U.S. Consumer Product Safety Commission Reports Difficulties Enforcing Reduced Lead Level Limits in Children’s Toys

The Consumer Product Safety Improvement Act of 2008(CPSIA) directed the U.S. Consumer Product Safety Commission (CPSC) to assess and report to the House and Senate enforcement efforts, difficulties encountered, as well as recommendations for improvement to the lower numerical level limits for lead content of childrens products the CPSIA established.

The CPSC issued its report on January 15, 2010, noting that it has continued to find excessive lead levels in childrens toys and products. Most of the lead content violations were identified by screening childrens products at ports using x-ray fluorescence (XRF) technology. In these cases, the violative products were seized and never entered into the U.S. marketplace. During fiscal year 2009, CPSC staff also sought and obtained voluntary recalls in six lead-content cases, primarily involving childrens jewelry. Just last week,Target Corp. announced that it is pulling its Valentine’s Day “Message Bears” from store shelves after California’s attorney general raised concerns that the toys have illegal levels of lead.

The products were identified as a pink stuffed bear with “XOXO” across its chest and a brown stuffed bear with “I Love U” across its chest, with the word “love” represented by a heart. The bears were made in China. The lower leadlimits, which took effect on February 10, 2009, was 600 parts per million (ppm) for any accessible part, reduced to 300 ppm effective August 14, 2009. The stricter limit for lead in paint and similar surface coatings, originally set by the Commission in 1978, was 600 ppm, reduced to 90 ppm, effective August 14, 2009. This limit applies not only to paint sold to consumers as such, but also to paint on toys and other articles intended for children and to certain household furniture items.

The main issues in the CPSC’s report were broken down into three distinct categories in the report: (1) the scope of the products covered and requests for exclusion; (2) the retroactive application of the law to products already in distribution for the use and enjoyment of children; and (3) the cost of testing and certifying products for lead content. The section of the report concerning the scope of the products covered identified a multitude of childrens products containing lead over the 300 ppm limit.

These childrens products include vinyl (examples include the vinyl seats of some youth-sized ATVs and the inflated vinyl letters on the bears Target just recalled that contain well over federal limits for lead in products for children under the age of 12), metals (for example, the metal frames of bicycles and ATVs, screws and hinges on childrens products, the metal stay used to clamp the end of a zipper on a childrens garment, zipper pulls on childrens items ranging from childrens clothing to a childrens golf bag), brass (ranging from the brass tip of a ball point pen to the brass hinges on furniture made for a childs room to the trumpet the child plays in the school band, and pearlized buttons that are on many items of childrens clothing.

To deal with the scope of the problem, the CPSC took actions including considering as childrens products opinion products only if intended or designed primarily for children 12 or younger, such as approving an opinion that ball point pens were general use items not intended exclusively for children unless something about the pen made it uniquely appealing to children twelve and under, in which case the law would apply. The Commission also utilized the exclusions permitted under the CPSIA to provide exemptions from the lead limits for products where the component containing lead was inaccessible and for electronics devices that utilized materials for conductivity, such as aluminum, that contain lead.

Another approach attempted was to exclude a specific product or material from the lead content limits if determined that lead in such product or material will not result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child. This approach was unsuccessful because an amount of lead was present in the product that could be handled by the child, however infrequently, leading to hand to mouth ingestion of lead. Among the types of products refused exemptions are (1) youth all-terrain vehicles (ATVs) and other youth motorized recreational vehicles; (2) childrens bicycles; (3) lead crystals or rhinestones used on childrens apparel or jewelry; and (4) brass materials used in toys.

The section of the report concerning the issue of the retroactive application of the lower lead limits was primarily concerned about used and older books, due to the high lead levels present in the ink of books printed in the 1970s and earlier. In February 2009, the Commission announced that it would not seek penalties for sale or distribution of childrens books printed after 1985 unless the seller or distributor had actual knowledge that the books lead content exceeded 600 ppm. Many small manufacturers and crafters have complained about the costs of third-party testing to demonstrate compliance with the lower lead limits.

The report contended that the Commission has taken steps to reduce unnecessary testing and certification costs without undercutting the safety benefits of third-party testing. First, it has announced determinations with regard to a wide variety of materials whose lead content is inherently below applicable lead limits, in which instances those parts do not need to be tested to show compliance with lead limits. Second, the Commission has adopted an interim enforcement policy that allows manufacturers to certify compliance with lead content and lead paint limits based on testing of individual components. Third, the Commission has stayed enforcement of the requirement to certify compliance of all childrens products with the lower lead limits until February 10, 2011.

The lawyers at Levine & Slavit have decades of experience handling personal injury claims including those involving dangerous and defective products . For 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. If you or someone close to you has been injured by a product that was not properly manufactured, designed or labeled, contact the personal injury lawyers at Levine & Slavit for their help. To learn more, watch our videos.

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