Implementation of the Consumer Product Safety Improvement Act of 2008 (CPSIA) has caused enormous problems for manufacturers, retailers, resellers and consumers, among others. In acknowledgement of these difficulties, on January 15, 2010, the Consumer Product Safety Commission (the Commission) sent recommendations to Congress for improving the CPSIA. Its bipartisan report delineated the consensus recommendations of the Commission’s members in several areas where application and enforcement of the CPSIA can be improved through congressional modification of the Act.
In its report, the Commission sought to address several problem areas, including three described here:
- The Scope of Lead Limits
The first area of concern is the scope of children’s products covered by the CPSIA’s lead limits and the Commission’s inability under the law to provide common sense solutions. The CPSIA, as written, has a very broad definition of what is regulated as a “children’s product.” Combined with very strict lead content limits and severely restricted provisions for exclusions, the Commission recognized that certain children’s items – books, bicycles, all-terrain vehicles, clothing with specific types of buttons, zippers or rhinestones – as well as ball point pens and brass band instruments, could all be technically non-complaint and thus banned by the CPSIA. The Commission has taken a variety of approaches to deal with the problem to date, including narrowing the definition of children’s products, utilizing exclusions permitted under the CPSIA to provide exemptions for electronic devices or products with inaccessible lead components, and considering authorizing exclusions for products that will not result in the absorption of any lead into the human body. But the Commission says that even using all of these existing options, the CPSIA as written is too inflexible to reasonably enforce.
- Retroactive Application of Lead Limits
The retroactive application of the law to products already in distribution is another problem area. The Commission’s report acknowledges that the CPSIA bars the sale of children’s products that exceed the lead limits at the time they are sold, even though the products did not exceed the limits when manufactured. It says that retroactive application of the CPSIA has caused “substantial problems for manufacturers and retailers with large inventories that are now retroactively illegal to sell.” In addition, second-hand stores and resellers of used products have had to halt the sale of numerous products, or risk violating the law. Used-book stores and libraries are still other entities that are adversely affected: older books (pre 1985) were printed with inks that have lead in excess of current restricted CPSIA limits, and could be in violation of the law.
- Testing and Certification Costs
Another problem is that the costs of third-party testing to certify products for lead content are significant (in many cases, the cost of testing for regulatory compliance exceeds the cost of the product). The Commission noted numerous complaints about these costs, and discussed steps it has taken to reduce unnecessary testing and certification costs without undercutting safety.
Following its examination of CPSIA problem areas, the Commission proceeded to discuss its “Recommendations for Improvement to the Statute.” The report discussed four separate areas:
- Greater flexibility in granting exclusions from CPSIA lead limits. The Commission requested greater flexibility in granting exclusions from lead limits under the CPSIA. Although it did not reach a consensus on a specific approach for improvements, the Commission was unanimous in its request for additional flexibility to grant exclusions from lead content limits in selected products.
- Exclusions for children’s books. Ordinary children’s books printed before 1985 may contain ink with lead content above the strict limits of the CPSIA; as a result, libraries could be forced to remove pre-1985 children’s books from their shelves. The report recommends that Congress consider excluding ordinary children’s books and other children’s “paper-based printed materials” from the lead content limits.
- Retroactive application of 100 PPM lead content limits. Provisions of the CPSIA lowered the lead content limit in children’s products to 300 parts per million (ppm) and will lower it further to 100 ppm unless the Commission determines the 100 ppm limit is not technologically feasible. The report recognizes the “market disruption” that may occur if the lower lead limits are applied retroactively. The Commission also notes the problems that resellers and manufacturers will face if they have to comply retroactively with the 100 ppm limit. Resellers find it difficult to test for lead limits in the products they sell, but resellers nevertheless are obligated to comply with CPSIA lead content limits. Manufacturers face uncertainty as to what lead limit the Commission will enforce as technologically feasible. The report recommends that a prospective application of the 100 ppm limit be allowed. The 100 ppm limit would then only apply to products manufactured after the date the new limit becomes effective.
- Small manufacturers’ and crafters’ concerns. In its final section of the report, the Commission discussed difficulties faced by small manufacturers and crafters, including testing and certification burdens. The Commission noted that it would be looking at “volume of production, channels of distribution and other distinctions” as “possible ways to structure the testing and certification requirements.” It did not make specific recommendations, however.
The Commission submitted its report to Congress in response to a direction from the Statement of Managers for the FY 2010 Consolidated Appropriations Act. The Statement of Managers itself recognized a number of problems with the implementation of the CPSIA. This is significant because it is the first official recognition by Congress of the CPSIA’s inherent complications and difficulties. With the submission of the report and recommendations to Congress, the Commission returns responsibility for fixing the CPSIA to the branch of government that created the law.