Frequently Asked Questions
Anyone who makes, produces or assembles a product is
considered to be a manufacturer. If what you make is sold or
donated, something as simple as adding ribbons to hair clips,
knitting hats, or stringing beads into necklaces makes you a
manufacturer. Under the law, importers are also considered to
be manufacturers and must meet the same requirements.
Yes, the law covers all manufacturers and importers large and small, domestic and
foreign. All businesses, including handmade toy and apparel makers, crafters, those
making charitable donations, and other small business must take appropriate steps to be
sure that their products conform to all aspects of the law and safety standards, including
the new lead content and phthalates limits and mandatory toy standards.
A children’s product is one designed or intended primarily for children 12 years of age or younger. Toys, clothes,
furniture, books, jewelry, blankets, games, CDs/DVDs, strollers, and footwear may all be considered children’s
products.
In determining whether a consumer product is “intended primarily” for a child 12 years of age or younger, the
following factors will be considered:
- A statement by the manufacturer about the intended use of the product, including a label on the
product, if such statement is reasonable.
- Whether the product is represented in its packaging, display, promotion or advertising as appropriate
for use by children 12 years of age or younger.
- Whether the product is commonly recognized by consumers as being intended for use by a child 12
years of age or younger.
If a product is intended for adults or for general use by consumers of all ages, then it is not intended primarily for children. Products marketed and priced in a manner that would not make them appropriate for use by a child would
also not be intended primarily for children. An example would be an expensive telescope because it is sold for general use by all ages, it is not a children’s product even though it can be used by a child on occasion.
Manufacturers must be aware of all the standards and testing requirements of the law and take appropriate steps to
ensure that they meet not only the current requirements, but also are preparing themselves and their products to
meet future requirements (see Table A). As an example, children’s products that are painted are subject to both lead
paint and lead content limits, though at this time, testing is not required for lead content but it is for lead paint. It
should be noted that manufacturers must already be testing and certifying for lead in paint, as well as standards for
small parts, cribs and pacifiers.
Where testing is required, manufacturers and importers of children’s products must test their products using a thirdparty
accredited testing lab.
It is prudent for manufacturers to develop a quality assurance program to ensure products meet safety standards.
This may include screening raw materials and sub‐components, so that as final products are produced, there is a
greater likelihood of them meeting standards and being certified by a testing lab. For lead paint and lead content, an
X‐Ray Fluorescence (XRF) machine (used by a trained, qualified person) is a possible method to determine if a
component has lead, but note that XRF is not a replacement for a third–party test.
Manufacturers and importers must comply with certificate requirements (a sample certificate is available on CPSC’s
Web site), which is the documentation that shows that the product has been tested and meets appropriate standards.
The certificate must accompany the product(s) either in paper or electronic form. The Commission intends to initially
focus enforcement efforts on compliance with the underlying safety rules, rather than on the certificate or form of the
certificate itself.
No. If your products need to be tested (see Table above), and they are materially identical and made in the same fashion
with no change in assembly, equipment used, etc., then a single sample may be all that is necessary for testing
purposes. A change in materials or design can be enough to alter testing results.
For these standards, no third‐party testing or certificate is needed before February 10, 2010; however, manufacturers
must still ensure their products meet the requirements of the law. There are several things manufacturers can do to
be highly confident that their products are compliant:
- Get to know your product and the laws and regulations that affect you. Know what is and is not required of
you and your products. These requirements can change.
- Develop sound business processes that put safety (and meeting safety standards) first.
- Although there may be no requirement to test and certify, you may choose to do so in the context of a quality
assurance program, which ensures products will meet the requirements of the law. This may include testing
raw materials, components and final products. This will also make it easier for you to meet the mandatory
third‐party testing and certification requirements when they become effective. For lead content testing, one
solution would be to hire a qualified, trained person who can quickly screen all of your raw materials and
finished products with a handheld device called an X‐Ray Fluorescence (XRF) machine.
- If you choose not to test, ask your suppliers about the chemical/material content of their products. Seek out
materials that will enable you to produce products that are in compliance.
CPSC is currently working to determine exemptions to the lead content limits and the requirement to test. In the
interim, until the Commission issues final rules in these areas, certain materials can be used in making products or be
sold as children’s products without risk of sanction or penalties by the Commission provided the manufacturer,
distributor or seller does not have actual knowledge that the products have more than the acceptable lead limit. The
Commission generally will not prosecute someone for making, selling or distributing items in these categories (see
Table B) even if it turns out that such an item actually contains more than 600 ppm lead.
Sellers will not be immune from prosecution if CPSC’s Office of Compliance finds that someone had actual knowledge
that one of these children’s products contained more than 600 ppm lead or continued to make, import, distribute or
sell such a product after being put on notice. Agency staff will seek recalls of violative children’s products or other
corrective actions, where appropriate.
Phthalates are a group of chemicals (oily, colorless
liquids) that are used, among other things, to make
vinyl and other plastics soft and flexible. Many types of
phthalates are in use today. As of February 10, 2009,
three have been prohibited outright in the United
States for use in certain products and three more are
prohibited pending further action by the Commission.
