analysis for compliance testing with regard to lead in substrates under consideration or will wet chemistry be the only method used for testing lead content in substrates?

A: The use of XRF analysis for lead content is being considered. CPSC Directorate for Laboratory Sciences, Chemistry Division (LSC) will post the methods it will be using on the CPSC website in the next few months.

Q: Can XRF technology be used to support general conformity certification as to lead paint or lead content limits?

A: Yes. Where third-party testing by an accredited laboratory is required as the basis for certification, that testing cannot be based on XRF technology at this time; however, XRF testing, either by a manufacturer or by a laboratory, may serve as the basis for general conformity certification. Manufacturers are cautioned, however, to be careful in their use of XRF for this purpose given the difficulties in screening for lead in paint with that technology.

Q: What test method is CPSC requiring for surface coating lead testing and total lead content testing? When will this information be provided?

A: The test method for 16 CFR 1303.1 used by the CPSC Product Testing Laboratory, Chemistry Division (LSC) is available on the CPSC website at: http://www.cpsc.gov/businfo/leadsop.pdf. Other laboratories should consider using these procedures to ensure they obtain results that are consistent with CPSC staff's for purposes of compliance with 16 CFR Part 1303. In addition, the LSC is currently developing other testing methodologies to use for total lead content testing, which will be posted on the CPSC website in the next few months.

¹Enacted as Public Law 110-314 on August 14, 2008.

²The first phase of CPSIA's limit on lead content in children's products begins February 10, 2009, when any children's product that contains more than 600 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 on August 14, 2009 and August 14, 2011. (There are certain exceptions for inaccessible parts, etc. as determined by CPSC in an upcoming rulemaking.)

(Children's products 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.)

³Effective August 14, 2009, the CPSIA makes the lead paint ban of 16 CFR 1303 more stringent by reducing the maximum amount of allowable lead or lead compounds in paint from the current limit of 0.06% to 0.009% of the weight of the total nonvolatile content of the paint or the weight of the dried paint film. (Note that in its FAQ, CPSC expresses these limits differently as 600 ppm and 90 ppm, respectively.)

The general lead paint ban pertains to lead in (1) paint for consumer use, as well as the paint used on (2) toys and other articles intended for use by children that bear paint and (3) furniture for consumer use that bears paint.

(See ITT's Online Archives or 10/20/08 news, 08102010, for most recent BP summary of CPSIA's lead paint ban provisions. See ITT's Online Archives or 08/27/08 news, 08082705, for BP summary of CPSIA's progressive ban on lead content in children's products.)

CPSC timetable of required actions and deadlines involving lead available at http://www.cpsc.gov/about/cpsia/faq/sec101ltimta2.pdf

CPSC FAQ on lead content and lead paint available at http://www.cpsc.gov/about/cpsia/faq/sec101FAQs2.pdf

CPSC Web site on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html