As expected the Consumer Product Safety Commission sent its report to Congress regarding the enforcement of the CPSIA (Consumer Production Safety Improvement Act), the instigator of the lead ban that shut down youth OHV sales last year. The January 15th Report to Congress reaffirms the CPSC’s assertion that youth ATV and motorcycles cannot be exempted from the CPSIA in its current state.

As discussed in our interview with AMA Vice President Ed Moreland, the conflict revolves around a three-letter word – “any.” The specific passage in the CPSIA states the CPSC can only exclude a product from the 300 ppm, now 100 ppm, lead limits if it : “will not 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.”

The CPSC reasoned that hand-to-mouth ingestion, however small, violated that “any” clause in the above statement. While the CPSC stands by its strict interpretation of the law, it acknowledges that members of Congress do not, stating in a footnote of its report:

“Some Members of Congress, including members of the Conference Committee on CPSIA, have expressed the view that the Commission’s interpretation of the exclusion provision is more inflexible than Congress intended. They have indicated that the intent of Congress in stating that an exclusion was only permissible when it would “not result in the absorption of any lead into the human body” was to ensure that children could not ingest lead in an amount that would lead to “a meaningful increase in blood lead levels.” Neither the staff, nor four of the five Commissioners have accepted this broader interpretation of the language.

While it refused exemptions for ATVs and motorcycles (refusing all petitions for exemption from affected industries), the CPSC clearly finds the safety cost of banning youth OHV more damaging than the potential lead exposure. In fact, it cites safety concerns as the overriding reason for granting the current stays of enforcement for the OHV industry.

“In each of those cases [youth OHVs and bicycles], the Commission found that the safety of children using these products could be compromised by strict enforcement of the lead limits. The Commission wanted to ensure that youth-sized ATVs remained available to children given the mortal danger presented when children 12 and under use adult-sized ATVs. Likewise, the Commission concluded that the structural integrity of bicycles could require the use of metals
containing lead and the stay provided the bicycle manufacturers with time to find substitute materials that could be used without compromising consumer safety.”

The “mortal danger” of sticking kids on adult sized OHVs contrasts the conclusions of the CPSC’s own scientists, which acknowledge the lead exposure doesn’t merit a significant threat to children. The CPSC report states: “The CPSC scientific staff has told us that they are not aware of any product that could meet the exceptions requirements of the law and hence have had to recommend denial of each of the petitions for exclusions that have been considered. This is in spite of the fact that staff has told us with each petition for exclusion that the products in question do not present a risk of harmful exposure to lead.”

And while the youth OHV issue is germane to the motorcycle industry, the lead ban has affected all youth products – everything from children’s books to ball point pens. Plus the broad interpretation of the law also applies retroactively to used products, decimating industries like second-hand children’s stores, another point the CPSC covers in the report.

The report’s recommendations to Congress are threefold:
1. Craft legislative language that allow more flexibility in the process for granting exclusions. In particular, “the agency needs flexibility to deal with products that contain lead over the statutory limits but which do not present a risk to children.”
2. Consider another alternative to third-party testing for all children’s products due to cost concerns, and the ability of the CPSC to establish “alternative testing requirements… based on small volume or other appropriate criteria.”
3. Do not apply the standard, particularly from 300 to 100 ppm, retroactively – a move which has adversely damaged resale businesses. The CPSC again uses strong language regarding second-hand sales prohibitions stating: “we have been told that many of the charities are not selling children’s apparel because of the potential liability imposed by this law. Obviously, it is crazy for people not to be able to buy their children winter coats or boots at a Goodwill store or at a yard sale.”

Crazy, indeed. For now the lead ban issue remains unresolved and awaiting Congress for a permanent fix. At least, it appears headed in the right direction…

Stay tuned for developing updates on the issue, as well as official responses from the AMA and MIC.