CPSC Votes To Commence Rulemaking For High Powered Magnets

The Consumer Product Safety Commission (CPSC) has voted 4 – 0 to commence rulemaking for high-powered magnet sets.  According to the CPSC’s press release, CPSC staff estimate that small, high powered magnet sets were associated with 1,700 emergency room-treated injuries between 2009 and 2011, with the majority of injuries (70%) have been to children 4 to 12 years of age.

Of course, many of these magnet sets are marketed as sculptures, puzzles, and stress relievers and are labeled not for use by children. You may recall that the CPSC recently sued the maker of the Buckyballs and Buckycube desk toys – which were definitely not marketed to kids.  However, CPSC staff believes these magnet sets have strong appeal to children and pose a potential for high-severity injuries.  The CPSC has issued warnings regarding the hazards associated with these high powered magnets.

If swallowed, these magnets can link together inside a child’s intestines and clamp onto body tissues, causing intestinal obstructions, perforations, sepsis and death. Internal damage from magnets can pose serious lifelong health effects.

The CPSC’s Notice of Proposed Rulemaking indicates that such magnet sets will be prohibited if the set contains more than one magnet that fits through the small parts choking hazard tube unless the flux index is less than 50, as determined by the method set forth in ASTM F963-11.  The proposed rule has a 75 day public comment period.

The CPSC is specifically soliciting comment on the risks posed by magnets in science and craft kits. While I do believe the products with unexpected hazards require appropriate regulation, the key is appropriate regulation. I’m not sure a complete ban, without appropriate exclusions, is appropriate. Certainly I believe that science kits should be able to have high powered magnets, as long as appropriate warnings are provided.  Go comment, please.

Cadmium Prompts CPSC Recall of McDonald’s Shrek Forever After Promotional Glasses

You pull in to the drive through at McDonald’s and you place your order. And then you ask for some cadmium on the side.

What? You don’t want cadmium when you go to McDonald’s? Well, then don’t order the French fries (just so you know, fries generally have 0.06 parts per million or “ppm” cadmium). (For reference and before you panic, low levels of cadmium are found in many items we eat. But the most common source of cadmium exposure for Americans is cigarette smoke.)

And don’t buy the new promotional Shrek Forever After glasses at McDonald’s, because, well, the painted decorations have cadmium.

Yep, that’s right. Cadmium.

Not what you wanted or expected, is it?

But it is true. And today the Consumer Product Safety Commission (CPSC) announced a voluntary recall of those promotional Shrek Forever After glasses. 12 million of those glasses.

I was one of the people to submit the information to the CPSC. I used my Thermo Fisher Scientific Niton XRF analyzer to test all of the current promotional Shrek Forever After glasses – Donkey, Shrek, Fiona and Puss in Boots. And I found cadmium. The cadmium levels varied with the paint color. Historically, cadmium has been used in paint to get yellow to deep red hues.

In the Fiona glass, I detected 1,049 ppm cadmium in the baby’s face. I detected no cadmium in Fiona’s dress (at the sleeve) but did find 10,900 ppm chromium.

In Puss in Boots, I detected cadmium at 1,378 ppm in the red pillow on which Puss rests, 1,048 ppm cadmium in the orange part of Puss, and 1,575 ppm cadmium in the yellow lion on which the Gingerbread Man sits. The Puss figure on the back (in the orange) was 1,707 ppm cadmium and 3,721 ppm chromium.

I detected 1,020 ppm in the green used on the Shrek glass. The yellow on that glass (at the Fiona Wanted sign) was 1,946  ppm cadmium.

Now, since the paint on the glasses is a thin film, it is possible that the cadmium levels are actually higher in the paint because the analyzer penetrates the glass, and the glass doesn’t have any cadmium. And, the XRF analyzer detects total and not soluble levels, which, as we know from the Zhu Zhu pets fiasco, is a big difference.

The real question is – does the cadmium matter? Cadmium is considered more toxic than lead and exposure is linked to a number of health problems. Cadmium is a carcinogen. Ingestion of low levels of cadmium can lead to kidney damage and fragile bones. The CPSC’s recall announcement states that “[c]onsumers should stop using recalled products immediately.”

