On August 7, 2009, CPSC issued a final rule providing guidance as to which component parts of a children’s product are “inaccessible” and therefore not subject to the CPSIA’s lead content limits. As discussed below, the rule affirms CPSC’s position in the proposed rule that inaccessible components are those that a child cannot touch and explains how the standard will be applied.
Background
The Consumer Product Safety Improvement Act (CPSIA) set lead content limits applicable to “children’s products,” i.e. , those consumer products designed and intended primarily for children 12 years of age and younger. As of August 14, 2009, children’s products cannot contain more than 300 ppm of lead. And, on August 14, 2011, the lead content limit will be decreased further to 100 ppm, unless CPSC determines that the 100 ppm level is not technologically feasible.
CPSIA Section 101(b)(2) provided that the lead content limits shall not apply to any component part of a children’s product that is “not accessible to a child through normal and reasonably foreseeable use and abuse,” and required CPSC to provide guidance on what product components , or classes of components, will be considered inaccessible. The section further specified that a component part is not accessible “if such component part 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 . . . includ[ing] swallowing, mouthing, breaking, or other children’s activities, and the aging of the product.” Finally, the section provided that “paint, coatings, or electroplating may not be considered to be a barrier” rendering lead in the substrate inaccessible.
CPSC published a proposed interpretative rule on inaccessibility in the Federal Register on January 15, 2009 (74 FR 2439), and published the final rule on August 7, 2009 (74 FR 39535).
The Commission’s Rationale and Response to Comments
The Commission explained its rulemaking determinations as follows:
- As in the proposed rule, CPSC construed “accessibility” as a child’s ability to come physically into contact with the lead-containing component part , as simulated through use of accessibility probes defined by existing regulation. The Commission declined to broaden its view of accessibility to include actions such as leaching. The Commission also declined to narrow its view of accessibility by considering whether a child would actually touch the part through foreseeable use or abuse, or by considering whether a component part is ingestible or mouthable, as opposed to merely touchable. The Commission reasoned that the statute mandates consideration of whether a part becomes “physically exposed” through foreseeable use and abuse, including “swallowing, mouthing, breaking, or other children’s activities.” Such “other children’s activities” might reasonably include touching, grasping, and handling. For example, according to CPSC, a child riding an all-terrain vehicle might touch a lead-containing brake or clutch lever, and might then wipe her mouth or face with her hands, leading to lead absorption where the lead-containing component was not itself mouthed. Accordingly, the final rule construes accessibility to be physical contact with lead-containing component parts, and provides for the use of accessibility probes as an objective means to evaluate accessibility.
- CPSC acknowledged that, “in general,” inaccessible component parts will not have to comply with the lead content limits or be tested and certified as to lead content. The Commission notes that -- presumably because of a stay of enforcement issued earlier this year with respect to certain third party testing and certification requirements -- manufacturers are not “currently” required to provide third-party testing to demonstrate inaccessibility. However, the Commission intends to address certification requirements in a separate rulemaking.
- CPSC agreed that use of accessibility probes is unnecessary where products are effectively sealed so that there is no point of entry to any internal parts, and where such internal parts would not become accessible after use and abuse. However, the Commission clarified that the enclosing material must still be tested, unless it is a material that the Commission has specifically determined falls below the lead content limits.
- CPSC determined that accessibility probes described in current regulations, which were originally designed for younger children, are appropriate for all children’s products up to age 12. The Commission reasoned that older children have larger fingers, limiting access to gaps that might be accessible to younger children whose fingers are simulated by the probe.
- CPSC determined that the use and abuse testing described in current regulations, originally designed for younger children, is appropriate for products used by children up to age 12. The Commission noted that although older children have advanced motor skills and agility that might lead to greater abuse of a product, they also have advanced cognitive skills allowing them to care properly for their belongings. Nevertheless, the Commission ruled explicitly that, when evaluating accessibility, it will not consider the intentional disassembly or destruction of products by children older than 8 years of age.
- CPSC confirmed that the “bite test” described in current regulations is not currently used in use and abuse testing as a result of a court case, so it will not be applied in evaluating accessibility.
- CPSC also addressed whether fabrics that cover or encase a lead-containing component render the component inaccessible. The Commission determined that such fabrics passing use and abuse tests provide an adequate barrier against touching of the lead-containing component. However, where a fabric-covered product or component is mouthed or swallowed, leaching of lead may occur through the fabric. Thus, the Commission determined to evaluate the accessibility of a fabric-covered component through the same method used in the CPSIA section regarding phthalates: If the product or part in one dimension is smaller than 5 centimeters, it is considered able to be placed in the mouth, and therefore accessible.
- Because of the wide range of products subject to the lead content requirements, the Commission declined to address how product aging and “wear and tear” might impact accessibility, but noted that the Commission may address this issue in the future if necessary.
- CPSC declined to address whether there is any lead in CDs or DVDs, and indicated that product-specific requests should be made under the rule on procedures and requirements for a Commission determination or exclusion (74 FR 10475 (March 11, 2009)). However, CPSC did note that the acrylic polymer layers of a CD or DVD are not subject to the lead paint standard because those layers are not a “coating,” and noted further that “[i]f the internal metallic layer of a disk is not accessible to a child, testing and certification would not be required” to demonstrate compliance with the lead content standard.
Final Rule (16 C.F.R. § 1500.87)
In summary, the final rule provides the following guidance on accessibility in addition to that specified by CPSIA Section 101(b)(2):
- The accessibility probes specified for sharp points or edges under the Commission’s regulations at 16 CFR § 1500.48-1500.49 will be used to assess the accessibility of lead-containing component parts of a children's product. A lead-containing component part would be considered accessible if it can be contacted by any portion of the specified segment of the accessibility probe. A lead-containing component part will be considered inaccessible if it cannot be contacted by any portion of the specified segment of the accessibility probe.
- The use and abuse tests set forth in existing Commission regulations 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, as follows -- Products intended for children 18 months of age or less: 16 CFR § 1500.50 and 1500.51 (excluding the bite test of Sec. 1500.51(c)); Products intended for children 19 to 36 months of age: 16 CFR § 1500.50 and 1500.52 (excluding the bite test of Sec. 1500.52(c)); Products intended for children 37 to 96 months of age: 16 CFR § 1500.50 and 1500.53 (excluding the bite test of Sec. 1500.53(c)); Products intended for children 97 months through 12 years of age: 16 CFR § 1500.50 and 1500.53 (excluding the bite test of Sec. 1500.53(c)), intended for children aged 37-96 months.
- A children's product that is or contains a lead-containing part which is enclosed, encased, or covered by fabric and passes the appropriate use and abuse tests on such covers, is inaccessible to a child unless the product or part of the product in one dimension is smaller than 5 centimeters.
- The intentional disassembly or destruction of products by children older than age 8 years by means or knowledge not generally available to younger children, including use of tools, will not be considered in evaluating products for accessibility of lead-containing components.
