TheSmartMama – CPSIA Solutions – XRF Testing for Lead Content CPSIA Compliance

Okay, so this is a service pitch.  Just skip it if you are not in the market for lead content testing. 

As you know, the Consumer Product Safety Improvement Act (CPSIA) of 2008 set mandatory lead content standards for all children’s products sold or distributed for sale in the United States, among other requirements. While the testing and certification requirements are stayed, you still cannot distribute in commerce any children’s product, or any part of a children’s product, that exceeds 600 parts per million (ppm) lead. That level drops to 300 ppm. 

Trying to figure out whether your products comply?  TheSmartMama provides x-ray fluorescence (XRF) screenings for lead content to support certification claims for CPSIA compliance.  I can provide handheld XRF screenings in my facility (you mail the product) or onsite at your location – whether it be your sales showroom, your warehouse or your store.   

XRF testing is non destructive and is relatively quick.  Components identified with levels of lead potentially of concern can be further tested for lead content, or can be replaced.  The XRF testing is recognized by the CPSC for lead content testing.  Please note that lead in metal children’s jewelry and lead in paints and coatings must be tested using 3rd party accredited testing.  Also, XRF screening cannot identify phthalates.

Court Finds CPSC Is Wrong: CPSIA Phthalate Ban is Retroactive

Well, it is going to be difficult over the next week for retailers and manufacturers.   

The United States District Court for the Southern District of New York has sided with plaintiffs National Resources Defense Council (NRDC) and Public Citizen, Inc., in their suit against the Consumer Product Safety Commission (CPSC), ruling that the Consumer Producct Safety Improvement Act’s phthalate ban is indeed retroactive.  Yes, that’s right, with 4 days to go before the looming deadline, the CPSC’s General Counsel’s opinion that the phthalate ban did not apply to existing inventory has been thrown out by the Court.

To catch you up, on February 10, 2009, in addition to the lead content limit for children’s products, a ban for certain phthalates goes into effect for toys and child care articles.  The term “toys” may be self evident, but the term “child care articles” means those items intended for children under the age of 3 that facilitate sleeping or eating.

So, the CPSIA provide that as of February 10, 2009, certain phthalates are banned in toys and child care articles.  The question was whether that ban applied to existing inventory – items already manufactured.  An opinion from the CPSC’s General Counsel had determined that while the lead content limit was retroactive, the phthalate ban was not.  That is, that the limit of 1,000 ppm for the 6 phthalates only applied to products manufactured after 2/10/09.  Everybody has been operating based upon that premise. 

The NRDC and Public Citizen, Inc., challenged that decision by the CPSC’s General Counsel in court.  And the Court agreed with the NRDC and Public Citizen, and strongly disagreed with the CPSC’s position.  I won’t bore you with the details, but the Court slams the CPSC and its General Counsel, finding that the General Counsel’s opinion was entitled to no deference.  Which is interesting because usually courts defer to agency interpretations.  Okay, well perhaps that is only interesting to a lawyer.

But, in sum, the Court granted the plaintiffs’ summary judgment motion, and ordered the CPSC’s decision that the phthalate prohibition is not retroactive set aside.  (In fact, it is no longer available on the CPSC’s website.) 

What does this mean?  As of right now, the phthalate ban will apply to existing inventory on February 10, 2009.  So toys and child care articles cannot contain DEHP, DBP or BBP in excess of 1,000 ppm.  And DINP, DIDP and DnOP cannot be in excess of 1,000 ppm in toys and child care articles that can be placed in a child’s mouth or brought to the mouth and kept in the mouth so as to be sucked or chewed.

CPSC Announces Stay of CPSIA Certification and Testing Requirements

Today, the Consumer Product Safety Commission (CPSC) approved a stay of certain certification and testing requirements under the Consumer Product Safety Improvement Act (CPSIA).  Basically, the CPSC has stayed the CPSIA provisions that require manufacturers (and importers of foreign produced goods) to test and certify children’s products for lead content or phthalates beginning on February 10, 2009. 

