CPSC Looks to EU for Rules on Lead in Electronic Devices

In section 101(b)(4) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Congress acknowledges that it may be technically infeasible for some electronic devices intended for children to comply with the new lead laws.  If the CPSC finds that to be the case, it must “issue requirements to eliminate or minimize the potential for exposure to and accessibility of lead in such electronic devices.”

In one of its recent proposals related to lead in children’s products, the CPSC staff concluded that it is technically infeasible for certain electronic devices to comply with the CPSIA because, for some products, lead-content cannot be reduced to the new legal limits, nor can the lead-containing parts be made inaccessible.

To address this issue, the CPSC staff recommends that the Commission adopt the exemption-rules established by the European Union as set forth in their Directive 2002/95/EC regarding “the restriction of use of certain hazardous substances in electrical and electronic equipment” (EU RoHS).  In the EU directive, lead concentration is limited to 1000 parts per million (ppm), as opposed to the CPSIA’s phased limits of 600ppm, 300ppm and 100ppm.  However, the focus of the staff’s recommendation is the set of exemptions to the limits.  Namely, exemptions are allowed if substitution of the lead is not possible, or if the health or environmental effects of a substitution would be worse than allowing the lead.

Staff’s recommendation to adopt the EU RoHS exemptions applies only to the extent that the lead at issue is required for the function of the device.  For that reason, the staff recommends that any exemptions in the EU directive that are related to decorative (e.g., leaded crystal) or other non-functional uses not be adopted by the Commission.

Notably, the staff says that spare parts, which may be included with a product when it is sold, should be regarded as inaccessible so long as they are inaccessible once installed in the product.

I will note any significant changes to the proposal when it is published in the Federal Register and will post deadlines for comments on the Consumer Product Safety Information Calendar.

UPDATE:  01/15/2009:  The Commission accepted the staff’s proposal and printed proposed rulemaking in the Federal Register, p. 2435 on January 15, 2009.  Comments are requested by February 17, 2009.

UPDATE: 02/05/09: The Commission has withdrawn the proposed rulemaking and, in its place, published an interim final ruling on exemptions for lead in children’s electronics.

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

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