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CPSC Amends Regulations on Exclusions from Limit on Lead in Children’s Products

Wednesday, July 10, 2013
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission has issued a final rule that, effective July 10, amends the procedures and requirements for granting exclusions from the ban on consumer products designed or intended primarily for children 12 years old and younger that contain lead content in excess of 100 parts per million. This change reflects a law passed in 2012, which revised section 101(b) of the Consumer Product Safety Improvement Act of 2008 to provide for a functional purpose exception from the lead content limit under certain circumstances and set forth the procedures for granting an exception.

The revised regulations state that the CPSC, on its own initiative or upon petition by an interested party, shall grant an exception to the lead content limit for a specific product, class of product, material or component part if after notice and a hearing it determines that:

- such item(s) require the inclusion of lead because it is not practicable or not technologically feasible to manufacture them by removing the excessive lead or by making the lead inaccessible;

- the item(s) 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

- an exception will have no measurable adverse effect on public health or safety (i.e., no measureable increase in the blood lead levels of a child, or such alternative measure as the CPSC may adopt), taking into account normal and reasonably foreseeable use and abuse.

However, in granting such an exception the CPSC may, to protect public health or safety, either (a) establish a lead limit that such product, class of product, material or component part may not exceed or (b) place a manufacturing expiration date on the exception or establish a schedule after which the manufacturer must be in full compliance with the applicable lead limit.

If an exception is sought for an entire product, the burden is on the petitioning party to demonstrate that these criteria are met with respect to every accessible component or accessible material of the product.

The CPSC anticipates making available to the public on its Web site a staff guidance on the applicable procedures for requesting such an exception.

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