However, the lead content limit of 600 ppm is still effective.  Beginning on February 10, 2009, all children’s producgts must meet a lead limit of 600 ppm.  This stay does not change the requirement that children’s products cannot be distributed in commerce if they do not meet the lead limit.  What the stay changes is that you don’t have to test to figure that out.  So, if you have certified organic fabrics, you may have enough information to determine that your products satisfy the lead limit.  But, if you don’t have information about your products, then you may still need to test to verify that your products meet the lead limit. 

The CPSC warns businesses, particularly microbusinesses and hand crafters, of certain components, such as zippers, that may fail the lead limits.  In my XRF testing experience, the components that may fail are rhinestones, crystals, zipper pulls, zipper bases, zipper stops, grommets, snaps, metal closures, pearl or opalescent plastic buttons, vinyl (stabilized with lead) and eyelets.  Some screen prints may also fail.

The stay also does not effect the ban on certain phthalates in toys and child care products.  Toys and child care articles manufactured after February 10, 2009 cannot contain the certain phthalates above 1,000 ppm.  But, you don’t have to test to figure that out.  You may need to test if you can’t otherwise determine whether your products contain any of the 6 phthalates, but you don’t have to do so. 

The stay does not change certain standards already in place.  The third party testing requirements for lead in paints and coatings, lead in metal children’s jewelry, pacifiers, and cribs are NOT stayed.  Similarly, certain standards related to mattresses, ATVs and flammability in children’s sleepwear are not changed.

CPSC Announce Stay of Testing and Certification Requirements


CPSIA FAQ #2: Do I have to test products manufactured before February 10, 2009?

Updated January 15, 2009.  My husband actually read my blog, and said my answer below wasn’t that clear.  So I’ll try again.

Second in my so far pretty popular Consumer Product Safety Improvement Act (CPSIA) frequently asked questions is:

FAQ #2:  Do I have to test my existing inventory for lead?

So, as you probably know if you are even reading this post is that on February 10, 2009, the CPSIA establishes a lead content limit for children’s products of 600 parts per million (ppm).  For items manufactured after that date, and before August 14, 2009, the manufacturer of domestically produced products and the importer of foreign produced products must issue general conformity certificates (GCCs) certifying that the products meet that 600 ppm lead content.

Additionally, the CPSIA interprets the February 10, 2009 600 ppm lead content limit to apply to all children’s products, regardless of when they are manufactured.  In other words, the CPSIA is retroactive.  This is because the CPSIA defines those products that don’t meet the lead limit as being banned hazardous substances, and banned hazardous substances cannot be distributed in commerce.

But do you have to test products manufactured before 2/10/09? Not necessarily. The law itself doesn’t require you to test. You just can’t sell products that exceed the 600 ppm limit.  But the law doesn’t dictate what information you use to make that determination – you could use suppliers’ certifications.  You could use your knowledge about the manufacturing and components, provided it is informed.  And you can test.  According to CPSC spokesperson Julie Vallese in some raw interview footage, you just need to make an “informed decision” and have a “level of confidence.”

The no testing but can’t sell if limit exceeded may be a distinction without a difference.  You can’t legally sell children’s products that don’t meet the limit, and you may not have any idea without testing.  For most companies and businesses with inventory, they are going to have to do some form of testing, or get the information from the appropriate supplier.  You really don’t want to be arguing in court (such as a claim from a competitor for unfair competition) that you just looked at the products and made a decision.

Of course, if the product is a coated or painted product, it is subject to the lead in coatings rule and is subject to 3rd party accredited testing as of 12/22/08.

CPSC’s So Called Exemption for Resellers, Thrift & Consigment Stores

The Consumer Product Safety Commission (CPSC) released its highly anticipated guidelines for resellers of children’s products, thrift stores and consignment stores on January 8, 2009 under the Consumer Product Safety Improvement Act (CPSIA).  Many had hoped for a complete exemption from the CPSIA’s retroactive lead ban, although the law itself doesn’t really allow that.

