Inaccessibility Rules for Exemption to CPSIA Lead Limits

Section 101(b)(2) of the CPSIA states that component parts of products will not be subject to lead limits if they are inaccessible to children.  ‘Inaccessible’ was defined in the Act as “not physically exposed by reason of sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product,” including “swallowing, mouthing, breaking, or other children’s activities, and the aging of the product.”  The Act also specifies that paint, electroplating and other coatings will not be considered a barrier that renders a lead containing component inaccessible.

Within a year of the CPSIA being enacted (by August 14, 2009) the CPSC must issue rules that provide guidance in determining whether a product-component qualifies as inaccessible.   In December, CPSC Staff proposed that lead-accessibility be evaluated using the same methods as those used for determining whether a children’s product has any sharp points and edges.   That is, through use of probes shaped similarly to a child’s finger.

Under the staff’s proposal, if a component cannot be touched by the correctly-sized accessibility probe both before and after tests of foreseeable use and abuse, it shall be considered inaccessible.  Complete text of the sharp points and edges regulations that the staff recommends be followed, can be found in Title 16 of the Code of Federal Regulations, Part 1500, sub-sections 1500.48 – 1500.53*  Additional standards related to use and abuse tests are located in the Standard Consumer Safety Specification for Toy Safety (ASTM F 963-07).

Although the regulations for sharp parts apply to products intended for children aged eight and under, while the CPSIA lead regulations apply to products intended for children aged twelve and under, CPSC staff feels that the same testing is sufficient to cover the older age group.

In their proposal, the staff states that children aged nine to twelve are in many ways indistinguishable from older children and adults.  Therefore, the staff recommends that “intentional disassembly or destruction of products by children older than age eight years by means or knowledge not generally available to younger children, should not be considered in evaluating products for accessibility of lead-containing components.”

Once the a proposed rule is published in the Federal Register, I will note any changes here.  I will post deadlines for comments on the Product Safety Calendar.

UPDATE 01/15/2009:  The Commission accepted the staff’s proposal and printed proposed rulemaking in the Federal Register, p. 2439 on January 15, 2009.  Comments are requested by February 17, 2009.

UPDATE 02/06/009:  Commission issues statement that, until accessibility rules are finalized, it “will accept a manufactures determination that a part is inaccessible if it is based on reasonable interpretation of 101(b)(2).” http://cpsc.gov/library/foia/foia09/brief/101lead.pdf

CPSC Staff Proposal:  http://cpsc.gov/library/foia/foia09/brief/leadinaccessibilty.pdf

Information about other Staff proposals regarding the lead limits can be found here.

* Paragraph (c) of 1500.51, regarding bite testing, is excluded from the staff recommendation.