Three phthalates, DEHP, DBP, and BBP, have been permanently banned in concentrations of more than 0.1% in
“children’s toys” or “child care articles.”
- A “children’s toy” is a product intended for a child 12 years of age or younger for use when playing. General
use balls, bath toys/bath books, dolls and inflatable pool toys are examples of toys that are covered by the law
and might contain phthalates. Bikes, playground equipment, musical instruments, and sporting goods (except
for their toy counterparts) are not considered toys and therefore not affected by the ban.
- A “child care article” is a product that a child 3 years of age or younger would use for sleeping, feeding, sucking
or teething. Bibs, child placemats, child utensils, feeding bottles, cribs, booster seats, pacifiers and teethers are
child care articles that are covered by the law and might contain phthalates.
Three additional phthalates, DINP, DIDP, and DnOP, have been prohibited in concentrations of more than 0.1%
pending further study and review by the Commission and a group of outside experts. This interim prohibition applies
to: (a) child care articles, and (b) toys that can be placed in a child’s mouth or brought to the mouth and kept in the
mouth so that it can be sucked or chewed (for example: squeeze toys, teethers, bathtub toys and uninflated pool
toys).
Yes, you can make and donate children’s products to local charities and hospitals, if they are made of exempted
materials or materials that you feel confident do not contain lead (see Table B). Children’s products made of yarn,
dyed or undyed fabrics and natural materials such as untreated wood or cotton do not contain lead at levels sufficient
to exceed the new lead limits.
If your products are made for children 12 and under, they will need to be third‐party tested if you use paint or a
similar surface coating. Products for children under 3 will need to be tested to the small parts standard if you create a
product (such as a toy, puzzle or doll) that could break into small pieces when used, dropped or otherwise handled by
a child.
No, you are not required to test. However, retailers and resellers
(including those who sell on auction Web sites) cannot knowingly sell
children’s products that do not meet the requirements of the law. You
can protect yourself by screening for violative products. But more
importantly, as a business person, you do not want to be selling products
that have the potential to cause harm to anyone, especially a child.
Sellers should avoid products likely to have lead, phthalates, or do not
meet mandatory toy standards (see Table C for a general guide to
commonly sold goods).
It is now against the law to sell a recalled product. Remember to check the list of recalled products on the CPSC web
site as a number of children’s products have been recalled.
Resellers, in particular, need to make sound business
decisions about the products they sell. As a practical matter,
you must either:
- Test the product;
- Refuse to accept or sell the product, which will mean
disposing of it if you already have it in your inventory;
- Use your best judgment based on your knowledge of
the product; or,
- Contact the manufacturer about questionable
products.
It would make sense to test, rather than discard, any suspect
children’s products that have a high resale value. You may want to hire a qualified, trained person in your area who
can quickly screen all of your suspect products with a handheld device called an X‐Ray Fluorescence (XRF) machine.
You should not rely on commercially sold lead testing kits. CPSC staff have determined that the kits are prone to give
“false positive” or “false negative” results.
The Commission’s response to a violation of the law varies depending upon the circumstances, including the nature of
the product defect, the number of products, the severity of the risk of injury associated with the product and the type
of violation. The Commission’s goal is to help you to avoid future violations and protect your customers, not to put
you out of business.
No. Compositing to combine different substrates from one or more samples may fail to detect excessive levels in one part merely because they are diluted. Accordingly, compositing of plastics or other materials to test for lead in substrates is not appropriate.
CPSIA defines children’s products as those products intended primarily for use by children 12 and under. Packaging is generally not intended for use by children, given that most packaging is discarded and is not used or played with as a children’s product. However, if the packaging is intended to be reused, or used in conjunction with the children’s product, such as a heavy gauge reusable bag used to hold blocks, it becomes a component or part of the product, and would be subject to the lead requirements of CPSIA. It should also be noted that many individual states have adopted packaging laws which address toxics in packaging or packaging components and which have not been preempted by Commission action.
All children’s products (as defined by the CPSIA) subject to the lead limit of the Act will eventually require testing for lead, not just those with surface coatings. It is important to distinguish between the rules that apply to lead paint and surface coatings and the rules that apply to lead content. The CPSIA provides limits to the amount of lead in paint and surface coatings and limits to the amount of lead in the content of the product itself. Children’s products that are painted, or have surface coatings are also subject to the lead paint limit, in addition to the lead content limits.
The use of XRF analysis for lead content is being considered. CPSC Directorate for Laboratory Sciences, Chemistry Division (LSC) will post the methods it will be using on the CPSC website in the next few months.
Yes. Where third-party testing by an accredited laboratory is required as the
basis for certification, that testing cannot be based on XRF technology at this
time; however, XRF testing, either by a manufacturer or by a laboratory, may
serve as the basis for general conformity certification. Manufacturers are
cautioned, however, to be careful in their use of XRF for this purpose given the
difficulties in screening for lead in paint with that technology.
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