And many are now claiming that the guidelines are an exemption for resellers, thrifts and consignment stores.  But that is far from the case.  All the guidelines do is restate the law. The guidelines repeat that the lead limit of 600 ppm applies to all children’s products on February 10, 2009, regardless of when manufactured. The guidelines state that:

Under the new law, children’s products with more than 600 ppm total lead cannot lawfully be sold in the United States on or after February 10, 2009, even if they were manufactured before that date. The total lead limit drops to 300 ppm on August 14, 2009.

The guidelines recognize that a business does not have to test those children’s products manufactured before February 10, 2009 to determine whether the items comply.  But if the items don’t comply, you can’t sell them and face penalties if you do.  The guidelines state:

The new safety law does not require resellers to test children’s products in inventory for compliance with the lead limit before they are sold. However, resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.

That really doesn’t get you much.  How do you know?  The guidelines say watch out for traditional items that have been recalled or have lead in paint, but what about the other items?  Most thrift stores don’t have a clue.

If you are curious about what items could contain lead, my experiences with XRF testing suggest that the following children’s products can exceed 600 ppm lead: 

  • vinyl items when stabilized with lead & you can’t tell by looking at the item what was used to stabilize the item, unless the vinyl is clear – clear vinyl doesn’t have lead.  So, vinyl can be found in faux leather, shoes, purses, toys such as dolls and dinosaurs, and similar items.  Also look for vinyl wrapped wires or metal pieces in toys, such as those bead chasers that run on a vinyl wrapped metal piece.

  • pearl like or pealized buttons on clothing.

  • brass buckles on belts and similar items.

  • crystal adornments or embellishments.

  • paint on inexpensive toys, particularly camoflage paint for some reason.

  • some snaps or similar metal closures.

XRF Testing Services for CPSIA Compliance

Updated May 17, 2009 

TheSmartMama offers XRF testing services for lead content for compliance with the Consumer Product Safety Improvement Act (CPSIA). 

I offer the services by mail and in person. The cost is $5 per test or $100 per hour. Generally, hourly rate is more cost effective. I photograph the product to be tested, and prepare a report with the photograph and the XRF test results by product part. I provide the calibration information for quality control on the XRF test report. This test report can be used for the general conformity certificate (GCC). 

Generally, the manufacturer (or importer) prepares the GCC because there may be requirements in addition to the lead content. Remember, the GCC is supposed to certify the product for all applicable regulations. So, for example, all clothing is supposed to make the flammability requirements. Virtually all clothing, with the exception of children’s sleepwear, meets this requirement BY THE EXEMPTION for weight of fabric – that’s why you never worry about it. The GCC should reflect both the lead content certification and the certification for weight of fabric exemption for flammability. 

Because of the stay of testing and certification, you still do NOT need to do third party accredited testing for most children’s products. Yes, third party testing is required for lead in paints and coatings manufactured after December 22, 2008. Yes, third party testing is required for lead in metal children’s jewelry manufactured after March 23, 2009. But, for most children’s products, lead content testing can be performed using XRF technology, at least until the stay expires on February 10, 2009. 

What is XRF Analysis? 

I use a Niton XRF analyzer.  X-ray fluorescence basically involves exciting the electrons in elements and reading the characteristic energy emitted.  The Niton XRF analyzer can read lead, cadmium, chromium, etc. 

XRF and the CPSIA 

XRF testing can be used to comply with certain provisions of the Consumer Product Safety Improvement Act (CPSIA).  Specifically, XRF can be used to determine whether existing inventory is compliant with the lead content limit for children’s products.  The Consumer Product Safety Commision (CPSC) has explicity stated that XRF can be used as the basis for a reasonable testing program for lead content in children’s products.

CPSC Proposes Exempting Certain Materials from Lead Content Testing

On Christmas Eve, the Consumer Product Safety Commission (CPSC) offered some manufacturers a Christmas gift and some holiday cheer – a proposal to exempt certain materials from the lead content requirements of the Consumer Product Safety Improvement Act (CPSIA).

