November 29, 2009

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Narrow exceptions to CPSIA Section 101 lead prohibitions would be helpful, CPSC Chairman Inez Tenenbaum told Rep. George Radanovich (R-Calif), following her September congressional testimony. She wrote that CPSC resources could be more effectively used if there were exceptions “in cases where a component with lead is required for a functional purpose, contact with the lead is infrequent, and the elimination of such component part is impracticable or impossible based on available scientific and technical information. This exception would provide the Commission with greater flexibility.”

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This assessment came in written answers to Radanovich’s questions following the September 10 hearing of the House Commerce, Trade and Consumer Protection subcommittee.

It is unclear if lawmakers have drafted or plan legislation to create such exclusions based on her comments. However, it should be noted that during the hearing, Tenenbaum told Rep. John Dingell (D-Mich.) that it would be premature to say if problematic parts of the CPSIA needed legislative adjustment or if the agency rather could handle them via rulemakings or other administrative action (PSL, 9/14/09, p. 1).

Moreover, elsewhere in the 26-page response to Radanovich’s questions, Tenenbaum referred to “bright-line standards” when discussing what the congressman asserted are possible conflicts between CPSC’s long-standing mission of targeting unreasonable risk and new law’s targeting any risk in some cases, such as it does with lead.

She wrote, “These provisions are not contradictory; rather they express Congressional intent to apply a stricter standard to certain classes of materials and products intended for children. Both the CPSA and the FHSA remain the primary vehicles for addressing non children’s products not covered by the CPSIA and allow the Commission to consider unreasonable risk of injury.”

Furthermore, a risk-based approach to lead in children’s products might not entice Tenenbaum. In answer to Radanovich’s queries about the possibility that some compliant products could have more accessible lead than do some noncompliant products and whether “a solubility standard encompassing risk would be more protective or less protective of children,” Tenenbaum wrote:

A lead content limit that is more than zero could result in some lead exposure in children, depending on the characteristics of the product and the expected interactions between a child and the product. Further, given a particular lead content standard, it is not possible to generalize expected or potential lead exposure for children’s products because of the inherent variability among products and children’s behaviors. A solubility standard would require that a test method be designated and a soluble lead limit be chosen. The choice of an “acceptable” lead exposure level is not straightforward, because there is no known level of exposure to lead that is safe for children.

As well, in response to a question about use of human factors assessments to determine exposure risks – especially with rarely touched items like bike tire stem valves – the chairman explained to Radanovich:

If the Commission were to evaluate products based on exposure and risk…question remain as to the appropriate test methods, the limit for lead solubility or lead exposure that should be designated, and, if the lead content requirement still applies to children’s products, the specific product types that would be subject to an exposure assessment rather than the lead content requirements.

Nonetheless, she noted that CPSC is using risk assessment in enforcement discretion decisions. She explained this fact in answering a question about whether CPSC would be more effective “if the rules permitted it to revert to risk assessment, rather than patrolling compliance with a one-size-fits all standard.” She wrote:

A bright-line standard may be easier to enforce, in some cases, than an approach that is based on risk alone. Where enforcement resources are scarce, however, as is certainly true in the case of CPSC enforcement staff, it is important not to lose sight of risk in deciding where to focus enforcement. Vigorous pursuit of minor violations is not in the public interest if it means that other, higher, risks go unaddressed…CPSC’s Office of Compliance tends to use risk assessment … in enforcements, such as deciding what products to target and what remedies are most appropriate for a particular violation.

CPSC has not yet responded to questions for this story.