20 August 2009

Important CPSIA Update: Final Rule

The CPSIA Commission yesterday (19 August 2009) released its Final Rule on lead determinations. This 65-page document includes final determinations on requested exemptions, and the explanations for why each determination was made. Most notable improvements/ exemptions are the following:
  • Textiles in general, both natural and synthetic, have been exempted from mandatory testing. (This does NOT include any after-treatment applications or embellishments, such as screen printing, decals, etc.) Page 31-33
  • Modern ordinary bound books, printed with the CMYK method and meeting several other requirements, have been exempted from testing. (This does NOT include spiral bound either metal or plastic - or novelty books which are or contain plastic, metal or electronic parts, etc.) Page 37-49
  • Precious metals and gems, as well as many semiprecious gems and minerals, are largely exempt from testing. (Once they have been altered, or used in conjunction with a non-exempt process or component, the exemption does not apply.) Pages 4-5, 25-26
  • A wide variety of natural (plant and animal) products, in their unadulterated states, have been exempted from testing. Pages 4-5, 15-16, 35

Some other notable determinations:

  • Material Safety Data Sheets (MSDS) may NOT be used to demonstrate CPSIA compliance of any materials or components used to construct/manufacture children's products, as they do not certify that lead levels are within or below the lawful limits. Page 53-54
  • Component testing of metal, plastic and painted parts - such as zippers, buttons, snaps, etc. - will still be required at this time, although the Commission will revisit the topic for further determinations:
"The Commission intends to address component part testing and the establishment of protocols and standards for ensuring that children's products are tested for compliance with applicable children's products safety rules, as well as products that fall within an exemption, in an upcoming rulemaking." Pages 54-56
  • The Commission will continue to consider requests for exemption that are accompanied by the proper documentation and test data to support the request:
"The list of determinations made in this rule is not exhaustive; the Commission will continue to evaluate other requests on materials or products submitted under the procedures rule, and consider whether to re-evaluate a material if new evidence indicates that a re-evaluation is warranted or the Commission receives data or information demonstrating that a particular material does not and would not contain lead. In such circumstances, the Commission will amend the rule, if appropriate." Page 12

Here is the summary of the Final Rule, copied directly from the document released by the Commission (page 60-64):

J. Conclusion
For the reasons stated above, the Commission amends title 16 of the Code of Federal Regulations as follows:
1. The authority for part 1500 continues to read as follows:

Authority: 15 U.S.C. 1261-1278, 122 Stat. 3016.

2. Add a new §1500.91 to read as follows:

§ 1500.91 Determinations Regarding Lead Content for Certain Materials
or Products under Section 101 of the Consumer Product Safety Improvement Act.

(a) The Consumer Product Safety Improvement Act provides for specific lead limits in children's products. Section 101(a) of the CPSIA provides that by February 10, 2009, products designed or intended primarily for children 12 and younger may not contain more than 600 ppm of lead. After August 14, 2009, products designed or intended primarily for children 12 and younger cannot contain more than 300 ppm of lead. On August 14, 2011, the limit may be further reduced to 100 ppm, unless the Commission determines that it is not technologically feasible to have this lower limit. Paint, coatings or electroplating may not be considered a barrier that would make the lead content of a product inaccessible to a child. Materials used in products intended primarily for children 12 and younger that are treated or coated with paint or similar surface-coating materials that are subject to 16 CFR part 1303, must comply with the requirements for lead paint under section 14(a) of the Consumer Product Safety Act (CPSA), as amended by section 102(a) of the CPSIA.

(b) Section 3 of the CPSIA grants the Commission general rulemaking authority to issue regulations, as necessary, either on its own initiative or upon the request of any interested person, to make a determination that a material or product does not exceed the lead limits as provided under paragraph (a) of this section.

(c) A determination by the Commission under paragraph (b) of this section that a material or product does not contain lead levels that exceed 600 ppm, 300 ppm, or 100 ppm, as applicable, does not relieve the material or product from complying with the applicable lead limit as provided under paragraph (a) of this section if the product or material is changed or altered so that it exceeds the lead content limits.