But can you get exposed from cadmium in the painted decorations on the outside of these glasses? The painted decorations are unlikely to leach into liquids contained in the glasses – the decorations are on the outside. The decorations are also below what is known as the “lip and rim area” – or the area where you put your mouth to drink out of the glass – so you are not likely to actually put the painted decorations in your mouth.

However, you can get wear and transfer from the decorations to your hands. While dermal absorption of cadmium is very low, the exposure occurs as cadmium is transferred to your hands and then your mouth or your food. Think about it – drink out of the glass, eat a french fry or your chicken nuggets. Are you going to wash your hands in between? Nope.

Also, washing the glasses can result in contamination of other dishes. In an automatic dishwasher, the heat and intensity of the water hitting the glasses can cause the decorations to deteriorate. Unfortunately, the cadmium can contaminate other dinnerware placed in the dishwasher – although the rinse cycle may remove all or some of it.

Does it matter? Well, there isn’t an applicable regulatory standard (see below), but you may want to avoid the glasses.

Why is there even cadmium in a children’s product (and is this a children’s product?)? Earlier this year, there were several high profile recalls of cadmium in children’s jewelry. But, the thing is, there isn’t any comprehensive federal regulation addressing cadmium in children’s products.

The Consumer Product Safety Improvement Act (CPSIA) does NOT have a limit for total cadmium. It does implement a standard for soluble cadmium in paints and coatings used on children’s toys (because the CPSIA makes mandatory the ASTM F963 toy standard). That standard is 75 ppm cadmium (soluble). But the CPSIA doesn’t have a cadmium standard for all children’s products as the CPSIA does for lead.

The CPSC has recalled cadmium children’s products (including the previously mentioned children’s jewelry items) under the Federal Hazardous Substances Act (FHSA). The FHSA allows the CPSC to find an item to be a “banned hazardous substance” if the level of cadmium is sufficient to cause substantial illness as a result of reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.

The US Food and Drug Administration (FDA) has a standard for cadmium (and lead) in ceramic articles, flatware and hollowware used for food storage. The standard is based upon extractable or leachable cadmium (and lead) and not total cadmium as measured by the XRF.

In addition to this standard, there is a voluntary industry standard for lead and cadmium in the lip and rim area. These limits are not more than 4 ppm of lead and not more than 0.4 ppm for cadmium leachable from the lip and rim area. And, as discussed above, the Shrek decorations are outside the lip and rim area.

In California, there is Proposition 65, which requires a warning before exposing consumers to chemicals known to the state of California to cause cancer or reproductive or other developmental harm. Cadmium is included on the Proposition 65 list. Proposition 65’s levels are based upon exposure, so various settlements (known as consent judgments) have established content levels in various articles. Under what is known as the Boelter settlement, decorations on glassware outside the lip and rim area can contain no more than 4,800 ppm cadmium (tested by a digestive test or a separate standard for wipe tests), which is higher than the results I got (for total cadmium, although caveat mentioned above about thin film).

Minnesota also has a law regulating cadmium in paints and the like. Specifically, Minnesota law bans the intentional introduction or incidental presence above 100 parts per million of lead, cadmium, mercury or hexavalent chromium into any pigment, paint, dye, ink or fungicides used or sold in the state after 1998.

Congresswoman Jackie Speier from California also made the CPSC aware of this issue.  It appears that Congresswoman Speier’s efforts were instrumental in the recall.  Given the lack of an applicable regulatory standard, whether the recall was necessary or not is open to debate.

(Please note – I updated this post to clarify the Boelter settlement levels. I inadvertently dropped part of a sentence, so I had a lip and rim area level confused with a non lip and rim area limit.)

(Please note further – While I am an attorney, my testing of these Shrek glasses had nothing to do with my legal practice. My use of the XRF for testing stems from being a former environmental engineer, a mom and a consultant that has access to the device & uses it. I am not involved in any lawsuit or claim against McDonald’s related to these glasses. I have received no monetary benefit from testing these glasses or the recall.)