Now mostly in effect, the Consumer Product Safety Improvement Act of 2008 places many new restrictions on consumer products designed or intended primarily for use by children 12 years of age or under. One of the significant new provisions is a restriction on the permissible lead concentrations in such products.

Recognizing that lead is a critical component of many products (toys with batteries, bicycles, ATVs, etc.), however, Congress created an exception for lead-containing "component parts" that are "inaccessible" to children. Effective August 14, 2009, the Consumer Product Safety Commission (CPSC) has issued interpretative guidance on this important exception.

A. A Physical Barrier Must Prevent a Child from Physically Contacting a Lead-Containing Component Part

The primary concern with lead in children's products is the possibility of lead particles being physically transferred to a child's hand, and the child's hand coming in contact with his or her mouth. Accordingly, the lead restrictions do not apply to component parts of products that are not physically accessible to a child. To be considered "inaccessible," component parts must be "effectively sealed so that there is no point of entry to any internal parts that contain lead."

To test for accessibility, the CPSC endorsed the use of an "accessibility probe," which is already defined by existing federal regulations for testing the accessibility of component parts with sharp edges. As long as the accessibility probe cannot contact the lead-containing component part, it is considered inaccessible.

The physical barrier can be made of materials such as hard plastic, soft plastic, rubber, wood and metal, so long as the barrier itself does not contain lead (the testing and certification requirements still apply to the barrier). Simply applying a surface coating on a lead part—such as paint or electroplating—is not sufficient. As discussed below, a special rule applies to fabric barriers because of the possibility that liquids such as saliva and stomach acid can cause lead particles to leach through the fabric and be introduced into a child's system.

B. The Physical Barrier Must Be Sufficiently Strong to Withstand Reasonably Foreseeable Use and Misuse

Despite the use of an acceptable physical barrier, a lead-containing component part is still considered accessible if it can be exposed to a child through "reasonably foreseeable use and misuse" of the product. This includes expose to the component part because of the barrier deteriorating, breaking or coming off by, for example, product aging, or by the child swallowing, mouthing, handling, touching or grasping the product.

Fabric barriers- Because of the possibility of leaching, lead-containing component parts separated by a fabric barrier (e.g., batteries in stuffed animals, springs in bed mattresses) are considered accessible if it can fit in a child's mouth. A part can fit in a child's mouth if any part in one dimension is less than 5 centimeters.

Product aging- Because the effects of aging are product-specific, the CPSC declined to issue generalized guidance on when aging can cause a component part to be rendered accessible. The commission will continue to review the effects of aging on accessibility and may issue guidance in the future. For now, manufacturers, importers and sellers should make the normal useful life of a product known to consumers, warn about the potential for exposure to lead as a result of use beyond its life, and ensure that the barrier survives the product's useful life.

Breaking- The CPSC adopted "use and abuse" and bite-testing procedures that already exist under federal law for other product classes. The tests are designed to replicate normal use and foreseeable misuse of products depending on the age of the child for which the product is designed or intended.

Intentional disassembly/destruction- A component part is not considered accessible simply because the product can be intentionally destroyed or taken apart (e.g., unscrewing a battery cover) by some children. The test is whether the means or knowledge necessary to destroy or disassemble the barrier is generally available to a child younger than 8. The CPSC suggests that using tools to accomplish this would generally be too sophisticated for children under 8.

C. Third-Party Testing Is Not (Yet) Required for Component Part Inaccessibility

Currently, the third-party testing and certification requirements do not apply to component part inaccessibility compliance. But the CPSC has suggested it may address testing and certification requirements in separate rulemaking. The physical barriers separating the component parts must still be tested and certified for lead under existing regulations (unless the material falls under one of the CPSC's pre-approved exceptions).

D. Conclusion

The inaccessibility exception to the lead restrictions provides some reprieve to manufacturers of children's products that require lead for their performance. The lead-containing component part must be inaccessible to a child by use of a physical barrier that prevents physical contact with any part of the child's body and leaching if the object is placed in the child's mouth. The CPSC's new regulatory action is not the final word on this exception, but it provides useful guidance on complying with the new lead prohibitions.