Basically, the CPSC staff is proposing that the CPSC find that certain materials do not contain lead at levels that exceed the newly established lead content limits for children’s products.  Those limits are 600 parts per million (ppm) effective February 10, 2009, and then the lowered limit of 300 ppm that will go into effect on August 12, 2009. 

What this means is that the materials will NOT be subject to testing requirements to establish lead content because they will be deemed by definition not to exceed the limits.  However, the proposed rule is limited in scope.  It applies only to certain natural materials that are untreated and unadulterated by the addition of materials or chemicals including pigments, dyes, coatings, finishes or any other substances and have not undergone any processing that could add lead.

The materials are wood; natural fibers such as cotton, silk, wool, hemp, flax and linen; precious gemstones such as diamonds, rubies and emeralds; certain semiprecious gemstones provided that the mineral or material is not based on lead or lead compounds; natural or cultured pearls; and other natural materials such as coral, amber, feathers, furs and untreated leather. 

The CPSC has also proposed that surgical steel and precious metals be exempted provided that no lead or lead containing metal is intentionally added and that the determination not extend to the non-steel or non-precious metal components of a product such as solder or base metals in electroplate, clad or fill applications.

The proposal must be voted on.  Votes are due by January 5, 2009.

This is good news for many, particularly those using undyed, untreated organic fabrics.  But, again, the ruling is limited.  Most manufacturers do something to natural materials – stain, dye, ink, or something.  And such treated natural materials will NOT be exempt from meeting the lead content limits.

But it is a start.  And it is consistent with what I have found.  I have tested a lot of materials and products with my Niton XRF analyzer.  In clothing, I find lead in a decal, or rhinestone, or coating, not the base fabric. 

An article in the Los Angeles Times gives even more hope.  It quotes CPSC spokeswoman Julie Vallese as stating, “the agency is diligently working on providing rules that would define some exclusions and some exemptions.”  This is evident by a companion proposal released by the CPSC setting forth proposed procedures and requirements for CPSC’s determinations to exclude products and materials from the lead content rules.

This proposal sets forth what information the CPSC will require to exempt a product or material.  This will allow the CPSC to implement the portion of the CPSIA that allows an exemption for a product or material from the CPSIA’s lead content limits if the product or material will not result in a child absorbing lead, taking into account normal and reasonably foreseeable use and abuse by a child.


Confusion over the CPSIA – What is covered?

Certain items are also subject to third party testing requirements.  For example, the lead content ban for children’s products must be established by third party testing as of August 12, 2009.  The third party testing requirements are part of CPSIA section 102, but I’m going to discuss the requirements in relation to other sections.

The third part of the CPSIA is a lowering of the limit for lead in paints and coatings from 600 ppm to 90 ppm.  This is effective August 12, 2009.  The limit for lead in paints and coatings applies to paints and other similar surface coatings sold for consumer use in the US, toys and other articles intended for use by children, and certain furniture articles intended for consumer use. This covers everything from chairs and tables to sofas and beds.

The fourth part of the CPISA is a new lead content limit for children’s products. Children’s products are defined as all consumer products intended for use by children. So that means that everything from toys to bedding intended for children to clothing must meet the new lead content limit. In other words, contrary to popular belief, the lead content limit does NOT just cover toys.  I can’t emphasize that enough.

All children’s products manufactured after February 10, 2009 must meet a lead content limit of 600 ppm, and the domestic manufacturer or the importer must issue GCCs based upon testing or a reasonable testing product.  With respect to the “reasonable testing” program for the lead content limit, the CPSC has said that XRF technology can be used.  So, small plug, I do that and will do it by mail so email me if you are interested.

The critical point is that for products in commerce as of February 10, 2009, the CPSC General Counsel has issued an opinion that such children’s products that do NOT meet the 600 ppm lead content limit are considered “banned hazardous substances” and CANNOT be legally sold in the US. I’ve got more on the lead content ban.

Another critical part of the CPSIA is the phthalate ban.  Effective February 10, 2009, certain phthalates are banned in children’s toys and child care articles.  A children’s toy is a product intended for a child under 12 years of age for playing.  A child care article is a product intended for a child under 3 years of age that facilitates sleeping or eating. In other words, if the product is used for sleeping, feeding, sucking or teething, then the phthalate ban applies. The CPSC has stated that the phthalate ban applies to pacifiers, teethers, bibs, crib mattresses, crib sheets and pajamas.

