Thursday, August 6, 2009

CPSIA - Exceptions, Exceptions

The CPSC today docketed their long-awaited decision on CPSIA Section 3 lead standards exceptions for materials known to be "always" compliant. This ornate 94-pager succeeds in making an awful law even more confusing and unworkable. [I have already commented on its shameful impact on library books.] Owing to the decision's length and the bad reputation I enjoy for going on and on, I will try to keep this comment as succinct as possible. Please keep in mind that I am summarizing a 94-page document, however.

Needless to say, the obvious effort here was to narrow the scope of the law to lessen its financial impact on many industries. In that regard, some good was accomplished. There will be some winners, generally makers of simple and untreated goods. Many (not all) "crafters" will be delighted. I hate to break the news . . . but the economy goes a bit further than crafters. What about those of us who make products more complex than an unadorned white cotton t-shirt? There's a word for those people - it's "losers".

The CPSC has the well-known problem of being forbidden to assess risk under the CPSIA. Thus, this queer document simply examines the physical attributes of various materials for compliance with the arbitrary lead standards, all without regard to whether the materials present any known safety risk. This was Congress' fervent desire - that the CPSC not exercise judgment. You can see how items like rhinestones, pens, bikes and Potato Clocks might present particular problems under this construct of law. There is no way to let these items out despite the everyday knowledge that they pose absolutely no risk to consumers from lead content.

The document spends pages and pages in tortured analysis determining which materials can safely and unassailably be construed to be compliant in all known manifestations. If upon reading it, you begin to see a giant wedge of Swiss cheese forming before your eyes, you are not imagining things. Congress' great innovation here was to make everything "illegal" and then carve out exceptions only upon evidentiary consideration after submission of very expensive petitions. If you don't apply for a carve-out, you don't get a carve-out. So holes pockmark the law in seemingly random and unpredictable fashion, all related to whomever ponied up for a (successful) application for exception. The holes cannot be accurately anticipated (they might or might not be there - you must look). Congress' genius legal construct essentially creates a law that resembles organic chemistry - an illogical subject that can only be mastered through pure memorization. I did not like that class. At all. Just as in my dreaded Orgo class, there is a lot to learn to master the CPSIA regulations.

The decision lists many materials that are now excluded from the testing requirement (nothing is excluded from the tracking labels requirement, btw), and many others are explictly NOT excluded. Even if you were able to fit wholly within the safe harbor, the decision is not intended to let you rest easy. It's not really a safe harbor, we are all supposed to remain at risk: "The Commission intends to obtain and test products in the marketplace to assure that products comply with the CPSIA lead limits and will take appropriate enforcement action if it finds a product to have lead levels exceeding those allowed by law . . . . Moreover, even when a particular product or material has been relieved of the testing and certification requirements under section 102 of the CPSIA, manufacturers and importers remain responsible for verifying that the material or product has not been altered or modified, or experienced any change in the processing, facility or supplier conditions that could impart lead into the material or product to ensure that it meets the statutory lead levels at all times." They want you to squirm - even if you are making products entirely from materials explicitly deemed compliant. The law and the CPSC have not identified any behavior or conduct that will cleanse you of liability. The clear message - you make children's products at your own risk. Are we having fun yet?

The details of what's in and what's out are in the linked document. I will highlight a few choice bits without attempting to summarize the complete decision. Please refer to the document for the list of excepted materials.

Glues: I particularly like the exception given to glues. The CPSC doesn't know the composition of most glues (other than "animal glue" - I wonder if that includes "Gorilla" brand specifically) and since risk and safety are utterly irrelevant now, the decision does not give a pass to these materials. However, good news - glues are apparently often "inaccessible" and thus don't need to be tested. Sound good? Now, here's a question - how am I supposed to NOT test the glue that is adhered to the material the CPSC wants tested? And if the glue saturates the material, then what? If the material + glue fails the test but I can prove that the raw material is fine, then what? Who performs this test, a lawyer or a testing lab? Get ready to earn your Ph.D. in testing and safety regulations.

Metals: More good news: the decision exempts "surgical steel". So, if you make toys with surgical steel, like "My First Really Sharp Scalpel Kit" or "Home Brain Surgery for Kids!", you are good to go. Other common metals used in children's products, such as pure gold and silver, titanium (both α-and β-phase - whew!) , platinum, palladium, rhodium, osmium, iridium and ruthenium are also usefully blessed. I know the ATV'rs are thinking of pure platinum models to solve their compliance problems - it's your lucky day, apparently. Even stainless steel is okay (but certainly not 303Pb - you know that one, don't deny it!). Stay away from unusual items like non-steel or non-precious metal components such as solder or base metals in electroplate, clad, or fill applications and aluminum, copper or pewter. Let's not even TALK about brass.

