In response to mounting opposition, the U.S. Consumer Product Safety Commission (“Commission”) recently lessened the impact of the new lead and phthalate limits for certain children’s products. This alert provides a summary of the recent developments.

Compliance with the New Lead and Phthalate Limits for Children’s Products is Required Now for Both Existing Inventory and New Products

Effective February 10, 2009, Section 101 of the Consumer Product Safety Improvement Act (“CPSIA”) mandates that consumer products intended for children 12 and younger cannot contain more than 600 parts per million (ppm) of lead in any accessible part. A component part is deemed not accessible if it is sealed or cased and does not become physically exposed through reasonably foreseeable use and abuse. These new lead limits apply to all existing products as of February 10 regardless of their manufacture date and, therefore, include existing inventory.

Also effective February 10, 2009, Section 108 of the CPSIA mandates that children’s toys and child care articles cannot contain more than 0.1% of six phthalates (DEHP, DBP, BBP, DINP, DIDP, and DnOP). Although the Commission initially stated otherwise, the Commission now indicates it will abide by a recent court decision ruling that the new phthalate prohibition applies retroactively to products in inventory.

Manufacturers, Importers and Distributors of “Natural” Children’s Products and Children’s Books May be Protected from Penalties

On February 6, 2009, the Commission announced that it will not impose penalties for making, importing, distributing, or selling:

  • A children’s product to the extent that it is made of certain natural materials (listed by the Commission) including wood, cotton, wool, and certain metals or alloys which are recognized as rarely, if ever, containing lead.
  • An ordinary children’s book printed after 1985.
  • A dyed or undyed textile (excluding leather, vinyl, and PVC) and non-metallic thread and trim used in children’s apparel and other fabric products.

If importers, manufacturers, or sellers have actual knowledge, however, that one of the children’s products listed above exceeds the 600 ppm lead limit and continue to make, import, distribute, or sell such a product, they will not be immune from prosecution by the Commission.

Certain Electronic Products Also Granted Relief under Clarification of Lead Standard

The Commission also issued an interim final rule establishing alternative lead limits for certain electronic devices. As a result of unique properties for lead, the Commission determined that “it is not technologically feasible for certain components in electronic devices to meet the lead content limits under the CPSIA because the presence of the lead is necessary for proper functioning of certain component parts in electronic devices and substitution of the lead is not yet technologically feasible.” Therefore, the Commission has granted the following exemptions for lead used in certain components parts of children’s electronic devices:

  1. Lead blended into the glass of cathode ray tubes, electronic components, and fluorescent tubes
  1. Lead used as an alloying element in steel. The maximum amount of lead shall be less than 0.35% by weight (3500 ppm).
  1. Lead used in the manufacture of aluminum. The maximum amount of lead shall be less than 0.4% by weight (4000 ppm).
  1. Lead used in copper-based alloys. The maximum amount of lead shall be less than 4% by weight (40,000 ppm).
  1. Lead used in lead-bronze bearing shells and bushings.
  1. Lead used in compliant pin connector systems.
  1. Lead used in optical and filter glass.
  1. 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.
  1. Lead oxide in the glass envelope of Black Light Blue (BLB) lamps.

CPSC Delays for One Year The Certification Requirements for Certain Children’s Products – But Compliance with Lead and Phthalate Limits Still Required

Under the CPSIA’s new certification requirements, every domestic manufacturer or importer of a children’s product must prepare a General Conformity Certificate indicating compliance with the new phthalate and lead limits and other applicable standards, rules, or bans administered by the Commission. The Commission has granted a one year stay of this certification requirement for certain children’s products, although conformance with the standards is still required. Unaffected by the Commission’s stay of certification requirements are the following:

  • Third-party testing and certification of certain children’s products subject to the ban on lead in paint and other surface coatings effective for products made after December 21, 2008;
  • Third-party testing and certification of certain children’s products subject to the standards for full-size and non full-size cribs and pacifiers effective for products made after January 20, 2009;
  • Third-party testing and certification of certain children’s products subject to the ban on small parts effective for products made after February 15, 2009; and
  • Third-party testing and certification of certain children’s products subject to the limits on lead content of metal components of children’s jewelry effective for products made after March 23, 2009.
  • Certification requirements applicable to ATV’s manufactured after April 13, 2009.
  • Pre-CPSIA testing and certification requirements, including for: automatic residential garage door openers, bike helmets, candles with metal core wicks, lawnmowers, lighters, mattresses, and swimming pool slides; and
  • Pool drain cover requirements of the Virginia Graeme Baker Pool & Spa Safety Act.