The good news is that this part of the law does NOT apply to existing inventory – only items manufactured after February 10, 2009.  The bad news is that there isn’t a easy technology to use for screening goods for phthalates like XRF for lead.

Finally, CPSIA section 104 relates to durable nursery products.  This requires the CPSC to develop safety standards for durable nursery products such as toddler beds and high chairs.  Just because you are covered by this section does NOT mean you get out of the other sections. Similarly, just because crib sheets are durable nursery goods and are exempted from Section 104 does NOT mean you are exempted from the other requirements.

Okay, there is more to the law, including tracking labels.  But you are probably bored to death by now.

Lots of people are talking about the CPSIA and seeking reform. Be part of the solution.

Disclaimer – None of the foregoing is intended as legal advice. To determine whether the law applies to your particular products, I urge you to consult an attorney.

The CPSIA: Good in Theory, Hurting Small, Favorite Green Businesses in Practice

On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act (CPSIA).  It was drafted as a toy safety law in response, at least in part, to the numerous recalls in 2007 for lead in children’s toys and jewelry.  It was also drafted in response to the tragic death of a 4 year old after ingesting a charm that was almost pure lead.

It was designed to be a toy safety law, but its reach is much, much broader.  And, like all broadly written, reactionary laws, it has very significant, it appears largely unforeseen consequences.  Like perhaps putting out of business thousands of small manufacturers of children’s products, including some of my favorites – the small manufacturers of reusable cloth diapers, natural wood toys, handcrafted costumes, and innovative children’s products.

How can a law that was designed to protect us against the hazards of lead and phthalates result in closing the doors of the very companies that sell the alternative products I love?  

Well, let’s talk a little bit about the law.  Now, the CPSIA has several different provisions.  I’d like to focus on one.  The law creates a new standard for lead in children’s products.  In theory, a standard for lead in children’s products is great.  Everything I could ever want, especially since I routinely find lead in children’s products.  

The problem is in the implementation and testing to demonstrate compliance with that standard.  There are two groups of produts to which this standard applies:  the inventory in existence as of the date the standard becomes effective, and those products manufactured after the date the standard becomes effective.  The 600 parts per million (ppm) standard for children’s products becomes effective on February 10, 2009.  (Just a note – there is a separate standard for lead in paints and coatings.) 

First, let’s talk about what products are covered.  The standard applies to children’s products.  Children’s products are defined to be any product intended to use or marketed to children under the age of 12.  Clothing.  Toys.  Dress up costumes.  Sleeping bags.  Tableware.  Virtually any product that you can think of under the CPSC’s jurisdiction that is intended for use by children under the age of 12. 

Existing Inventory 

Existing inventory are those products already manufactured as of February 10, 2009.  The products on store shelves, on trucks and in boats, and sitting in warehouses.  According to an opinion issued by Cheryl Falvey, the Consumer Product Safety Commission’s (CPSC) general counsel, as of February 10, 2009, all children’s products that do not achieve the 600 ppm standard are considered banned hazardous substances and cannot be sold or distributed in commerce.  She states “[i]f children’s products with more than 600 ppm of lead are to be treated as banned hazardous substances, then the ban is applicable to that at the effective date of that treatment regardless of the date of manufacture of the product.”  Her conclusion?  “Products with more than 600 ppm of lead must come off the shelves no later than Febarury 10, 2009, 180 days after enactment.” 

So, this means all existing inventory as of that date must meet the standard or must be destroyed.  There is a sense of unfairness, since the law is retroactive.  You have to realize that the Spring lines have already been manufactured and shipped.  Many were manufactured and shipped before the law was even signed.  To be honest, I’m wondering if the retailers will seek a bailout.  Do you remember that after chlorinated Tris was banned, President Reagan signed legislation allowing companies to seek federal reimbursement of more than $50 milion in losses? 

