Lead testing for children's products

Jewelry Discussion
1

Hi folks,

I’m not sure how relevant this is, but I know I’ve had orders for
jewelry for children under 12 on more than a few occasions. I don’t
make jewelry for children as a matter of course, but I think there
are a few out there who do.

The below came to me in an email from craftlisters.com

What is happening?

HR 4040 - This will mandate expensive lead testing on all
individual products for children, including handmade crafts.

What you can do:

Write to CPSC by Jan 30th 2009:
http://www.cpsc.gov/ABOUT/Cpsia/ComponentPartsComments.pdf

Vote on Jan 5th 2009:
http://change.org/ideas/view/save_handmade_toys_from_the_cpsia

Recent messages to CraftLister:

I received your posting about the CPSC regs on lead and
children's items. The scope of this situation is missing
from your email. It is not just toys that are affected. ANY
item that a child to 12 years of age might come in contact
with must be tested. Saying that an item is for children over
12 is not sufficient. If they decide that an item can be used
by a child under 12 it must have been tested. This includes
not only toys but clothes, diapers, car seats (and covers),
furniture, jewelry (even if not children's if usable by
same), etc. The testing is estimated to cost thousands of
dollars. Each lot, size, color must be tested individually
(if one uses lumber, each board is a separate lot, fabric
from different bolts is different lots). Even if one can
afford to pay for the testing, the labs are not interested in
working with small companies the size of most craftspeople.
The item is destroy ed in testing, so one of a kind items can
no longer be made. Items in stock on the date this goes into
affect, February 12, 2009 must meet the requirements or be
destroyed. Under this law not only will most of us who make
items remotely usable by children be out of business, the
price of items sold same will skyrocket in price. It is
urgent that implementation of this law be stopped. A good
idea has gone ridiculous. 


I spoke directly with the CPSC at length on 12/31. It is not
just importers, it is everyone who deals in ANY children's
products. Crafters/artisans ARE considered manufacturers. 

There is a ballot vote being held on 1/5 to discuss natural
materials such a wood, cotton, etc. for exemption. But only
items that contain NO other materials would be exempt. So if
you attach anything, paint the item, etc. it must be tested.
2

This is a major issue that may end up giving many of us fits before
it gets resolved. Congress in its rush to “do something” has created
a royal PITA. The testing is expensive (3-4 thousand per test) and
there appears to be no common sense in the directives. MJSA is
trying to get on compliance together. It is truly an
onerous piece of legislation.

Jim

James Binnion
James Binnion Metal Arts

3

My brother is a quality and regulations compliance specialist in the
pharmacy/software area. I sent the original post about this to him,
and here is his response:

Quick question: Do you typically use any materials that contain
lead at a level greater than 100 ppm? If not, then you should be
ok with having certifications from your suppliers that your
supplies do not contain lead in excess of 100 ppm - see:

http://www.cpsc.gov/library/foia/foia09/brief/leadprocedures.pdf 

As for the church bazaars (I had asked if they were going to
police church and school bazaars, craft fairs, etc.) - nope, they
won't. First off, a lot of that is probably not interstate
commerce (different for the craft fairs). Anything that's not
interstate commerce is, by definition, not under the jurisdiction
of the federal government (that's a state government issue). 

As for the craft fairs, no, they won't be doing that, either -
they're stretched thin enough as it is. Much as we have laws
against speeding but too few cops to make sure *no-one* speeds,
there are plenty of laws on the record that are there mainly to
provide an avenue of prosecution if something goes wrong. This
looks like one of them. 

More on them being stretched thin (and on certification):
http://www.cpsc.gov/businfo/frnotices/fr09/certification.pdf 

Money quote: 

    "While the Commission expects every company to make best
    efforts to comply promptly with the new general certificate
    requirements, the Commission's resource limitations under
    the continuing resolution will force it to focus more on a
    product's compliance with our safety rules." 

Translation: if your products meet or beat the 600/300/100 ppm
standards, then the CPSC won't be knocking on your door any time
soon. If, however, there's a complaint that something you made
exceeded the standard (and that item was designed for children) -
you have liability problems. 

