CPSIA Update: No Regulatory Relief for ATVs; Congress Must Act

By April 2, 2009Economy, Regulations

I’ve had everybody from toddlers to teen-agers in there, and I’ve yet to witness anybody chewing on a bike or eating on a bike or licking a bike or anything to get the ingesting lead. 

— Steve Burnside, owner of DSD Kawasaki in Parkersburg, W.V., speaking April 1 at the “Amend the CPSIA” rally on Capitol Hill.

But they might touch a valve stem or battery terminal and then touch their mouths, and while the amount of lead would be infinitesimal and pose no possible risk to anyone’s health, because of that possible contact, $1 billion worth of ATV and motorcyle business is blocked. The law, the Consumer Product Safety Improvement Act, says so.

The staff of the Consumer Product Safety Commission on Wednesday recommended against providing an exemption for ATVs to the lead content requirements, an exemption requested January 27th (petition here) by the major companies in the industry (Honda, Suzuki, Arctic Cat, Bombardier Recreational Products, Kawasaki, Polaris, and Yamaha).

The law ties their hands. From the staff recommendation to the CPSC commissioners:

Prior to enactment of the CPISA, the staff assessments of lead-containing children’s products under the Federal Hazardous Substances Act (FHSA), were based on estimates of lead intake and the subsequent effects of the exposure on blood lead level, considering the toxicology of lead and the demonstrated health effects associated with increasing blood lead levels. Regulation of a consumer product as a “hazardous substance” under the FHSA requires assessment of exposure and risk from reasonably foreseeable use and abuse of the product. In this case, given the assessment provided by the requestors, the staff likely would have concluded that the estimated exposure to lead from children’s use of motorized recreational vehicles would have little impact on the blood lead level. Accordingly, based on the staff’s assessment, the staff would have recommended the Commission not consider the product to be a hazardous substance to be regulated under the FHSA.

However, the CPSIA establishes the standard by which the staff evaluates the materials submitted with a request for exclusions. The law states that an exclusion may be granted if lead in such product or materials will neither (a) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing breaking, or other children’s activities, and the aging of the product; nor (b) have any other adverse impact on public health or safety.

Because the requesters’ report indicated that children’s use of motorized recreational vehicles could result in intake of lead, and therefore absorption, however small the absorbed amount, the staff’s initial recommendation to the Commission is to not grant the request on the grounds that the statutory standard has not been met.

That’s the law: No products for children under 12 may be sold if there’s a possibility, however remote, that ANY lead will be absorbed.

As Tim Buche, president of the Motorcycle Industry Council, puts it in a commentary, “The Power of Three-Letter Words — How ‘Any’ Changes the Lives of Hundreds of Thousands of Americans.”

Congress needs to remember that’s not just business or manufacturers or retailers being damaged by a badly written law. It’s hundreds of thousands of Americans. Like Steve Burnside, his employees and his customers:

What people don’t understand in our world, what we do, this off-road segment of riding, motorcycles, ATVs, it’s used by everybody for farming, fishing, hunting …to just fun.

That’s the biggest segment of our business, by far and away. This past couple years in this downturned economy, we’ve suffered some losses already that have been tough to overcome. Now we’ve had somewhere to the tune of 25 to 35 percent of our business jerked out from underneath us, waiting for this spring to be our salvation for a downturned economy in the fall of ’08 – doesn’t appear it’s going to happen.

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