Determining compliance for existing inventory is hard.  How do you demonstrate compliance for those products in inventory on February 10, 2009.  Just simply testing all of the products in inventory is expensive, and duplicative, if 10 retailers test the same product.  Third party certification is not required for this inventory, but a person or company will need to know if the products comply with the law.  The sellers at Etsy are up in arms.  So are the sellers on eBay.  There’s a blog out there focused on the CPSIA calling February 10, 2009 National Bankruptcy Day.  The Fashion-Incubator’s forum on the CPSIA has been opened to non-members. 

Part of the problem is that there is a lot of misinformation floating around about the CPSIA.  And one of the pieces of misinformation is that all inventory will have to be tested by an accredited third party at an enormous cost.  And yes, third party testing is extremely costly.  It would be prohibitive for most to complete 3rd party testing for existing inventory.  But it is not accurate to say that 3rd party testing is required for existing inventory – it is not required.  One option is to use an XRF analyzer as part of a reasonable testing program for existing inventory and to issue general conformity statements (for manufacturers).  The CPSC specifically stated this is an option in the FAQ’s for the CPSIA.  (Shameless plug – I can use my Niton XRF Analyzer to test existing inventory for lead.) 

But determining whether inventory meets the lead standard is extremely burdensome and very difficult for retailers, distributors and manufacturers.  Without testing, you really cannot know if a particular product meets the standard.  Plus, this doesn’t even address the financial implications related to loans on inventory – inventory which may not be worth anything. 

New Products 

The second part of the requirement is that all products must be tested by an accredited third party.  This provision applies differently because the CPSIA states that the testing requirement “shall apply to any children’s product manufactured more than 90 days” after the CPSC publishes a notice of the requirements for accreditation for 3rd party testing.  That requirement will apply 90 days after the CPSC publishes its notice – which the law requires that it do for the August 2009 lower standard of 300 ppm lead for children’s products no later than May 16, 2009. 

Until the notice is published, according to the CPSC’s Frequently Asked Questions, children’s products manufactured after 2/10/09, will need a general conformity certification based on a test of the product or a reasonable testing program for products.  (Shameless plug – which is good news for me since my Niton XRF Analyzer can be used to satisfy that requirement according to the CPSC.  So, if you need assistance testing your inventory, I do offer consulting & testing services.) 

But once that 3rd party testing is required, manufacturers, even small manufacturers, are going to have a very hard time.  That testing is expensive.  And how the testing must be performed makes it extremely expensive.  For a very clear explanation of what needs to be testing, what SKUs have to do with it, and unit v. batch testing, read Greco Woodcrafting’s Weblog entitled National Bankruptcy Day

But think about it – does it make sense for an organic cotton t-shirt maker without any decals or logos that might have lead test for lead?  Or a manufacturer of woods toy finished with beeswax test for lead? 

Selecta Spielzeug has already announced it is pulling out of the US market and will cease distributing as of December 31, 2008.  Its decision is based on cost – it cannot afford the new testing requirements for its beautiful wood toys finished with beeswax.  Z Recommends has the details on Selecta’s decision.  Plus, Z Recommends points out those Selecta products previously positively reviewed. 

HABA will not sell its jewelry in the US any longer.  

But I’m more concerned about the small manufacturers profiled at the Handmade Toy Alliance.  Like Fuzbaby, who will not be able to afford testing its resuable cloth diapers.  Or the absolutely adorable Kallisto Organic Bears from Challenge & Fun.  And lots of others too. 

I’ll be posting over at Healthy Child Healthy World on the phthalate portion of the CPSIA next. 

If you are inclined to be an activist, and I think we all need to be to protect the small manufacturers, including work at home moms, write to your legislators to address these implementation problems with the CPSIA.  Handmade Toy Alliance has tips for taking action.  Or submit letters using this link

Here’s the thing – no sane person wants unsafe children’s products.  But tell your legislators that products made from materials unlikely to contain lead should be exempt, such as unadorned textiles and beeswax finished wood.  If you need some pointers and some talking points, Nature’s Child has a great outline.