Toy manufacturers, importers and retailers breathed a collective sigh of relief on August 1 at Congress’s clarification that the 100 ppm lead content limit, which went into effect on August 14, does not apply retroactively to children’s products in inventory. This standard only applies to products manufactured after August 14.
In addition, Congress codified the “functional purpose” exception that has been discussed in industry circles since the adoption of the CPSIA. In essence, this provision permits the CPSC to grant an exemption from the lead content rules if it determines that: (i) a product (or class of product, material, or component part) cannot be manufactured without lead either because it is not practicable or because it is not technologically feasible, (ii) the product is not likely to be placed in a child’s mouth or ingested during the normal and reasonably foreseeable use and abuse of the product; and (iii) granting an exception would have no measurable adverse effect on public health. Historically, the effect on public health was measured by reference to blood lead levels in children. The new law permits the CPSC in its discretion to adopt an alternative method. An exception can be granted by the CPSC on its own initiative or upon application of an interested party, in which case the interested party bears the burden of proof.
The legislation contains an exemption from the lead limits for off-highway vehicles (including snowmobiles). It also exempts used children’s products other than children’s metal jewelry and children’s products for which the seller or donor has actual knowledge of non-compliance.
The CPSIA limits or bans the use of certain phthalate compounds in toys and child care articles. The new legislation clarifies that these limits do not apply to component parts that are not accessible to a child through normal and reasonably foreseeable use and abuse of the product, as determined by the CPSC. More specifically, if a component part is not physically exposed to the child by reason of a sealed covering or casing and that covering or casing is not likely to be disturbed through reasonably foreseeable use and abuse of the product (including swallowing, mouthing, breaking or other children’s activities, as well as the aging of the product), then that part is not accessible to a child. The CPSC is charged with the task of developing a rule to provide guidance with respect to this provision.