Safety Law Confounds

IN RESPONSE to near-universal industry concern over new limits on lead and phthalates in children's products, the Consumer Product Safety Commission (CPSC) has approved a one-year stay of the testing and certification requirements so the agency can take more time to provide guidance on how the testing is to be conducted.

The new limits are in the Consumer Protection Safety Improvement Act (CPSIA), which goes into effect this week. Approved by large majorities in the House and Senate last August, the law nominally aims to protect children from exposure to harmful levels of lead and phthalates in products (C&EN, Aug. 4, 2008, page 8), but the result is having a much broader effect than had been anticipated.

The main concern involves the lead standard. The law puts in place an upper limit for acceptable lead concentrations, a limit that decreases over time. But that's not the source of anxiety. Instead, toy manufacturers and businesses worry about the scope of products covered by the law. According to the legislation, any consumer product intended primarily for use by a child 12 years old or younger must conform to the law. This means that not only will producers of painted toys need to comply, but so will children's book distributors, clothing makers, and thrift stores that resell children's products.

Specifically, when the law goes into effect on Feb. 10, any part of any product for a child 12 years old or younger must not contain lead above 600 ppm. In August, the lead limit drops to 300 ppm. Certification that every component of a covered product is below the new lower limit will then be required. The CPSC extension gives companies some relief from this tight deadline, but it does not address the fundamental problem of having to test every component for lead.

Small producers of children's products—such as all-natural toys and knitted and specialty children's wear—fear they will be forced out of business by the high costs of laboratory tests on all the components of their products. Everything from individual buttons to crayons to bicycle tires will have to be certified as meeting the standard.

Despite the concerns, supporters of the bill in Congress are not likely to change or delay the law. Reps. Joe Barton (R-Texas) and George Radanovich (R-Calif.) requested that the law be delayed and hearings held so the problems could be sorted out. "Many involved in CPSIA's creation were passionate to improve the safety of our children's products, but surely no one expected or wants to drive thousands of home-based and small businesses out of operation," Barton and Radanovich said in a letter to Rep. Henry A. Waxman (D-Calif.), chairman of the House Committee on Energy & Commerce.

Waxman, a major supporter of the new law, recognizes that it has created enormous confusion but believes that the problem is in the implementation, not the intent of the law. In January, he wrote to CPSC affirming that the intent of the law is clear and that it is up to the commission to "act expeditiously to resolve these issues and make this information widely available to the public in a clear and understandable manner."

There are two categories of products, however, that Waxman urged CPSC to exempt from the testing requirement of the law—regular paper children's books and children's apparel made only of fabric. At the same time, the commission voted to publish an Advance Notice of Proposed Rulemaking to relieve producers that use materials inherently free of lead from the certification standard. Although these manufacturers will still be required to meet the lead limits, the delay in testing and certification will give them time to understand what they have to do to comply with the law.

SOME INDUSTRIES are trying to negotiate directly with CPSC for relief. Sellers of secondhand products, such as consignment shops and charitable groups like Goodwill Industries, are afraid they will have to discard all of their children's products because none will have been certified as meeting the lead standard due to the cost of testing. CPSC has made the decision that these stores can continue to sell products without the certification but, at the same time, warned them that they are still liable for criminal and civil penalties if they do sell any product with a component exceeding the lead limit.

The children's book industry has made a major effort to get its products exempted. Allan R. Adler, vice president for legal and government affairs with the Association of American Publishers, tells C&EN that his group was completely blindsided by CPSIA and had no meetings with Congress or CPSC before the law was passed.

"Children's book producers share a global marketplace and have to meet standards from around the world," Adler says. "The industry has worked for years to eliminate lead from ink, and there has never been a problem with paper." He points out that independent testing of children's books printed all over the world find lead levels consistently far below the new law's lowest requirements. The recent extension gives the book publishers more time to make their case.