Understanding the CPSIA

Provisions of the most immediate concern strictly limit the amount of lead contained in all products intended for use by children aged 12 and under.

The new Consumer Product Safety Improvement Act (CPSIA), which originally targeted imported toys from China, significantly overhauls consumer product safety law. Provisions of the most immediate concern to the decorating industry strictly limit the amount of lead contained in all products intended for use by children aged 12 and under. Beginning February 10, 2009, lead content in these products is not to exceed 600 parts per million (ppm). As of that date, products need a “general conformity certification” based on a test of the product or a “reasonable” testing program.

After August 14, 2009, lead content may not exceed 300 ppm, and children’s products will have to be certified based on testing by third-party laboratories accredited by the Consumer Product Safety Commission (CPSC). After August 14, 2011, the lead content of these products may not exceed 100 ppm, if technologically feasible. However, CPSC is not able to set any limit greater than 300 ppm. Testing will be based on the total content of lead, not only the amount of lead that leaches from the product. The CPSC will publish the accreditation procedure for the 300 ppm lead content restriction in May 2009.

The law also mandates permanent labels on children’s products and their packaging by August 14, 2009; labels will need to include source, production date and batch information. Certification and testing requirements apply to imported products and those manufactured domestically. Retailers and importers are considered to be manufacturers.

Manufacturers from outside the U.S. may submit samples for testing in the U.S. without certifying them. However, before shipping products imported for consumption, warehousing or distribution in the U.S., these products must have the required certifications.


Two items in a preliminary CPSC Question and Answer document offer some hopeful advice for the industry. One addresses ball point pens with leaded brass tips. CPSC staff suggested that “to the extent that these are general purpose items not being marketed to or advertised as being intended for use by children 12 years or younger, these pens would not be subject to lead limits under CPSIA.” This thinking suggests that most decorated glass or ceramic ware, such as dinnerware or mugs, would not be affected by the lead content provisions of the law unless, for example, they were decorated with cartoon characters or otherwise appeared to be intended specifically for use by children.

A question about borosilicate enamels generated a CPSC staff reply that “materials which actually become part of the substrate, such as…ceramic glazing…would be considered to be part of the substrate of the product as a whole part for testing purposes.”

Issued Regulations

In the face of widespread outcries about the effect of the CPSIA on retailers, small businesses and even thrift shops, the CPSC issued three sets of proposed regulations on January 15. This began the implementation of the CPSIA, which makes it illegal to sell or import any product intended for use by children aged 12 or under containing lead in excess of 600 ppm after February 10.

One draft regulation lists natural materials, such as untreated wood, cotton and silk; precious gemstones; and others, that are automatically exempted from the new law’s requirements. Another provides guidance on what product components are considered to be inaccessible to children through “normal and reasonably foreseeable use and abuse,” and thereby exempt from the ban.

The third proposal establishes procedures and requirements for a CPSC determination that a child’s product does not exceed the lead content limits or that, if it does exceed the limits, it would not result in the absorption of any lead into the human body nor have any other adverse impact on public health or safety.

The comment period on these three proposed regulations ended February 17. Additional regulations will be published as the CPSC staff gets them written.

At What Cost?

Numerous organizations have decried the enormous cost of the legislation, particularly in terms of testing requirements and uncertainty due to the ban going into effect before clear guidance was issued. The National Association of Manufacturer’s Coalition notes that “no comprehensive screening methods have yet been approved by the CPSC staff for such testing. In addition, there are currently an inadequate number of accredited test laboratories to perform testing under existing regulations and standards already being required.”

In response to such concerns, CPSC commissioners voted on January 30 to issue a one-year stay in the enforcement of certain testing and certification requirements for manufacturers and retailers of most products covered by the law. However, the ban on products containing lead levels, as well as the associated civil penalties, remains in effect. 

