CPSC Votes to Lower Lead Content Ban for Children's Products to 100 ppm

On July 13, 2011, the Consumer Product Safety Commission ("Commission") voted 3 to 2 to allow the 100 ppm lead content ban on children's products to go into effect on August 14, 2011. Pursuant to Section 101 of the Consumer Product Safety Improvement Act of 2008 ("CPSIA"), "unless the Commission determines that a limit of 100 parts per million is not technologically feasible for a product or product category," the lead content limit for children's products will become 100 ppm three years after the date of enactment of the CPSIA.

The vote broke down on party lines with Chairman Inez Tenenbaum and Commissioners Robert Adler and Thomas Moore voting that 100 ppm is a technologically feasible limit and Commissioners Nancy Nord and Anne Northrup voting that the limit is not technologically feasible. Commissioner Nord also introduced an amendment to the 100 ppm limit to exempt products made from recycled materials which was defeated 3 - 2.

Accordingly, as of August 14, any children’s product as defined in section 3(a)(16) of the Consumer Product Safety Act, except those subject to specific exclusions, that contains more than 100 ppm lead content shall be treated as a banned hazardous substance under the Federal hazardous Substances Act. The new lead content limit will apply retroactively to all children's products covered by the ban regardless of the date of manufacturing.

Note that the new lead content limit does not affect the Commission's current stay of enforcement of third party testing and certification requirements for children’s products subject to the lead content limit (except for metal components of children's metal jewelry) which is still in effect until December 31, 2011, at which time the stay will expire. Furthermore, neither the lower lead content limit nor the stay of enforcement of the testing and certification to the lead content limit affects the current lead paint limit of 90 ppm and the certification and third party testing requirements for children's products subject to the lead paint limit.