CPSC Commissioners Question Staff on Feasibility of 100 ppm Lead

(The Consumer Product Safety Improvement Act of 2008 (CPSIA) mandates that as of August 14, 2011, children's products may not contain more than 100 ppm of lead, unless the Commission determines, based on certain criteria¹, that such a limit is not technologically feasible with regard to a product or product category. See ITT’s Online Archives or 07/20/10 and 02/17/11 news, 10072020 and 11021723, for BP summaries of the 100 ppm limit and comments from the trade stating the limit is not feasible.)

Staff Says Low-Lead Options Available, Most Products Already Comply, Etc.

The staff made the following points in its briefing documents and in discussion with the Commissioners:

Most products already comply. Staff believes that most children’s products already comply with the 100 ppm lead content limit. Based on testing of products to date, only a small portion of children’s products, and, in fact, only certain component parts of that small portion of products, have lead content exceeding the 100 ppm level. Among other sources, it points to data from the Hong Kong American Chamber of Commerce on more than 13,000 tests of metallic parts used in the toy industry, showing that 99.54% of samples had less than 100 ppm lead.

Many firms already testing to 100 ppm. In addition, in anticipation of CPSC’s possible adoption of the 100 ppm limit, staff claims that many manufacturers and importers are already requiring their children’s products to be tested to the 100 ppm lead content limit.

Low-lead materials are commercially available. Staff states that low-lead materials that can be used in the production of children’s products generally appear to be commercially available in the market place. Staff drew its conclusions from comments received and numerous phone calls and sourcing requests it conducted in April and May 2011 to determine if 100 ppm lead content materials were commercially available.

Even low lead metal alloys available. Staff concludes that even many different metal alloy products (e.g., steel, aluminum, zinc, and copper alloys (brasses and bronzes), which the trade had stated were among the most problematic materials), are commercially available with less than 100 ppm lead content.

Intentional uses of lead largely eliminated. Staff concedes that metals with lead added for functional purposes generally require a lead content far in excess of either the 300 ppm or 100 ppm limits specified for children’s products. However, it has concluded that intentional uses of lead have largely been eliminated from children’s products because of the current 300 ppm lead content requirement and that technologies and other strategies exist that can be used to achieve compliance with the lower limit.

If lead needed, could be made inaccessible. According to staff, in cases where lead is needed to serve a functional purpose, manufacturers have often been able to reengineer the product to make the leaded component inaccessible and therefore not subject to the lead content limits.

Cost & process burdens claims were insufficient. Staff did concede that there are costs associated with complying with a 100 ppm limit, including those related to stricter control of raw materials and components, alternative materials, product redesign, and increased testing. It even points to two industry estimates that state their costs would increase 20-28%. However, staff concluded that little specific evidence was provided by commenters to explain the processes or costs involved in meeting the lower limit or to support their contentions that meeting the limit is not possible in all cases, despite numerous opportunities CPSC provided to submit such information.

Commissioners Question Cost, Test Variability, Need to Use Virgin Materials, Etc.

The Commissioners, particularly Commissioners Nord and Northup, questioned staff on the following:

Costs not sufficiently measured. According to some of the Commissioners, staff statements on the cost burdens of the 100 ppm lead content limit were too vague and not enough effort was made to analyze the cost burden to the trade of meeting the 100 ppm limit. Staff stated that it attempted to determine costs in its analysis, but did not have sufficient data to quantify the costs for the many types of children’s products involved.

Test variability not accounted for. Commissioners Nord and Northup were concerned that staff did not give sufficient consideration to claims by the trade that commercial labs are unable to consistently measure lead concentrations to the trace level of 100 ppm. They pointed to problems reported by the trade in which materials supposedly known by the manufacturer to meet the requirement fail third-party tests due to variability in the testing equipment and procedures across labs. CPSC lab staff stated that these concerns are overstated and that such problems emerge in the range of parts per billion, not parts per million.

Concern over use of virgin materials. Commissioners Nord and Adler questioned staff on statements that it may be necessary to use virgin materials, particularly plastics, to meet the 100 ppm limit. Staff stated that although this would temporarily conflict with other public policy goals (e.g. environmental goals), eventually, even recycled materials would be 100 ppm lead-compliant if the inputs were made from compliant material. However, the Commissioners pointed out that this was only true to a certain extent as the 100 ppm limit only applies to children’s products, and materials used in other products do not need to meet this limit.

Vote on 100 ppm Limit Content Limit Set for July 13

The Commission is scheduled to vote July 13, 2011 on the 100 lead content limit in children’s products.

¹The CPSIA specifies that it is technologically feasible for a product or product category to comply with the 100 ppm limit if:

• a product that complies with the limit is commercially available in the product category;
• technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term;
• industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or
• alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit.

Staff briefing packages and draft Federal Register notice available here and here.