Lead paint and certain other coatings are not covered by the stay and remain subject to testing requirements. However, the CPSC does distinguish ceramic enamels and glazes that become vitrified on glass or ceramic products from paint and other similar surface-coating materials. Accordingly, SGCDpro believes that properly glazed and/or decorated glass and ceramic products would not need to be tested during the one-year stay of enforcement, as long as the producer and seller are confident that the items would meet the lead limits. Efforts are underway to confirm this interpretation.

As a practical matter, in spite of the CPSC stay on testing requirements, many retailers and other customers are likely to require suppliers to provide certifications or test results to protect them from liability for products that may fail to meet the law’s lead limits.

The law also has several provisions applicable to all products, leading to significant budget increases to the CPSC for enforcement, substantially increased civil penalties, a mechanism for state Attorneys General to enforce federal product safety laws, and a requirement that the CPSC develop a searchable database for the safety of consumer products. It also contains a whistle-blower provision protecting company employees who report a violation or cooperate in investigations.

For additional details regarding the CPSIA, visit www.sgcd.org.

Author's Note

SGCDpro researches these issues and provides information as a service to its members. The content of this article should be considered for informational purposes only. For answers to specific questions, manufacturers should contact their company’s legal counsel.

SIDEBAR: Other Regulatory Issues

SGCDpro has learned of two updates to California Proposition 65 information. First, California has encouraged businesses to request a formal opinion from the state as to whether specific products require warning labels. A Safe Use Determination (SUD) advises whether a warning is required for a specific exposure, or whether a discharge of a chemical into a source of drinking water is prohibited. SUDs are currently advisory only. An amendment to the Prop 65 regulations proposes to give the determinations a “rebuttable presumption affecting the burden of proof that the activity described in the determination, when conducted as described, is in compliance with the Act and all related regulations.”

The proposal would give businesses greater assurance that the SUD would protect them from frivolous but costly lawsuits and settlements. To more accurately reflect the actual minimum cost of the initial processing and review of a SUD request, the state proposes to increase the processing fee from $500 to $1000. Issued September 2008, the comment period on the initial and amended proposals has ended. Proposition 65 was passed in November 1986, and numerous lawsuits and violations have been alleged against ceramic manufacturers and decorators since that time.

In other Prop 65 news, SGCDpro has learned that in January 2008, California’s Office of Environmental Health Hazard Assessment (OEHHA) established a formal safe harbor level for cadmium under Prop 65. The OEHHA announced that cadmium exposures not exceeding 4.1 micrograms per day would not require a Proposition 65 warning. This is lower than the level previously believed to be acceptable. SGCDpro is requesting that the OEHHA clarify how the safe harbor level for cadmium applies to decorated glass and ceramic ware. This could be done by translating exposure in micrograms per day to leaching levels, as was previously done.

The Bureau of Customs and Border Protection (CBP), which is part of the Department of Homeland Security, has issued an interim final rule implementing the Safe Port Act, which took effect January 26, 2009. A flexible enforcement policy will last for 12 months after the effective date. The Act is known to the trade as both the “Importer Security Filing” (ISF) and the “10+2 rule,” which is shorthand for the number of advance data elements the CBP requires importers and carriers to submit.

The Purpose of the ISF is to improve the CBP’s ability to identify high-risk shipments that may be potential security threats to the U.S. According to Ed Weiner, president of Maryland China, “Compliance with the new 10+2 rule will allow Customs to better spend its time inspecting higher-risk cargoes. Most of the information needed was already required. The big difference now is that the information is needed sooner in the shipping cycle, and non-compliance can cause your shipments to miss their vessel or have their release delayed. The best approach is to work with your Customs broker and suppliers to make sure you comply with these new regulations.”

The rule also changes fines for violations from the value of the merchandise to $5000 for each violation, and makes provisions for the creation of an Importer Security Filing Bond. The rule also includes the CBP’s commitment to support the trade community through a proposed schedule of ISF outreach events. Comments on the interim final rule must be received by June 1, 2009. For instructions, visit edocket.access.gpo.gov/2008/E8-270848.htm.


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