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Lead Limit Exemption for Children’s Pens Would be Held to Five Years Under New Proposal

Saturday, March 01, 2014
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission is reopening until April 2 the period for public comments on a petition requesting an exception from the 100 parts per million lead content limit for children’s products for a new line of pens aimed at children in the early stages of learning to write. The manufacturer has identified a low-lead alternative material for a key component in the pens but says it needs time to make production of the pens with that material technologically feasible.

Under section 101(a) of the Consumer Product Safety Improvement Act, consumer products designed or intended primarily for children 12 years old and younger that contain lead content in excess of 100 ppm are considered to be banned hazardous substances under the Federal Hazardous Substances Act. However, section 101(b)(1) allows the CPSC to exclude a specific product, class of product, material or component part from this limit if it determines that (i) the item/items require the inclusion of lead because it is not practicable or not technologically feasible to manufacture the item/items in accordance with section 101(a) by removing the excessive lead or making the lead inaccessible; (ii) the item/items are not likely to be placed in the mouth or ingested, taking into account normal and reasonably foreseeable use and abuse by a child; and (iii) an exception for the item/items will have no measurable adverse effect on public health or safety (i.e., will result in no measurable increase in blood lead levels of a child), taking into account normal and reasonably foreseeable use and abuse.

In this case, the petitioner requested the functional purpose exemption for the accessible portion of the nickel silver point assembly proposed for use in these pens, which contains total lead of approximately 8,720 ppm. The petitioner asserted that removing or making excess lead inaccessible in manufacturing the pens is neither practicable nor technologically feasible. Among other things, the petitioner said that the only metal alloy available for pen points that contains lead below 100 ppm is stainless steel but that stainless steel points are more commonly used with water-based inks typically found in roller ball pens and gel ink pens, whereas the proposed children’s pens will contain a solvent-based ink used in ballpoint pens.

However, the petitioner has recently informed the CPSC of the possible availability of a low-lead stainless steel alternative to the nickel silver alloy point currently used in the petitioner’s solvent-based ink pens and for which a lead limit exception would be required. The petitioner states that a trial batch of the stainless steel points passed its technical qualification when tested with its solvent-based inks but that production of these points on a consistent basis in industrial quantities to meet the volume and timing demands of customers is not technically feasible. Accordingly, the petitioner is suggesting that its earlier request for an exception for the continued use of the nickel silver alloy point be limited to five years to allow it additional time to develop a compliant children’s pen.

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