On Friday, January 9, the U.S. Consumer Product Safety Commission (CPSC) issued new rules on four of the most pressing issues facing consumer product manufacturers regarding implementation of the Consumer Product Safety Improvement Act (CPSIA). Each rule is effective immediately. In addition, CPSC is accepting written comments on each of these rules for the next 30 days. The key points of those rules follow.

Inaccessibility of Electronic Parts in Children's Products

The CPSIA specifically provides that components of children's products not accessible to children will not be subject to the lead substrate content limits imposed by the Act. CPSC's long-awaited interpretive rule defining "accessibility" provides the following guidance:

  • A component part will be deemed inaccessible if it is not physically exposed due to enclosure in a sealed covering or casing that prevents a child from touching, swallowing or mouthing the component.
  • As required by statute, paint, coatings or electroplating do not make lead in the substrate of a component inaccessible. In addition, zippers, snaps, unsealed or unsecured compartments will be considered accessible. The Commission is seeking comment on whether a fabric enclosure should render a product inaccessible.
  • Accessibility of a component will be determined by use of the accessibility probes already specified for use in determining sharp points or edges under 16 CFR 1500.48-.49. In addition, lead-containing components may not be made accessible by the use and abuse tests described at 16 CFR 1500.50-.53. The specific tests specified for children 37-96 months will be used for children up to 12 years of age for accessibility purposes.
  • Intentional disassembly or destruction by a child over 8 years by means that younger children could not know or attempt will not be considered in evaluating accessibility.

Exemptions for Certain Electronic Devices

The CPSIA also requires CPSC to conduct a rulemaking to determine what, if any, electronic devices, including components, should be exempted from the lead substrate requirements based on the technological infeasibility of compliance. Staff's proposed rule would provide such exemptions to:

  • Products and components that are exempted from the European Union's Restriction of Use of Certain Hazardous Substances Directive (RoHS). However, the exemption does not apply to crystal lead or other decorative or non-functional components that might otherwise be exempt under RoHS. A list of RoHS exemptions can be found here.
  • The rule also exempts components of removable or replaceable component devices, such as battery packs or light bulbs, that are inaccessible when properly installed or that are subject to another exemption. Thus, spare or replacement batteries are exempt so long as they are inaccessible when incorporated into the product.

Other Developments

  • Materials that are Inherently Lead Free. CPSC has also issued proposed rules on a small number of products or materials (e.g., gemstones, wood, natural fibers and materials, surgical steel and precious metals) that are not required to provide certifications of conformity because such they inherently do not contain lead that exceeds the mandatory levels. Comment is sought on other materials that are inherently lead-free that should be exempted from the certification requirement.
  • Procedures for "No Harm" Exemptions. Another proposed rule lays out the procedures for the Commission to determine whether a product or material, or a class thereof, should be exempted because it either (1) does not does not exceed the mandatory lead levels, or (2) exceeds those levels, but does not result in absorption into the body or otherwise impact health or safety. Requests for such determinations must include substantiation and will be subject to notice and comment prior to being granted. The pendency of such a request does not exempt a product from compliance until a decision is made.
  • Books. A recently-issued General Counsel opinion notes the following regarding children's books:
    • "Ordinary" books, i.e., books printed on paper or cardboard that are intended for readers age 12 and under, must comply with the lead substrate requirements imposed by the CPSIA.
    • Such books do not need to comply with the lead paint requirements because printing inks have never been considered a surface coating subject to those requirements.
    • In addition, such books are not subject to the phthalate, or ASTM F963-7 standard unless they qualify as toys. Books intended for play, such as books intended for use in the bathtub or books that have cut-out dolls, would be considered toys and therefore not exempt. Under that interpretation, it would appear the coloring books would also be outside this exemption.

Copies of the rules and additional CPSIA information may be found here.