On April 8, 2009, CPSC announced that the commissioners have voted 1-1 on both (i) the petition by the Writing Instrument Manufacturing Association (WIMA) to exempt the tips of children’s ball point pens from the lead substrate ban, and (ii) whether to direct the CPSC staff to draft a stay of enforcement of the ban as to pen tips (vote record and Commissioners’ signing statements available here). The effect of the split votes is to deny the petition for an exemption and to forgo a stay of enforcement. Thus ball point pens that are “children's products” (i.e., those intended “primarily” for children 12 years of age and under) remain subject to the lead substrate ban. However, in their signing statements, both Commissioners state their agreement that most ball point pens are not children's products, and thus are outside the scope of the ban.
In announcing the result of the ballot vote, CPSC also published a letter from CPSC General Counsel Cheryl Falvey to WIMA regarding WIMA’s petition. (The Commission approved the contents of the letter an d directed that Falvey send it to WIMA.) Like the Commissioners, Ms. Falvey emphasizes that general use pens -- even those sold to school systems or to retailers and marketed as a back to school item -- are not children’s products and thus are not subject to the lead ban. She also states that the majority of novelty pens are not considered to be “primarily” intended for children, and thus they too would be outside the scope of the lead substrate ban. Further, she notes that even a pen with a cartoon character “may have mass appeal and not be intended primarily for children” if the pen’s price point and marketing indicate that the pen is intended for both adults and children. Likewise, the letter states that pens with a puzzle feature that are “marketed to executives” are “likely to appeal to adults and children alike.”
While this information helps establish that most pens are outside the scope of the lead substrate ban, it appears that in some instances a case by case analysis may still be required to determine whether a particular pen is intended “primarily” for children 12 years of age and under, considering factors such as (a) any marketing and advertising for the pen, (b) price, and (c) the nature of any logos, attachments or other markings or features associated with the pen.
