How Low Can We Go?

We have another big CPSIA decision looming on the horizon and therefore need your input and participation.

CPSIA provides that, as of August 14, 2011, children’s products may not contain more than 100 parts per million (ppm) of lead unless the Commission determines that such a limit is not technologically feasible.  The Commission may make this determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products.

A hearing is scheduled for Wednesday, February 16th.   In order for me to act from an educated perspective, I need the evidence and data the public supplies, along with staff analysis.  I invite you to speak up and tell us how this lower lead limit will effect you. For details about participating, please refer to the Federal Register notice.  The deadline to sign up to present your remarks in person is February 10th.  You may also submit written comments and watch on webcast.

Last July, we solicited comments and information about manufacturers’ ability to meet the 100 ppm standard. Some commenters stated that source materials, including recycled materials for metal alloys, cannot comply consistently due to the variability of the materials and that plastics could comply only if  virgin plastics are used.  We heard about significant variability among test results due to variations in testing methodology and procedures.  Several people stated there were not demonstrable health effects reducing lead limits from 300 ppm to 100 ppm in light of the relative inaccessibility of lead that is bound in plastic or metal.  Others said there are children’s products in the market now that meet the 100 ppm lead limit, so that it is not only possible, but essential for public health to meet the lowest levels feasible.

The Federal Register notice outlines issues where staff is seeking new or additional information. Questions that are of particular interest to me include:

  • how do we evaluate whether a product that complies with the lower limit is ‘commercially available’;
  • what factors should be considered in an analysis of the public health protections associated with substantially reducing lead in children’s products, and
  • does consideration of technological feasibility include economic implications?

Before we vote to regulate, it is critically important that the Commission understand the practical and safety implications of lowering the lead levels in children’s products. We need your input so we can make an informed decision.


2 Responses to “How Low Can We Go?”

  1. 1 Tim Saylor February 7, 2011 at 11:57 am

    Commissioner Nord, unfortunately the feasibility of 100ppm doesn’t matter at this point for those selling through the mass retail channel. Most mass retailers have already adopted the reduced lead limits. With there being so much uncertainty in regards to the “technological feasibility” of the lead reduction, retailers and manufacturers who carry any inventory have to be far ahead of this rule and expect the reduction. We recall the first effective dates of CPSIA, where many manufacturers were lead to believe that the phthalates limits were prospective; following the direction offered by the commissions’ legal counsel. As a result for example, my company was left holding over $500,000 in potentially “hazardous” inventory.

    I recently spoke to Commissioner Adler (who I should mention is a very nice man and spoke highly of you) and he mentioned that political party isn’t a factor in his decision making nor an influence on his voting position. I can’t say that I completely agree with that statement. Although the commission is responsible for enforcing and regulating sometimes mindless and unreasonable legislation, one would think that expertise and experience would play a role in the appropriateness and interpretation of that same legislation (if the commission were fully permitted). Although, for those who are impacted by the rules issued by the commission and thus paying careful attention to the developments can’t help but notice how polarized the commissioners are. Commissioner Adler did remind me however, that the CPSC mission is to protect consumers from unreasonable injury or harm; I get that, but there is no allowance to simply rely on businesses to either comply with reasonable established limits or pay a heavy consequence; we have to pay absurd amounts of $ to labs to essentially prove nothing about a product’s safety.

    We are responsible for protecting consumers, since after all we are consumers ourselves, but we also need to consider what is good for business and trade. Many of the rules fashioned by CPSIA are worthless in protecting children from harm, yet we are no less digging deep into our pockets to pay 3rd parties to verify our conformance.

    The inclusion of this lead reduction consideration has already mandated this limit for those of us selling to mass retailers. There certainly isn’t a chance that those retailers will change their policies, even if the commission determines that it’s not feasible. Even if they did, California would be next in line to pass legislation, which in itself is amusing; considering their state’s economic and unemployment situation.

    For most of us it’s too late to even debate whether or not the limit is feasible; we had no choice but to adopt the 100ppm limit when CPSIA was signed into law.

  2. 2 Sarah Natividad February 6, 2011 at 2:02 pm

    If I were to be able to address the CPSC, here’s what I would point out.

    On the issue of “commercial availability”: I would point out the distinction between having *some* items able to comply with a lower lead limit does not extend to mean that *all* or even *most* items would be able to comply. It’s fallacious to think that because plush toys can comply with a lower lead limit, that electronics, bicycles, and vending machine toys can too. Even within a particular category, apparel for example, there will be items that have more trouble meeting a lower lead level than others (vinyl faux leather jackets chock full of zippers come to mind, but I’m sure there are others). I would caution the CPSC against generalizing too broadly about the feasibility of wide swaths of the market to comply with a lower lead level.

    Any analysis of commercial availability should include economic analysis– not necessarily in the sense of hearing the well-worn complaints of businesses that they wouldn’t be able to continue doing business as usual, but in the sense of asking “And then what? What happens next?” Certainly, *some* of the complaints of businesses about economic unfeasibility are more reflexive than realistic; but just as certainly they are not *all* that way. I would urge the CPSC to ask the question, “How many will go out of business?” rather than dismiss these complaints out of hand.

    I would also advise the CPSC to make a distinction between pie-in-the-sky wishes and boots-on-the-ground reality. Soi-disant “consumer advocates” by necessity are of the former type. It is vital to the role they play that they dream of a better reality. We may wish to envision along with them a world where children play happily with totally lead-free toys, which look just like the ones they have now, only safer. But to make a decision in the real world, we have to examine our assumptions, as well as what we think the consequences of those assumptions might be. Products that meet so rigid a standard may not be possible. The laws of physics, chemistry, and statistics, I’m afraid, are against this totally lead-free utopia, and last time I checked the Obama administration wasn’t issuing waivers.

    I would caution CPSC to consider that by lowering the lead level, they are making a wide-sweeping and serious decision about the culture of our country going forward. Should they decide to lower it so far that traditional toys like, say, bicycles become impossible to afford, millions of children across the country will grow up without bicycles. The decision they make will affect many aspects of our culture. Children will grow up learning geology from posters instead of rocks; playing video games instead of riding around the neighborhood; even wearing increasingly homogeneous clothes with fewer closures.

    It is also possible that they may initiate a long-term trend towards parents making their own clothing and toys, or buying them on the black market, as the styles and playthings they wish their children to have gradually become unavailable. Children would then have fewer toys that meet the CPSC’s new high standards. CPSC should consider well whether their good intentions in bringing this kind of change to the world would be worth it. The commissioners may not be worried about justifying themselves to businesses or to the public, but they will still have to face their own grandchildren and explain how once even poor kids could play with storebought toys and have bikes, but not anymore, thanks to Grandma or Grandpa’s good intentions.

    You may disagree with me over what the consequences of the decision would be, but ask yourself: if it goes horribly wrong and your pie-in-the-sky assumptions don’t hold, what will you tell your grandchildren? I believe we are now at the point of diminishing returns in safety. We may not yet be at the point where CPSC’s further efforts produce more harm. But having reached that inflection point, we know the maximum approaches, and we won’t know we’re on the way down the negative slope until it’s too late and children have already been harmed. I would urge CPSC not to push our culture, our industry, and our children’s safety off a cliff just to prove a point.

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