As of January 1, 2010, Illinois law requires lead warning labels for children’s jewelry, child care articles, and toys containing paint that contain more than 40 parts per million (ppm) lead content. With a labeling threshold of 40 ppm, significantly lower than the federal lead content limit of 300 pm, the Illinois Lead Poisoning Prevention Act adds a substantial new regulatory burden for manufacturers or importers wishing to sell children’s products in Illinois.

Illinois Warning Requirement

Specifically, the Illinois Law provides that “no person, firm, or corporation shall sell, have, offer for sale, or transfer [children’s jewelry, child care articles, or toys containing paint] that contain a total lead content in any component part of the item that is more than 0.004% (40 parts per million) but less than 0.06% (600 parts per million) by total weight or a lower standard for lead content as may be established by federal or State law or regulation unless that item bears a warning statement that indicates that at least one component part of the item contains lead.”

The Illinois Law requires each warning label to contain at least the following language: “WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD.” Warning labels must be located on the product itself or on the label of the immediate container of the product. The law also provides that compliance with hazardous substance labeling requirements under the Federal Hazardous Substances Act constitutes compliance with the Illinois warning label requirements.

Violation of the Illinois Lead Law is punishable as a Class A misdemeanor. The Attorney General or the State’s Attorney in which the violation occurs may also bring an action for enforcement of the Illinois Law, a temporary restraining order or preliminary injunction, or may seek a civil penalty.

Preemption Problem?

Whereas CPSIA requirements govern the lead content of children’s products, the Illinois Lead Law requires a warning statement on certain products with lead content above 40 ppm but below the federal limit. As detailed in a previous post, the 2008 Consumer Product Safety Improvement Act (CPSIA) lowered the lead content limit for children’s products to 300 ppm, and this limit will become progressively lower in coming years, to reach a potential low point of 100 ppm in August of 2014. CPSIA also lowered the lead paint limit for all consumer products, not just children’s products, to 90 ppm.

CPSIA mandates that if the lead content of a product exceeds the applicable limit, then the product is a banned hazardous substance under the Federal Hazardous Substances Act (FHSA). The FHSA bans the introduction of or receipt in interstate commerce of any banned hazardous substance. Under existing federal law, there is no requirement that lead-containing children’s products that meet the federal standards bear a lead-content warning.

The Illinois Attorney General and Legislature have taken the position that the State’s lead warning requirement is not preempted by federal law because it imposes a labeling requirement, as opposed to a lead content limit like that imposed by the CPSIA. Despite state confidence, a careful review of legislative history and court interpretation of key CPSIA and FHSA provisions, including those provisions relating to preemption, places the law in ambiguous legal territory. Given the regulatory burden the Illinois Law places on manufacturers and importers, I suspect the preemption question is likely to be settled in court at some point.

In a recent article, Manufacturing Jewelers & Suppliers of America considered the impact of the Illinois Lead Law on manufacturers of children’s jewelry and assessed the likelihood of federal preemption. The MJSA article also contains helpful links to regulatory guidance for manufacturers of jewelry.