Brass Bushings, Brass Bands, Brass Keys, Brass Tacks and Pens
CPSC’s recent decision to deny a petition to exclude brass in toys from CPSIA Section 101 lead provisions has raised much protest. The complaints have focused on at least four issues. Those issues are related and thus can become mingled and confused with each other. The following identifies and separates the four issues.
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(1) Will CPSC limit children’s access to brass musical instruments?
The concern is that now that CPSC has denied an exclusion for brass, then any brass item that children use or contact regularly is in jeopardy. For example, the Washington Timesopines that this might be the case, and quotes the Alliance for Children's Product Safety: “[T]he CPSC's actions call into question the future of school bands. Will young musicians in their school band's brass section now have to hum along with their peers, or switch to the recorder or a (plastic) kazoo?”
Whatever the agency ultimately says about trombones and trumpets, it will be said in the light of a CPSC General Counsel opinion from earlier this year. It made some striking statements about what does and does not cause a novelty pen to be a children’s product subject to the CPSIA. CPSC could apply similar thinking to other products.
The key to the opinion -- as former CPSCer Eric Stone, now with K&L Gates, notedearlier in Product Safety Forum -- is emphasis on the word primarily in the CPSIA's definition of children's product: "a consumer product designed or intended primarily for children 12 years of age or younger." Based on that emphasis, for pens (at least), CPSC's GC stated:
Items that are as likely to be used by adults as by children are general purpose not children’s items.
Price point and marketing of an item can suggest that it is intended for both adults and children, meaning it is not a child’s item
Colors, decorations and embellishments do not necessarily make the item a child’s product.
Application of a school’s name does not necessarily make it a child’s product.
Application of a cartoon character does not necessarily make it a child’s product.
Occasionally marketing an item for school use does not convert a general purpose item into a children’s product.
Would CPSC apply this thinking to musical instruments? Perhaps. It's certainly easy to create an analogy between pens and trumpets. The answer depends, as Stone observed, on whether CPSC sees the opinion as a precedent or as narrow relief carved out primarily or exclusively for pens.
If it is a precedent, it is significant that two of the five commissioners have supported the thinking – more so because they are from opposite parties and have sometimes opposing voting records that indicate different thinking about the CPSIA. Though ultimately casting opposing votes on the petition behind the GC’s opinion, Commissioners Nancy Nord and Thomas Moore nonetheless agreed with CPSC lawyers that most pens would not be covered by the CPSIA. The other three commissioners were not sitting at the time, but they seem to be in general agreement with either Nord or Moore on CPSIA matters.
Other Product Safety Forum stories on the pen opinion are here and here.
(2) Should CPSC have discretion to assess risk of lead absorption?
This question goes to the heart of much of the criticism and concern about the CPSIA. It is what Commissioner Anne Northup attempted to address when she unsuccessfully sought a reading of absorption of any lead in the statute as a de minimis standard that allows a negligible amount of lead for which there is virtually no chance of absorption or change to blood lead level.
(3) Should the law distinguish between children’s products and general-purpose products?
The Wall Street Journalwrites about the Learning Curves decision “…the language of the law says the Commission can't consider risk in granting exclusions. Any potential absorption of lead at all is grounds for a ban, despite its presence in other common brass fixtures kids get their hands on regularly, like … keys.”
Of course, this is not entirely true. CPSC can and does assess risk in the matter – risk of accessibility. Once the sharps probe establishes risk of contact, then there is little discretion. This regulatory scheme (accessibility mandates action) is not new for CPSC when dealing with children’s items. It long has applied it to the regulation of small parts/items and to sharp/pointed items in children’s products.
While the Wall Street Journal’s at first reading might seem to be complaining about the lack of discretion related to absorption (once risk of contact is assessed), the paper really is complaining that the law treats children’s products differently from general-purpose items. Consider the validity of its complaint compared to hypothetical complaints about small parts and sharp items in toys:
Any potential choking at all is grounds for action, despite the presence other common items that fit into the small parts cylinder and that kids get their hands on regularly, like keys.
Any potential skin cut at all is grounds for action, despite the presence of other common sharp items that kids get their hands on regularly, like thumbtacks.
The pertinent question, of course, is whether brass is a hazard, not whether CPSC should treat children’s products differently from general-purpose items. Nonetheless, the latter question is used criticize the currently very stringent application of CPSIA Section 101.
(4) Should CPSC apply stronger rules to barely accessible items than it does to components of the same material that are intended to be regularly mouthed?
This question also is behind the musical instrument complaint. It’s much harder to dismiss than the issue of treating toys differently from keys.
If the thinking in Question 1 above turns out to be how CPSC handles musical instruments (that the majority are general purpose items not subject to CPSIA lead-content regulations), then CPSC will be regulating barely accessible components more strongly than it items intended to be mouthed.
Leaving aside the CPSC-vs-FDA jurisdiction issue, imagine the outcry if bisphenol-A (BPA) were barred in barely accessible toy components but allowed in microwavable food containers simply because food containers are general purpose items regularly used by – but not primarily intended for – children.
This issue illustrates the damned-if-you-do-damned-if-you-don’t dilemma CPSC faces here. It either treats musical instruments as children’s products, thereby restricting the market, or it treats them as general-purpose items, thereby giving more lenience to items intended to be mouthed than it does to hard to access parts.
Sean Oberle is publisher of Product Safety Letter, Product Safety Forum, and Product Safety Daily. Reach him at (301) 229-1027, seanoberle@productsafetyletter.com
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