The Consumer Product Safety Commission (CPSC) has been actively providing new guidance regarding the Consumer Product Safety Improvement Act of 2008 (CPSIA). With several upcoming deadlines and the appointment of a third commissioner, giving the CPSC a full commission for the first time since 2006, the CPSC has been moving quickly to create new regulatory framework.

Tracking Labels

All children's products manufactured on or after August 14, 2009, and their packaging, will require permanent tracking labels containing the product's date and location of manufacture, as well as other information necessary to enable manufacturers and consumers to track the product's source. On July 20, 2009, the CPSC issued a statement clarifying the CPSC's interpretation of the tracking label requirements and providing some preliminary insight into its enforcement plans. Initially, the CPSC will not seek to penalize manufacturers, importers and/or private labelers for noncompliance, provided that the responsible party can show it has made "good faith" efforts to educate itself and to comply with tracking label requirements.

In addition, the CPSC allowed for the use of "coded" identification in certain circumstances and indicated that labeling is required on both a product and its packaging, except in certain limited circumstances where labeling on the package only will suffice. Based on its recent guidance, the CPSC appears likely to refine its enforcement policy as manufacturers adapt to the new labeling requirements.

Lead Content and Lead Paint

After August 14, 2009, the lead content limit for children's products will be lowered to 300 ppm of lead and the lead limit for paint or other surface coatings will be lowered to 90 ppm of lead.

The lead content limits apply to all portions of a children's product that are accessible to a child, but do not apply to inaccessible portions. In recent guidance, the Commission defined an "inaccessible part" as a part that 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. Paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child."

Accessibility will be determined by the use of (1) accessibility probe testing, and (2) age-specific use and abuse testing.

Click here for specific guidance on accessibility testing.

Lead Content Accessibility Testing

The following testing will be required to determine the accessibility or inaccessibility of a component part:

  • Accessibility Probe Testing – Accessibility will be determined through the use of the accessibility probes specified for sharp points or edges under the Commission's regulations at 16 CFR 1500.48-1500.49. A lead-containing component part is accessible if it contacts a specified segment of the accessibility probe. A lead-containing component part is inaccessible if it does not contact the specified segment of the accessibility probe.
  • Use and Abuse Testing – The following guidelines will be used to evaluate accessibility of lead-containing component parts of a children’s product as a result of normal and reasonably foreseeable use and abuse of the product:
  • Products intended for children 18 months of age or less – use and abuse tests set forth in 16 CFR 1500.51 (excluding the bite test);
  • Products intended for children between 18 months and 36 months - use and abuse tests set forth in 16 CFR 1500.52 (excluding the bite test); and,
  • Products intended for children between 36 months and 12 years – use and abuse tests set forth in 1500.53 (excluding the bite test); however, the intentional disassembly or destruction of products by children older than age 8 will not be considered in evaluating products for accessibility of lead-containing components.