Education: What about rocks, you know the things that were here before Mr. Waxman began to roam the Earth? The CPSC helpfully determined that Congress made them illegal under some circumstances. "As with the precious gemstones and certain semi-precious stones that the Commission determines do not contain lead at levels that exceed the CPSIA lead content limits, other rocks and stones may comply with lead limits provided that they are not based on lead or lead compounds and are not associated in nature with any mineral that is based on lead or lead compounds. In general, we agree that most minerals do not contain lead. However, some minerals are known to contain lead or are associated in nature with minerals than contain lead. We have previously identified minerals that can contain lead, such as aragonite, bayldonite, boleite, cerussite, croroite, linarite, mimetite, phosgenite, vanadinite, and wufenite. We have also identified galena, and will add this mineral to the list of lead containing minerals under section 1500.91(d)(2)." [Italics added.] Clear enough for you? And how does this apply to granite or fossils? You tell me, we do not employ a Ph.D. geologist (yet). This is going to make school supply so EASY! It's "common sense" going full blast.

Apparel: While the decision excises most fabrics and dyes from the need for compliance testing, it also explicitly includes "after-treatment applications, including screen prints, transfers, decals, or other prints." Along with the decision on rhinestones (also noted and affirmed in this document), all accoutrements found on apparel or footwear will be subject to endless testing. The message to apparel makers - if you want to keep life simple, make dull, unadorned clothing, and try to use string as closures (but not TOO much string, Mr. Hoodie). Snaps, zippers and so on expose you to liability risk and cost. "Boring" is the new "exciting" under the CPSIA.

Paper and Ink: Papers have been excluded, even when printed. This is consistent with the decision to exclude books printed on or after 1985. Printing inks used in four-color process are also blessed, however the following inks are NOT excluded: "spot colors, other inks that are not used in the CMYK process, and inks that do not become part of the substrate". Boy, this will be so easy to manage. . . .

The decision continues: "In addition, as discussed in part D.13 of this preamble, we have found that certain after-treatments, including screen printing, may use leaded pigments. Accordingly, inks used in any after-treatments for decals, transfers, and other prints also will be excluded under new § 1500.91(d) (6). Other additional treatments such as . . . laminators or laminations, including plastic sheet or film, or other coatings, would continue to require testing and certification under section 102 of the CPISA if such products are plastic component parts or a paint or similar surface-coating material under 16 CFR part 1303."

Were you feeling good for a minute there? That was unintentional, the CPSC apologizes for any misunderstanding. Hopefully you are now experiencing a good deal of anxiety again.

Fasteners: Staples on books need to be tested IF they are accessible BUT you can get out of it if you use surgical steel for your staples! Bookbinding will be a great new market for medical supply companies. If you use screws as a fastener . . . well, you can guess.

Plastic or Metal Components: Give up the idea that ANYTHING made of plastic or metal will be blessed if not included in the above exceptions: " . . . based on the Commission's past experience with other children's products that have been found to contain lead, the Commission cannot make a determination that any component parts made out of plastic or metal (with the exception of metal determinations made in this rule) falls under the lead content limits." Zippers, grommets, etc. - all are left IN the law. Component testing will be addressed later. I am waiting with baited breath.

While the CPSC tried its best to be sensible, the law does not permit good sense on their part. They are not to be blamed, they didn't write the law and are not permitted to rewrite it. Frustration with the decision is appropriate, but the "bad guy" is clearly Congress and its estimable "leaders". As we get walked down the plank, remember who did it to you. The voting booth beckons . . . .


Esther said...

It is apparent to me that members of Congress and the CPSC have not visited the children's section of any library. Ordinary books which have been glued suddenly become non-compliant when any portion of the binding becomes exposed. This on the off chance that the adhesive might contain glue. Any children's library will tell you that children's books are used and abused more than other books in the library. Their life expectancy can vary, but at some point the binding breaks. We librarians will tape and/or repair books to extend their life, but now we are faced with a more difficult choice. Will the repair be CPSIA compliant or will we have to toss the now toxic book into an appropriate FHSA certified garbage can? No library has the budget to replace books willy-nilly at the first sign of trouble.

Esther said...

Oops, "the off chance that the adhesive might contain lead."

Connie said...

When I heard a distinct 'sigh of relief' when people started reading all these CPSC pronouncements, it reminded me of when they issued the 'stay of enforcement' on the testing. Many people took it as a signal of common sense but it was nothing of the sort. And so it is this time as well. Everything is so complicated that I don't know how anyone can understand or follow the intricacies of CPSIA. Thanks Rick for continuing to point out the absurdities of this law. I appreciate the efforts of the CPSC but there is truly no way to handle this law as it is written.

Janine Giandomenico said...

...I have a headache from reading all this mullarky. Will it never end?