CPSC Finalizes Rule on Children's Electronic Devices & CPSIA Lead Content Exemptions

Final Rule's Regulatory Text "Virtually Identical" to Interim Final Rule

According to CPSC, the final rule is "virtually identical" to the interim final rule that has been in effect since February 10, 2009, with only certain minor, clarifying changes. (See ITT's Online Archives or 02/13/09 news, 09021305, for BP summary of the interim final rule.)

Highlights of Comments, CPSC Responses

CPSC received seven comments in response to its February 2009 interim final rule. Highlights of CPSC responses to those comments as well as statements by CPSC that were not in response to any specific comment include the following (partial list):

Reasonable Definition of "Electronic Device"

CPSC states that it considers a reasonable definition of electronic device to be "a device that generates, stores, distributes, or converts electrical energy into another energy form." CPSC adds that examples of such devices include, but are not limited to, products with batteries or power cords (or that use solar power or other power sources) such as music players, headphones, some toys and games, some calculators, and certain computers or similar electronic learning products.

The Nine Exemptions are for Accessible Parts

CPSC has added language clarifying that the exemptions for nine uses of lead in the rule are applicable only to accessible component parts, as inaccessible component parts not subject to the CPSIA lead content limits.

CPSC has also added language from the CPSIA explaining that a component part is inaccessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, as determined by the Commission.

(See ITT's Online Archives or 08/07/09 news, 09080725, for BP summary of an August 2009 CPSC final rule providing guidance on determining inaccessibility.)

Exemptions Only Apply if Components are Integral to Electronic Operations

CPSC has also added the word "electronic" before the word functioning in 16 CFR 1500.88(c) to emphasize that this rulemaking is intended to be limited to the materials and components necessary for the electronic functioning of children's electronic devices.

For example, CPSC states that an exemption under this rule for bearing shells and bushings would only apply if such components are integral to the operation of electronic devices, such as electric motors. Bearing shells and bushings that are unrelated to electronic operations would not fall within the scope of the rule's exemptions.

CPSIA Third-Party Testing & Certification Required for Three Exemptions

CPSC states that most of the exemptions provided under this rule (e.g. for cathode ray tubes, optical and filter glass, etc.) do not require third-party testing (or certification) under section 102 of the CPSIA because there are no lead content limits associated with the exemptions. However, there are three metal alloy exemptions (for copper, steel, and aluminum) that are not "blanket or absolute" exemptions. Instead, these are presented as alternate lead limits. As such, those components must be tested and certified to verify compliance with their higher, alternate lead content limits. (See below for details.)

(CPSC intends to address component part testing and the establishment of protocols and standards for ensuring children's products are tested for compliance with applicable children's products safety rules in an upcoming rulemaking.)

Rule Does Not Incorporate All EU RoHS Exemptions

CPSC does not believe it is necessary to incorporate all of the exemptions listed in the European Union's Restriction on Hazardous Substances (EU RoHS) directive (2002/95/EC). CPSC states that the EU RoHS directive is meant to address both health and environmental concerns (whereas the CPSIA is limited to health); EU RoHS' scope is different as it covers all electric and electronic equipment; EU RoHS' exemptions are not specific to children's products; etc.

Petitions May be Filed for Additional Exemptions

CPSC states that if additional exemptions for lead-containing component parts in children's electronic devices are needed, a petition can be submitted under the procedures set forth under 16 CFR Part 1051, with supporting documentation.

Removable Battery Packs, Replacement Light Bulbs, Etc.

CPSC continues to determine that removable or replaceable parts, such as battery packs and light bulbs, that are inaccessible when installed in the product, are not subject to the lead content requirements. In addition, these types of spare parts or replacement parts, including battery pack and light bulbs, are not intended primarily for children since such parts are available for general use by the public. While spare parts may sometimes be included with a children's product, in many instances, the parts, necessary for the functioning of the electronic device, are to be installed by adults, and are inaccessible to children once installed.

Labeling is Not Needed

CPSC does not believe that labeling electronic devices for their lead content would add to the safety of these products.

Highlights of Final Rule

Exemptions for Nine Uses of Lead in Certain Component Parts in Children's Electronic Devices

The final rule continues to exempt the following nine uses of lead in certain electronic components of children's electronic products, provided the lead is necessary for the proper electronic functioning of the component part and it is not technologically feasible for the component to meet the CPSIA lead content limits:

(1) Lead blended into the glass of cathode ray tubes, electronic components and fluorescent tubes.

(2) Lead used as an alloying element in steel. The maximum amount of lead shall be less than 0.35% by weight (3500 ppm).

(3) Lead used in the manufacture of aluminum. The maximum amount of lead shall be less than 0.4% by weight (4000 ppm).

(4) Lead used in copper-based alloys. The maximum amount of lead shall be less than 4% by weight (40,000 ppm).

(5) Lead used in lead-bronze bearing shells and bushings.

(6) Lead used in compliant pin connector systems.

(7) Lead used in optical and filter glass.

(8) Lead oxide in plasma display panels (PDP) and surface conduction electron emitter displays (SED) used in structural elements; notably in the front and rear glass dielectric layer, the bus electrode, the black stripe, the address electrode, the barrier ribs, the seal frit and frit ring as well as in print pastes.

(9) Lead oxide in the glass envelope of Black Light Blue (BLB) lamps.

Testing/Certification for Lead Content to be Required for 3 of 9 Exemptions

As noted in the final rule's preamble, CPSIA third party testing and certification for lead content is not required for most of the above exemptions. However, for the following three exemptions, the CPSC sets a higher, alternative lead content limit that must be adhered to. CPSIA third party testing and certification will be required for these three once the enforcement stay on testing and certification for lead content lifts on February 10, 2011³:

lead used as an alloying element in steel (3500 ppm);

lead used in the manufacture of aluminum (4000 ppm); and

lead used in copper-based alloys (40,000 ppm).

Removable/Replaceable Battery Packs, Light Bulbs, Etc. Also Exempt

The final rule continues to exempt from the CPSIA lead content limits components of electronic devices that are removable or replaceable such as battery packs and light bulbs that are inaccessible when the product is assembled in functional form or that are otherwise granted an exemption.

CPSC to Review Technological Feasibility Every Five Years

CPSC staff is directed to reevaluate and report on the technological feasibility of children's electronic devices complying with the CPSIA lead content limits, including the technological feasibility of making accessible component parts inaccessible, and the status of the exemptions, no less than every five years after January 20, 2010.

¹The CPSIA imposes progressive limits on the lead content of children's products 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.

²"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, whether the product is represented in its packaging as such a product, etc.

³In December 2009, CPSC voted to lift its stay on certain CPSIA testing and certification requirements in stages. For lead content, the testing and certification stay will be lifted for children's products manufactured after February 10, 2011. (See ITT's Online Archives or 12/29/09 news, 09122920, for BP summary.)

CPSC contact - Kristina Hatlelid (301) 504-7254

CPSC final rule (FR Pub 01/20/10) available at http://edocket.access.gpo.gov/2010/pdf/2010-877.pdf