Lead Standards for Children's Products Challenge CPSC

The Consumer Product Safety Commission (CPSC) is struggling to interpret and enforce standards intended to limit children's exposure to lead, the agency's commissioners reported to Congress Jan. 15.

CPSC has been enforcing new general lead standards for the content of children's products for nearly one year, and a standard for lead in paint and coatings for nearly six months. Those standards were mandated by the Consumer Product Safety Improvement Act (CPSIA) – a sweeping bill [1] signed into law Aug. 14, 2008 – which gave CPSC a host of new powers and responsibilities. The law set strict standards to protect children from exposure to lead, a neurotoxin that impairs brain development and leads to IQ loss, and gives the CPSC little leeway to deviate from the letter of the law.

Echoing concerns voiced by manufacturers and retailers, CPSC's Jan. 15 report [2] identifies several problems with the enforcement of the lead standards. CPSC believes the scope of the lead limits, which cover all children's products, is too broad. The report complains that everything from bicycle frames to zipper pulls are subject to the limits. CPSC is asking Congress to give it more flexibility to exempt certain products from the ban.

CPSC already has the authority to exempt products but has not yet exercised it: "[N]o exemption has been granted by the Commission to date because in each instance the manufacturer admitted that 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," the report says.

Additionally, the report says the retroactive application of the lead limits has put CPSC in a situation where it is regulating thrift store and used bookstore inventories. The report says regulators have focused on education, not punitive enforcement.

CPSC's February 2009 "Statement of Commission Enforcement Policy on Section 101 Lead Limits [3]" carves out certain classes of products, including books printed after 1985, that the commission believes are unlikely to contain lead in excess of federal standards. (Section 101 refers to the section of the CPSIA limiting lead content.) CPSC will forego enforcement of lead standards for these products unless firms or persons "had actual knowledge" that a product violated the standard or unless they continue to sell such products after being notified by CPSC.

The report also relays firms' complaints that the costs of third-party testing and accreditation are too high. Under the CPSIA, children's products must be tested by CPSC-approved laboratories and certified as compliant with the lead standards.

CPSC has taken two actions to limit the number of products currently subject to third-party testing. First, CPSC developed a list of products which, "by their nature, will never exceed the lead content limits" and are therefore exempt. CPSC mentions cotton and wool as examples. Second, CPSC announced that firms would not have to test for the general lead content standard for children's products, except jewelry, until Feb. 10, 2011. Testing for lead paint and testing of children's jewelry is still required. CPSC detailed its third-party testing requirements in a Dec. 28, 2009, Federal Register notice [4].

CPSC staff has been cracking down on children's products contaminated with lead paint, the report says. CPSC identified 117 violations in FY 2009 using X-ray technology. "The vast majority of these violations were found by CPSC staff screening children's products at the ports," according to the report.

The CPSIA lowered the standard for lead in paint to 90 ppm (parts per million), from 600 ppm. The report says most of the 117 violations were detected before the new 90 ppm limit took effect on Aug. 14, 2008.

The CPSIA set for the first time a separate lead standard for the content of children's products. The law set a limit of 600 ppm to take effect in February 2009. The law ratcheted the limit down to 300 ppm beginning Aug. 14, 2009, one year after the CPSIA was signed into law. Although CPSC has delayed the third-party testing requirement, it is still illegal to sell, distribute, or import products in violation of the lead content standard. CPSC will again tighten the standard, down to 100 ppm, in August 2011.

The CPSIA was passed in response to a rash of toy recalls in 2007. The recalls brought to light CPSC's inability to protect children from lead-contaminated toys: the commission enforced no limit on lead content nor could it pull contaminated products from store shelves. Eighty-three senators and 424 House members voted in favor of the bill, and President George W. Bush signed it into law.

Complaints from manufacturers and retailers – and from the CPSC itself – are building momentum behind possible alteration of the law. Rep. Henry Waxman (D-CA), chair of the powerful House Energy and Commerce Committee, is considering a legislative amendment that would give CPSC more flexibility, the Wall Street Journal reported [5] in December.

In a statement [6] accompanying the Jan. 15 report, CPSC Commissioner Robert Adler further discussed the challenges of enforcing the CPSIA's lead limits. "I hope that Congress will consider these concerns in any modifications it makes to section 101(b)," Adler said. "Doing so, however, should not take precedence over a demonstrable health risk to children."