CPSC Issues Rule on Exemptions to Lead Limits in Children’s Products

On July 10, 2013, the US Consumer Products Safety Commission (CPSC) published in the Federal Register a final rule [Docket No CPSC-2009-0004] to amend its existing regulations pertaining to procedures and requirements for exclusions from lead limits under section 101(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA).

The CPSIA provides a “functional purpose” exemption from the lead limits of Section 101 (or lead in substrate material) of 100 ppm.  This functional purpose exemption can apply to a specific product, class of products, type of material or component part.

To qualify for this functional purpose exemption the product, class of product, material or component part would have to require lead in excess of 100 ppm because it would not be practicable or technologically feasible to manufacture the product without lead in excess of the limit.

Exemptions can be issued based on how likely the product, class of product, material or component part could either be placed in the mouth, ingested or will have no measurable adverse effect on public heath, taking into consideration “normal and reasonably foreseeable use and abuse”.

If a party seeks exemption under this rule, they bear the “burden of proof” in demonstrating that product, class of product, material or component part meets the requirement of the exemption.  The CPSC may base its decision solely on the materials presented by the party seeking the exemption and any materials received through the notice and hearing.

If an exemption is sought for the entire product or class of products then every accessible component or material must meet the criteria of the functional purpose exception.

If the CPSC grants an exemption for a product, class of products, material or component part they may; establish a new lead limit, place an expiration date on the exemption or establish a schedule after which the manufacture of the product, class of product, material or component part would be in compliance with existing lead limits.

The CPSC anticipates providing the public with staff guidance on the applicable procedures for requesting an exemption, which will be made available on the CPSC website. The effective date of this rule is July 10, 2013.