(d) The following materials do not exceed the lead content limits under section 101(a) of the CPSIA provided that these materials have neither been treated or adulterated with the addition of materials that could result in the addition of lead into the product or material:

(1)Precious gemstones: diamond, ruby, sapphire, emerald

(2) Semiprecious gemstones and other minerals, provided that the mineral or material is not based on lead or lead compounds and is not associated in nature with any mineral based on lead or lead compounds (excluding any mineral that is based on lead or lead compounds including, but not limited to, the following: aragonite, bayldonite, boleite, cerussite, crocoite, galena, linarite, mimetite, phosgenite, vanadinite, and wulfenite)

(3) Natural or cultured pearls.

(4) Wood.

(5) Paper and similar materials made from wood or other cellulosic fiber, including, but not limited to, paperboard, linerboard and medium, and coatings on such paper which become part of the substrate.

(6) CMYK process printing inks (excluding spot colors, other inks that are not used in CMYK process, inks that do not become part of the substrate under 16 CFR part 1303, and inks used in after-treatment applications, including screen prints, transfers, decals, or other prints) .

(7) Textiles (excluding after-treatment applications, including screen prints, transfers, decals, or other prints) consisting of:

(a) Natural fibers (dyed or undyed) including, but not limited to, cotton, kapok, flax, linen, jute, ramie, hemp, kenaf, bamboo, coir, sisal, silk, wool (sheep), alpaca, llama, goat (mohair, cashmere), rabbit (angora), camel, horse, yak, vicuna, qiviut, guanaco;

(b) Manufactured fibers (dyed or undyed) including, but not limited to, rayon, azlon, lyocell, acetate, triacetate, rubber, polyester, olefin, nylon, acrylic, modacrylic, aramid, spandex.

(8) Other plant-derived and animal-derived materials including, but not limited to, animal glue, bee's wax, seeds, nut shells, flowers, bone, sea shell, coral, amber, feathers, fur, leather.

(e) The following metals and alloys do not exceed the lead content limits under section 101(a) of the CPSIA, provided that no lead or lead-containing metal is intentionally added but does not include the non-steel or non-precious metal components of a product, such as solder or base metals in electroplate, clad, or fill applications:

(1) Surgical steel and other stainless steel within the designations of Unified Numbering System, UNS S13800 S66286, not including the stainless steel designated as 303Pb (UNS S30360) .

(2) Precious metals: gold (at least 10 karat); sterling silver (at least 925/1000); platinum; palladium; rhodium; osmium; iridium; ruthenium, titanium.

Please take the time to read the complete Final Rule document here:


Other important CPSIA links:


Of particular interest to Small Businesses, Resellers, Crafters and Charities:

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Editorial comment:

Obviously, CPSIA and its Final Rule are imperfect. The hasty rush to draft and enact what was supposed to have been a protective law has ultimately, and adversely, affected small businesses, charitable organizations, non-profits, and everyday craftspersons, as well as the average American consumer. Hopefully, through continued efforts by concerned citizens and business owners, CPSIA will eventually evolve into a practical, common-sense piece of legislation that will achieve its intended objective without causing further, or continued, harm.

Kudos to the many, many, many dedicated people across the nation who took action by researching, writing letters, attending meetings, blogging and using various other media, to both challenge or hone the law, and inform businesspersons and the public. Your vigilance and perseverance has made a difference. Keep up the good work!


  1. There's something I don't understand about this issue. Why is everyone saying that cottage toy makers must test their products for lead? I'm not seeing that in the rules, and you've quoted them verbatim. What I'm seeing is that there is an upper limit for lead content in these products. Yes, there are consequences if it turns out there is lead in a product you sell, but if you know for a fact there was no lead in the constituent parts, what's the problem?

    Everyone seems to be on this trip that they have to pay for expensive testing, and if that were the actual language of the regulations, then fine, I understand. But as it is quoted by you and others who have blogged on the issue, I'm not seeing that.