I'd suggest that you and your fellow artisans band together and
demand, from your suppliers, that they provide you with
certificates indicating that your supplies are within the
allowable limits. That takes the onus off you and puts it where
it should be anyway - with your suppliers. 

I'd also recommend you voice your concerns directly to the
Commission and to the Small Business Ombudsman. It seems that, as
"domestic manufacturers," being able to provide certification of
your materials should provide the low-lead-toxicity the CPSC is
looking for. If there needs to be a minor tweak in the law in
order for this to happen, then definitely get on the horn with
the senators and representatives; should be an easy fix.

Hope this helps others. I have followed the original links, and one
of them leads to a link where you can make an e-mail response to the
authority fine-tuning the regulation. I suggest everyone do this.

See: Write to CPSC by Jan 30th 2009:

http://www.cpsc.gov/ABOUT/Cpsia/ComponentPartsComments.pdf

The pdf contains the e-mail address to use; it did not function as a
link for me, I had to copy and paste.

Note this is just my brother’s opinion, not a legal statement of
advice. Your mileage may vary.

Beth Wicker in foggy SC getting ready for a pile of teenagers to
come for a bonfire, hamburgers and s’mores

Three Cats and a Dog Design Studio

http://bethwicker.ganoksin.com/blogs/

4

For example if you use brass you are going to be over the 100 ppm
limit (yellow brass can contain up to 700 ppm commercial bronze up to
500 ppm). So things you don’t necessarily think of as being a lead
containing product are potentially a problem. This is going to affect
those that sell to larger stores more than the small crafts person
but larger stores are going to be requiring that their suppliers
(that means us) start to provide certification of lead limit
compliance.

Jim

James Binnion
James Binnion Metal Arts

5

Here in Portland, OR there was a spot on the news this evening
saying that even small shop owners who were providing there own
products would have to pay for the testing to verify that their
products were “lead free”.

Small shop owners were saying that the fees associated with this
would put them out of business.

Larry E. Whittington

6

Orchidians:

The good news related to lead testing for children’s jewelry is
this: As an earlier poster reported, the Consumer Product Safety
Commission staff has proposed an exemption for certain materials,
including precious metals and most (I think) The board is
voting on it and, if approved, the proposal will be posted in the
Federal Register for public comment.

MJSA has worked very hard to persuade the regulators on this issue,
and it looks like there may be light at the end of this tunnel.

You can read the proposal at
http://www.cpsc.gov/about/cpsia/cpsia.html#whatsnew. It’s the second
item down under What’s New.

The bad news: Many other important details remain up in the air,
such as how frequently samples of a product line must be tested. For
small-production jewelry makers, that’s a huge question: Will one out
of every small batch have to be tested, at a cost of $15-$20 per
test? (The tests, by the way, destroy the sample.) The legislation,
as I read it, was written with large-scale production in mind, but it
does not exempt small shops.

There are concerns within the industry regarding the definition of
children’s jewelry, too. If you sell a gold-fill crucifix and chain
with an adult market in mind, should you treat it as a children’s
product because it’s a common first communion present? And lots of
girls under 12 receive, buy and wear costume jewelry – earrings and
such – that was not created for their age group.

Also, no exemption has been created to date for the leaded crystal
that so many jewelry manufacturers use.

MJSA is continuing to work on these issues and will try to provide
members with guidance on navigating this minefield. A panel of
experts will discuss the legislation and what it means for jewelry
makers at MJSA Expo New York March 8-10. I strongly recommend
attendance, but if you can’t, please don’t rely on a three-minute
newscast or a 150-word newspaper story for the details. This is
complicated, and those reports cannot address it in the detail that
you need. (I’m not criticizing the media, by the way. It’s just that
I spent 25 years in the newspaper business, and I know its
limitations.) Do some Internet research, and look for the February
MJSA Journal, which will have an update on the situation.

Some other things to consider:

  1. Questionable advice is floating around the industry. For example,
    the legislation specifically says the manufacturer or importer is
    responsible for testing and certification. “My supplier said it was
    OK” may not fly. And while the CPSC does not have the resources to
    police craft fairs, you could face trouble if a parent, state health
    agency or a lawyer sniffing around for business decides to check up
    on compliance. The penalties are stiff, and the lead standard won’t
    be that hard to violate inadvertently. It starts at 600 parts per
    million on Feb. 10, falls to 300 ppm in August, and may fall as low
    as 100 ppm in 2011. At those lower levels, a bit of bad solder or
    shop contamination could put you over the limit.

