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Lead Limit Exemption Sought for Children’s Pens

Tuesday, April 30, 2013
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission has received 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 age five and up. Comments on this petition are due no later than May 30.

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 is requesting the functional purpose exemption for the point component of the children’s pens. The accessible portion of the nickel silver points assembly proposed for use in these pens contains total lead of approximately 8,720 ppm, while all of the other accessible components of the pens contain total lead below 100 ppm. The petitioner states that if it were to change the metal alloy to reduce the lead content to below 100 ppm, millions of dollars in high-speed manufacturing equipment would require retooling and use of cutting oil to produce the points, requiring significant resources and capital. The petitioner further states 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.

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