CPSIA Update: Back to Crayons for You, Boys and Girls

A conversation…

Bobby, what are you doing? What’s that?!

I’m writing a letter to Gramma, Mom, thanking her for the pen she sent me for my birthday. Here, listen: “Thanks, Gram, for the really nice pen. I’m even using it to write this letter to you. It’s neat.”

Bobby, NO! You’re only 10 years old! I put that pen away for a reason: Don’t you know you’re not allowed to use a pen until you’re 13? It’s illegal.

What? I can’t use a pen? That’s STUPID.

Well, maybe it is. But Congress passed something called the Consumer Product Safety Improvement Act, and it makes it against the law to manufacture and sell pens that might have even the littlest, tiny bit of lead in some of the metals. It looks like your ballpoint pen — and it is a nice one — has a metal tip that probably wouldn’t meet the law’s limits.

But it’s not dangerous, is it? I’m not going to stab anybody or eat it or anything. I haven’t written on myself since I was a little kid!

No, it’s not dangerous. But Congress passed the law and we have to respect the law. Here. Now give me the pen. I’ll put it away until you’re older. Use these crayons instead.

Alas, no joke. The Consumer Product Safety Commission has before it yet another petition for exclusion from the lead content restrictions imposed on children’s products by the Consumer Product Safety Improvement Act. (CPSIA)

The Writing Instrument Manufacturers Association has requested an exclusion from the law’s application to the metal tip that holds the ball in ballpoint pens. (Petition here.) Although there’s no risk of harm to children, brass tips may contain a small percentage of lead in the metal alloy and therefore fall under the CPSIA’s limits on lead content in products meant for children 12 and under. Effective Aug. 14 the law sets lead-content limits for children’s products at 300 ppm.

In its analysis and recommendations to the commissioners, the CPSC staff found no realistic health risk from the lead in ballpoint pens. They wrote that if the Federal Hazardous Substance Act still governed the CPSC’s legal oversight of children’s products, the staff would have recommended an exclusion for ballpoint pens.

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 material 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 requestor’s report indicated that children’s use of ball point pens could result in absorption of lead, 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.

The operative word is “any.” The law forbids the CPSC from granting an exclusion if there is a possibility of any lead being absorbed into the human body. That’s an absolute ban.

In previous industry petitions — recreational vehicles, bicycles, etc. — the commission has voted to follow the staff’s recommendations and deny the exclusions, and their votes do reflect the clear statutory language. Commissioners Nord and Moore have tried to make the impact of the law less onerous by granting stays of CPSC enforcement, but that only confuses the issue and does little if anything to ease potential legal liability for the manufacturers.

The CPSC is due to vote on the petition for exclusion by June 2. Then it’s back to school without ballpoint pens. Unless Congress faces up to the fact that the CPSIA was a badly written law that needs to be fixed.

Kids, send your Congressman a letter. And hurry! Otherwise, you’ll be writing to them in crayon.


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