Understanding the CPSC’s new CPSIA Interim Enforcement Policy – Step 2: Does it have a coating?

Okay, so yesterday I posted about the Consumer Product Safety Commission’s (CPSC) new Interim Enforcement Policy regarding lead paint and lead content limits under the Consumer Product Safety Improvement Act (CPSIA). The threshold question discussed was the determination of whether the product at issue is a children’s product.

If it is a children’s product, then I think the second question is whether the product at issue has any paint or surface coatings. Why does this matter? Because there are different limits for lead in paints and coatings than the general lead content limit applicable to children’s products.

The term “paints and other similar surface coating materials” are defined to mean a fluid, semi-fluid, or other material, with or without a suspension of finely divided coloring matter, which changes to a solid film when a thin layer is applied to a metal, wood, stone, paper, leather, cloth, plastic, or otehr surface. (16 CFR 1303.2(b)(1).) The term excludes printing inks or those materials which actually become a part of the substrate, such as the pigment in a plastic article, or those materials which are actually bonded to the substrate, such as by electroplating or ceramic glazing.

So, once you have determined that the product is a children’s product, then you must determine whether the children’s product has any paints or coatings on any of its parts. If the answer is yes, then for those painted or coated parts, the product must comply with the lead limits for paints and coatings. For those products manufactured before 8/14/09, the lead limit in the paint or coating is 600 ppm. For those products manufactured after 8/14/09, the lead limit in the paint or coating is 90 ppm.

If the product does not meet those standards, it is unlawful to sell, offer for sale, manufacture for sale, distribute in commerce or import the product into the United States. Produdcts that do not comply are banned under the Federal Hazardous Substances Act.

While the requirement for CPSC accredited third party testing for the general lead content has been stayed until 2011, the requirement that CPSC accredited testing for lead in paints and coatings was not stayed. All children’s products with paints and coatings manufactured after 12/22/08 must have CPSC accredited third party laboratory testing to demonstrate compliance with the lead limits for those parts with paints or coatings. So, that means for products manufactured after 12/22/08 must have accredited certification that they meet the 600 ppm limit, and products manufactured after 8/14/09 must have accredited certification that they meet the 90 ppm limit.

The test method to be used is set forth on the CPSC’s website. Note that the CPSC may use XRF testing to screen painted products, but the testing to be done for certification for painted products that required accredited third party testing is a digestive method. To find an accredited laboraty, use the CPSC’s website and use the “narrow the laboratory list” function to identify laboratories accredited for lead in paints and coatings.

Okay, so do you have to test the final product? Well, the CPSIA intends that certification be based upon testing of the final product. So, paint samples have to be scraped off the final product. However, the CPSC has recognized that this may be difficult – particularly for parts that are small. It may mean numerous samples must be destroyed to collect enough of the same paint to test (note that you CANNOT composite (or aggregate) different types of paint for testing). So, the CPSC has staetd that it will allow certification of a children’s product as being in compliance with teh 90 ppm lead paint limit if, for each paint used on the product, the manufacturer or importer has a test report based upon the final product or based upon the paints used on each part. Also, you need to be able to trace each batch of paint used on the product to the paint manufacturer. You have to be able to link up your certification with the paints used.

Note that the lead limits in paints and coatings is not limited to children’s products.

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