Wednesday, October 21, 2009

CPSIA - CPSC Isn't Interested in These Ways to Poison Children

In a clarification of the rules implementing the CPSIA, the CPSC today documented which ways to poison children with lead are legally permissible.

First, it is okay to incorporate as much lead as you want in your product, provided that it is not "intended primarily" for children: "The Commission is often asked what products must comply with the lead content limit, i.e., what is a 'children’s product' under the law. The answer is anything that is designed or intended primarily for a child 12 years of age or younger. 'Primarily' is the key word used in the law. Not everything a child uses or touches must meet the lead content limit, only those things designed or intended primarily for a child 12 years old or younger." So, this means that the lead limits only apply to products intended "primarily" for children, and does NOT apply to products that children might use but aren't aimed at the children's market. [This is the dilemma in the brass bushings case.] Regulation of children's products exists in its own little world, and hazards that exist within that market don't exist outside it - is that it?

The CPSC will make a determination about this intent based on what you say or what you and others think about your product: "We consider how the product is marketed as well as what the manufacturer has said about the product (if reasonable) and whether consumers commonly recognize the product is being intended for a child 12 or younger." Given that the CPSC is supposed to protect consumers from untoward product hazards (hence the agency's name), I think it is fair to conclude that the CPSC has decided use of lead is only dangerous if the leaded product is intended for children. Intent apparently affects the physiological impact of lead. Interestingly, this is also the case with phthalates. Perhaps these materials were banned from children's products because they can be activated by mind control, which is clearly dangerous.

I find the CPSC's position compelling, as it suggests that perhaps the rules for small business under the CPSIA should be different. Many people have suggested to me that we should demand different rules for small business. After all, small businesses are severely and unfairly penalized under the new law - perhaps small business should get a pass? I have always said "no" on the grounds that parents are unlikely to forgive injury based on who caused it. Injuries are bad, whether caused by a big business product or a small business product. Therefore, it seems imperative to me that one (rational) set of rules needs to apply to everyone.

If, however, lead is okay if delivered by pen (". . . most consumers would not consider an ordinary ball point pen as being intended primarily for use by a child 12 years of age or younger") but not by way of an electrical cable in a potato clock, then perhaps we can rethink the other rules by analogy. Thus, this new CPSC position paper suggests that it might also be okay for certain kinds of businesses to poison kids. Pen companies, for instance, are apparently unrestricted - your Bic can be made of pure lead, that's fine with the CPSC. By this same pretzel logic, I think it is reasonable to hold that small businesses are exempt from the law. Why not?!

In the same document, the CPSC also reiterated their excellent advice on materials that can be included in children's products without testing for lead. They chose to remind us that our old friends palladium, rhodium, osmium, iridium and ruthenium are okey-dokey in children's products. The fact that these materials are well-known to be poisonous, explosive and made from spent nuclear fuel rods did not apparently deter the CPSC. I know I am not a "safety professional" but I would think that at least some of these materials are hazardous substances under the FHSA, presumably making them poor candidates for exemption from the CPSIA. Given that these materials continue to appear on the CPSC's exempt list suggests that I must not fully appreciate their safety benefits . . . .

Of course, the CPSC's permission to use these materials on the grounds that they are lead-free seems remarkably out of touch with reality. Each of these materials, like other permitted materials like surgical steel, certain stainless steels, gold, silver, platinum and titanium, as well as diamonds, rubies, sapphires, emeralds and natural or cultured pearls, is absurdly expensive and in many cases, quite rare. It may sound good to say that the market is full of available alternatives, but if they are ridiculously expensive or hard to obtain, how is that any different than giving us permission to use pixie dust or krytonite? As a practical matter, not at all.

Someday, I wish the CPSC would issue practical advice that made sense to me. Once upon a time, I actually thought our nation's safety laws were rational, understandable and predictable. Nowadays, they are riddled with traps for the unwary and require teams of people to interpret and administer them. The implementing rules are detached from any semblance of the reality of the marketplace: "The products on this list are all things the Commission has determined do not contain lead over 100 ppm, which is within the allowable 300 ppm limit. Thus, they will comply with the law (and must always comply) and, therefore, do not need testing and certification. They do not need to be tested by a third party laboratory to prove they are, in fact, made of something on the list, and they do not need to be tested to prove that they meet the lead content limits . . . . Some retailers may want manufacturers and importers to test and certify their products, but those tests and certificates are not required by the Commission for the materials or products on the list." That makes it fine, I guess - the CPSC has had nothing to do with this "mysterious" phenomena.

As long as the CPSC thinks it is okay to wear blinders while doing its job, we will continue to get rules describing the legal and illegal ways to poison children and other safety conundrums. I am tired of it, what about you?


Anonymous said...

Okay, we're going to replace our rubber duckies with titanium versions, and the CPSC says we don't have to test them. What a savings! However, and this is the serious question, don't we still have to mold a tracking label into them even though this hypothetical product is excused from 3rd party testing?

I.e., does an exemption from testing also eliminate the requirement for a permanent tracking label on a children's product?

Rick Woldenberg, Chairman - Learning Resources Inc. said...

Good question, one with an easy answer - there are NO EXCEPTIONS to the Section 103 Tracking Labels requirement. EVERY consumer product designed or intended for children 12 and under MUST have the tracking label information "ascertainable". Thus, your titanium duckies must be traceable back to their original lots, whether physically marked or not. That sounds tough, especially since many small businesses don't use lot numbers on their products and aren't required to do so under the tracking labels guidance. How, exactly, will this information be "ascertainable" on fungible duckies? Jolly good question! I posed it to the CPSC Commission by letter six weeks ago . . . no answer. I am getting used to it.

Ted C. said...

So in an age where children under 12 have I-pods and cell phones with them in schools, the CPSC would have us believe that NO CHILD is using a ball point pen, but only pencils? And don't I seem to remember many children (and college students/adults) putting a pen in their mouth from time to time as a tool to help thought processes or for unknown reasons? Don't think that most drug stores card a kid who looks under 12 trying to buy a ball point pen!