    I know it's a huge risk to take to NOT test your products, but if you know for a fact your stuff doesn't have lead in it, and testing items you know to be lead-free would put you out of business... which is the greater risk? The only way you're going to get fined is if someone frames you. That's extremely unlikely to happen and if it did happen, it'd be a risk whether or not you tested.

    Unless I'm missing something or you didn't quote all the pertinent language. That's always possible, nobody's perfect.

  2. Oh, OK, never mind, I see it. I had to go to the CPSIA website. I feel stupid now. >.<

    That said, it seems pretty simple to me--stick with making toys out of natural materials and you should be fine. Which, in my not-so-humble opinion, cottage toy makers should be doing in the first place! It looks to me like people are having a fit because they can't play dumb about the lead content of their toys anymore. As a parent I find that profoundly insulting. It's not worth the expense to you to ensure that my child won't get lead poisoning? Fine then, I'll go buy from sellers for whom it IS worth it.

    Ditto for pthalates. Those are dangerous too, although not as immediately so.

    The general sentiment seems to be that the government's being too "nanny" about this, but the truth is, I wish they would be as strict about rental housing as they're now being about toys. Current law with rental housing or home sales says the landlord or seller only has to look the other way in regards to lead content in pipes and paint; they don't have to test. Small consolation if my landlord tells me he doesn't know about any lead but my child eats a paint chip when my back's turned. They move very fast. Parents are not omnipotent.

    It's getting to the point that parents should probably think about making our own toys for our kids because it's such a huge pain for toymakers to be ethical about this. They hate it soooo much, it adds soooo much expense for them. Well when I buy a toy I'm not intending to purchase my child's injury, maiming or death. So cry me a river.

    It isn't that I think you in particular want to hurt anybody. The point is that I do not KNOW. I don't know you from Eve. You could be anybody, you could have any intentions at all. That's the kind of scenario in which government intervention becomes useful. If we really do all have the same goal of healthy, happy, and relatively safe kids (I do not wish to raise my daughter in a bubble, really), then we need to figure out how to work with this instead of constantly complaining about and railing against it. The alternative is toymakers losing business.

  3. I understand where you are coming from. Anyone in the child-product industry should have the very highest self-imposed standards, and shouldn't have to have a government mandated law to force them into creating safe merchandise.

    That said, the big issue for cottage or small businesses is that they do not manufacture their own basic materials, they purchase ready-made components which they then put together into a finished product. They have no control over how those components are produced, and should be able to trust that the companies which manufacture, for example, snaps, or buttons, or zippers or fabric paints, are creating safe products which follow industry manufacturing guidelines. It just isn't feasible for individual crafters and seamstresses to mill their own textiles or contract for the production of closure components, etc. - while large companies do just that: they often have arrangements with other manufactures for the creation of component parts, made to their specifications. Or, they have the facilities to do so in their own factories.

    So, while small businesses should NOT be exempt from safety standards, by any means, the burden of keeping unsafe substances out of *components* should rest primarily on the initial manufacturer. In turn, small businesses should be responsible for using only those components that are properly manufactured and certified for use in children's products.

    By the way, it isn't the compliance per se that is at issue, it's the prohibitive cost of testing to *prove* that compliance. It isn't that the cottage industries aren't interested in keeping children safe, it's that the weight of compliance is not properly balanced, and stands to put many people out of business over something they have no real control over.

    If manufacturers of components were required to test their products - which would be much more cost effective than having the end user test, as they create things in huge batches - and then to provide legal certification to their consumers, which in turn could be used to demonstrate compliance, it would make much more sense. Certainly, it would result in a much more detailed label on the final product, as it may be made up of many different components, but that is a small concession in order to a) keep small businesses *in* business and to b) keep children safe - which is the most important issue of all.

    I assure you, the vast majority of people who have gotten involved *are* definitely trying to work with this. They have been lobbying for practical, sensible changes. What small business persons have been asking for as far as CPSIA is concerned is a *smart* law - one that will indeed protect children without unnecessarily putting entrepreneurs, and families, out of business in the process.


absit iniuria verbis - let injury by words be absent