CPSC Assesses Its FY 2009 Enforcement of CPSIA Lead Content and Paint Limits

This summary focuses on CPSC's assessment of its FY 2009 lead enforcement efforts. (See ITT's Online Archives or 01/19/10 news, 10011905, for BP summary of CPSC's recommended improvements to the CPSIA.)

CPSC Identified 338 Violations of CPSIA Lead Content Limits

In FY 2009, CPSC identified 338 violations relating to the CPSIA lead content limits¹. Most of these violations were based on the 600 ppm limit in effect between February 10, 2009 and August 14, 2009. A few were based on the 300 ppm limit that took effect just six weeks before the end of the fiscal year (on August 14, 2009) or were based on the pre-existing Federal Hazardous Substances Act (FHSA).

Most found at ports with XRF. Most of the lead content violations were identified by screening children's products at the ports using x-ray fluorescence (XRF) technology. In these cases, the violative products were seized and never entered into the U.S. marketplace.

Others found through market surveillance, reports, etc. Other violations were either: (i) reported to CPSC under section 15(b)² of the Consumer Product Safety Act, as revised by CPSIA; (ii) identified as a result of market surveillance (generally at U.S. retail locations); or (iii) brought to CPSC's attention by third parties, including state or local officials.

Six recalls. In addition, in FY 2009, CPSC staff sought and obtained voluntary recalls in six lead-content cases, primarily involving children's jewelry.

CPSC Identified 117 Violations for Lead in Paint

During FY 2009, CPSC identified 117 violations of the lead-in-paint limits. Most of these violations were based on the pre-CPSIA (600 ppm) limit, which was in effect until August 13, 2009, just six weeks before the end of the fiscal year.

Majority found at ports w. XRF. The vast majority of these violations were found by CPSC staff screening children's products at the ports using XRF technology. These products were successfully prevented from entering U.S. commerce.

Others reported to CPSC. A few violations were reported to the Commission under section 15(b)².

25 recalls. In FY 2009, CSPC staff sought and obtained voluntary recalls for lead-in-paint violations in 25 cases. (This does not count recalls announced in FY 2009 that resulted from samples collected in FY 2008.)

CPSC Enforcement Issues Regarding CPSIA Lead Content

With regard to enforcement of the CPSIA lead content limits for children's products in 2009, CPSC confronted a number of enforcement issues, including:

Broad scope. CPSC faced enforcement issues as the lead content provisions apply to all "children's products" intended for children 12 and younger and many such products can obtain lead above the limits. Though CPSC utilized the exclusions permitted under section 101(b) of the CPSIA to provide exemptions for inaccessible components and for certain components of electronics devices³; determined that certain products were not intended or designed primarily for children (e.g. ball point pens⁴); and determined that a variety of materials inherently meet the lead content limits and therefore do not need testing/certification⁵, some products still presented issues.

Inability to grant exclusions. The CPSIA also authorizes CPSC to exclude a specific product or material from the lead content limits if it determines 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." While a number of entities applied for such exclusions, CPSC was not able to grant any because in each instance a small amount of lead was present in the product that could be handled by the child, however infrequently, leading to possible ingestion of lead.

Retroactivity. The CPSIA makes it unlawful to sell products that exceed the lead content limits after the effective date, regardless of when the products were manufactured. This retroactive application of the law to products already in distribution created substantial problems for manufacturers and retailers with large inventories of children's products, and CPSC believes similar problems will occur in the future whenever the lead limits are lowered.

Cost of testing/certification. According to CPSC, many firms have complained about the costs of third-party testing to demonstrate compliance with the lead content limits. CPSC states it has taken steps to reduce unnecessary testing/certification costs without undercutting the safety benefits of third-party testing such as: (i) adopting an interim enforcement policy that allows manufacturers to certify compliance with lead content and lead paint limits based on testing of individual components; and (ii) staying its enforcement of the requirement to certify children's products for compliance with the lead content limits until February 10, 2011.

Fewer Enforcement Issues with Lead Paint

In the few months since the stricter lead-in paint limits took effect on August 14, 2009, CPSC has not seen the same implementation and enforcement issues as it has with the lead content limit reductions. However, the CPSC staff states that retroactivity issues are applicable in both instances.

(Congress' request for this report was included in the Joint Explanatory Statement of the fiscal year 2010 Consolidated Appropriations Act, funding CPSC and other agencies. See ITT's Online Archives or 12/16/09 news, 09121610, for BP summary.)

¹The CPSIA imposes progressive limits on lead content in consumer products designed or intended primarily for children 12 and under such that: (i) on February 10, 2009, children's products with more than 600 ppm of total lead content by weight in any accessible part became banned hazardous substances; (ii) on August 14, 2009, the allowable lead content limit in such products decreased to 300 ppm; and (iii) on August 14, 2011, if determined feasible by CPSC, the limit will decrease to 100 ppm.

²Section 15(b) requires every manufacturer of a consumer product or other product or substance over which CPSC has jurisdiction to inform CPSC if a product fails to comply with an applicable consumer product safety rule, contains a defect which could create a substantial product hazard, etc.

³In August 2009, CPSC issued a final rule on children's product components considered inaccessible for CPSIA lead content purposes. In January 2010, CPSC issued a final rule finalizing its February 2009 interim final rule which exempted certain components of children's electronic devices from the lead content limits. (See ITT's Online Archives or 08/07/09 and 01/21/10 news, 09080725 and 10012105, for BP summaries.)

⁴In June 2009, the Commissioners were not able to reach agreement on a request for a CPSIA lead content exclusion for ball point pen tips but did agree that the vast majority of such pens are not even subject to the lead content limits as they do not meet the definition of children's products. (See ITT's Online Archives or 06/09/09 news, 09060920, for BP summary.)

⁵In August 2009, CPSC issued a final rule which determined that certain materials or products (wood, paper, certain textiles, inks, etc) do not exceed the CPSIA lead content limits and are therefore not subject to CPSIA testing and certification for lead content. (See ITT's Online Archives or 08/21/09 news, 09082110, for BP summary.)

CPSC report to Congress, with links to individual Commissioner responses (dated 01/15/10) available at http://www.cpsc.gov/about/cpsia/cpsiareport01152010.pdf