Details of CPSC's Denial of Lead Content Exclusion for Crystal and Glass Beads, Etc.
In their recent, unanimous vote to deny a request to exclude crystal and glass beads contained in children's jewelry and other products from the lead content limits1 set by the Consumer Product Safety Improvement Act of 2008 (CPSIA2), the three Consumer Product Safety Commissioners, Tenenbaum, Moore, and Nord, also issued statements explaining their votes.
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(The Commissioners denied the exclusion request made by the Fashion Jewelry Trade Association and others3 (collectively, FJTA) because, among other things, the amount of lead contained in the crystal beads that were tested ranged from 900 to 23,000 ppm, well in excess of the CPSIA's limits, despite the low level of actual lead absorption associated with crystal and glass beads.)
Tenenbaum, Moore Agree to Limit "Bead Product" Enforcement to Age 6 & Under
Chairman Tenenbaum and Commissioner Moore both stated that the CPSC would focus its enforcement activities on crystal and glass bead products designed and intended primarily for children six years of age and younger, the population most at risk for mouthing and swallowing small objects.
According to Chairman Tenenbaum, many of the children's products that contain crystal and glass beads that are subject to the CPSIA lead limits do not present an immediate danger of harmful lead exposure to children, and CPSC's primary enforcement focus will remain on noncomplying lead products that present serious health risks to children.
Commissioner Moore agreed, noting that the CPSC needs to prioritize its use of limited compliance resources and has always used the relative severity of hazards to do so.
CPSIA Likely Preempts California Law Allowing 1 Gram Crystals in Jewelry
In its exclusion request, FJTA noted that California has a law which restricts lead content of certain children's jewelry products but allows for the use of up to 1 gram of crystals in such products. It also noted that California has asked CPSC to exclude this law from the scope of CPSIA's preemption provisions.
Commissioner Moore responded that while a few states, such as California, allow lead crystals in children's jewelry as long as the weight of the crystals does not exceed one gram, "it is difficult to find a basis to allow similar enforcement discretion under federal law." He further adds that the one gram limit was predicated on a type of risk analysis that the CPSIA has deemed to not be protective enough of the children and that to allow this exception to its enforcement activities is simply not supportable under the strict standards of the CPSIA.
CPSC sources state that as California's standard is lower than the CPSIA it would be very unlikely for the Commission to grant California a preemption exception, though they could not verify the status of California's request.
Commissioner Nord's Position to Grant a Stay Was in Minority
Commissioner Nord, who believes the subject crystal and glass beads have no real safety issues and would cause significant economic hardship and consumer upset to remove from the marketplace, voted to deny the exclusion request but to grant the products a limited stay of enforcement of the CPSIA lead content limits to allow Congress time to reconsider the CPSIA.
1Effective February 10, 2009, consumer products designed or intended primarily for children 12 and under that have more than 600 ppm of total lead content by weight in any accessible part became banned hazardous substances. This will be followed by decreases in the allowable limit to 300 ppm on August 14, 2009 and if feasible, to 100 ppm on August 14, 2011. (Paint, coatings or electroplating may not be considered a barrier that would make the lead content of a product inaccessible to a child.) CPSC has determined that the lead content limits apply not only to products manufactured after the effective dates, but also to products manufactured earlier that are sold from inventory or on store shelves after the effective dates.
2Enacted as Public Law 110-314 on August 14, 2008.
3Manufacturing Jewelers and Suppliers of America, Footwear Distributors and Retailers of America, National Retail Federation, and United Dance Merchants of America.
(See ITT's Online Archives or 07/20/09 news, 09072005, for BP summary of the CPSC Commissioners' unanimous vote to deny FJTA's exclusion request.
See ITT's Online Archives or 07/13/09 news, 09071315, for BP summary of CPSC staff recommendation to vote "no" on the exclusion.
See ITT's Online Archives or 03/11/09 news, 09031115, for BP summary of CPSC final rule on procedures for requesting CPSIA lead content determinations and exclusions.
See ITT's Online Archives or 02/10/09 news, 09021005, for details of CPSC's enforcement policy that went into effect February 10, 2009 for CPSIA lead content.
See ITT's Online Archives or 02/06/09 news, 09020610, for BP summary of CPSC's one year stay (until February 10, 2010) of most CPSIA testing and certification requirements (but not underlying compliance), including for lead content.)
Record of Commission Action with attached statements by the Commissioners (posted 07/20/09) available at http://www.cpsc.gov/library/foia/ballot/ballot09/fjtaexclusionrequest.pdf