  2. While the CPSC did, indeed, say it was concerned more with safety
    than by-the-book certification, it was talking about the brief period
    in which SELF-certification is required (Feb. 10 to mid-March 2009)
    because third-party labs would not yet be accredited.

  3. Do you paint or otherwise “coat” your jewelry? If so, then you’re
    subject to the lead-paint provisions of the act.

  4. Be prepared for galleries and other buyers to ask for
    certification in the interests of CYA (that’s “cover your…”).
    Several MJSA members have faced that demand already.

  5. It’s not official policy yet, but the CPSC counsel says she sees
    no exception in the act for items that were in inventory before Feb.

  1. It appears that anything for sale on Feb. 10 and beyond must be
    in compliance, regardless of when it was made.
  1. This is not an interstate commerce issue. The law preempts state
    regulations everywhere but California, which has similar
    restrictions already.

All is not doom and gloom, of course. The CPSC is not deaf to the
needs of jewelry makers, and several federal legislators have lined
up behind the industry on this. (I second the exhortation to get
involved and write letters to the CPSC. Write to your legislators,
too.) This may yet come to a workable end. But if you create jewelry
that could be construed as a product for children, don’t make any
assumptions.

Gerry Davies
Managing Editor
MJSA Journal

7

Just wanted to let everyone know that the government has declared a
“time out” to review the CPSIA testing rules that were scheduled to
take affect requiring testing of products that might be used by
children, including handmade jewelry and other craft items.

Lots of blogs and twitters out there with details.

Beth Wicker
Three Cats and a Dog Design Studio

http://bethwicker.ganoksin.com/blogs/

8

Sorry to say it, but the “timeout” for the Consumer Product Safety
Improvement Act specifically excludes the metal used in children’s
jewelry. The 600 parts per million limit for lead took effect Feb.
10, as scheduled. Third-party testing by an accredited lab will be
required in mid-March.

The good news: The campaign for a precious metals exemption shows
signs of bearing fruit. The Consumer Product Safety Commission staff
proposed pretty much what MJSA asked for (though we have concerns
about the wording), and the CPSC says it will conduct its
enforcement policy as if the rulemaking has been finalized. Its
guidance says: “The Commission staff has begun to identify materials
whose lead content is consistently below the limit of 300 ppm (the
limit that becomes applicable in August 2009). These include certain
natural materials, such as wood, cotton, and wool, as well as certain
metals and alloys. Until the Commission promulgates a final rule
announcing its determinations on these materials, the Commission’s
Office of Compliance shall not prosecute any person for
manufacturing, importing, distributing, selling or offering for sale
a children’s product on the basis that it contains more than 600 ppm
lead in any material as to which the Commission has made a
preliminary determination in the January 15, 2009 proposed rule
unless the Director of Compliance finds that (1) such person had
actual knowledge that the product contained more than 600 ppm lead in
such materials; or (2) continued to manufacture, import, distribute
or sell such children’s product after being put on notice of its lead
content by the Commission staff.”

Stay tuned.

Gerry Davies
Director of Communications
Manufacturing Jewelers & Suppliers of America

9

I just saw this listed in the Fire Mountain Gems catalog. It is a
LeadCheck Testing kit that sells for 34.95 if you only buy one item.
The order # is D29-3308BS I have no idea whether it works well, or
whether it is adequate for the government regulations re. lead
testing for children’s jewelry, but I remember that there was some
talk about the cost of lead testing, and thought someone would be
interested.

Bev Ludlow
Renaissance Jewelry
http://www.wirewrapjeweler.com/
http://www.craftersofcalifornia.com
http://www.bhlwebdesign.com/

10

LeadCheck would not be adequate for compliance with the new lead
law. After March 23 you will have to use a third-party lab, and the
lab will grind up the sample and dissolve it in acid.

I believe LeadCheck is designed mostly to check the paint in your
home for lead.

Gerry Davies
Director of Communications
Manufacturing Jewelers & Suppliers of America