For a CPSC commissioner’s insights on this extension, read this post by Nancy Nord.

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The Handmade Toy Alliance has therefore pulled together the flow chart below in order to provide businesses with straightforward information on what does or does not have to be tested under the law.

CPSIA Testing Requirements Flowchart

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Natural or synthetic textiles are now exempt from lead testing, therefore the parts of the diaper that need to be tested for lead fall to the snaps and elastic if it is visible, as long as you are not making diapers using fabrics with a waterproof finish or PUL.

While there is no final rule on the definition of a “child care article” it is smart to proceed as though diapers will fall into this category. Phthalate testing would therefore be required due to certain materials used to construct the diaper.

Here is a chart pulled together by Wacky Hermit that details commonly used diaper making materials, and their exemption status. This chart assumes that a diaper will be defined by the CPSC as a “child care article.”

* If these materials are inaccessible (i.e. hidden inside the diaper where no one can touch them), they do not have to be tested for lead.
** Snaps made of certain plastics (polyethylene or polypropylene) do not need to be tested for phthalates.
*** Paints are held to a smaller lead content standard (90 ppm lead) than the underlying metal.

For additional information on diapers and the CPSIA,  refer to the Real Diaper IndustryAssociation which is helping its members take a proactive response to the CPSIA.

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However, an item that is made out of yarn may need some third party testing.  If the yarn undergoes any kind of process that could introduce lead into it, it will need to be tested after that process.  Also, many yarn-based items such as sweaters contain non-yarn components, such as buttons.  If the buttons are not made of an exempt material such as wood or bone, they will need to be tested.

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In addition to this, in 2006 a child died from swallowing a jewelry charm that was almost pure lead.  This unfortunate incident brought to the public’s attention the lack of standards for lead in jewelry.

CPSC was on the verge of issuing a standard on lead content in jewelry when Congress decided to step in.  Transcripts of the hearings show that lobbying groups such as PIRG, Public Citizen, and Consumers Union led the charge and were responsible for some of the law’s most confusing provisions, such as the application of the law to all products, the extension of the age range to 12 years, and the provision that lead content and not absorbable lead is what matters.  During the hearings, representatives of manufacturers and even the CPSC itself testified that the new law would have all the problems it currently has, but Congress went ahead with it anyway, evidently based on the testimony of these lobbying groups.  When CPSIA was passed, these lobbying groups celebrated and took credit for their influence on the law.

Notable in all these hearings is that large toy manufacturers like Hasbro and Mattel, whose toys were included in the recalls of 2007, did not even testify before Congress until after CPSIA was largely a done deal.

For an excellent summary of CPSIA’s legislative history and the lobbying groups’ contributions to CPSIA, with a library of links to actual testimony, go here.

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What makes this problematic is that the state AGs are not bound by any decisions of CPSC.  So if, for example, CPSC decides that they are not going to enforce CPSIA against bicycles until 2011, this does not stop the 51 state AGs (Washington DC has one too) from going after a company that makes bicycles.  Many state AGs are busy prosecuting violent crimes and will abide by whatever decisions CPSC makes, but some state AGs have made clear that they intend to fully enforce CPSIA regardless of CPSC’s enforcement stays.  This makes it difficult for businesses to operate across state lines, and makes CPSC’s stays of enforcement practically useless.

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• The exemption is voided if the material is processed in a way that introduces lead into the material.
• Materials that have a surface coating such as paint must have the surface coating tested.  For example, wood is exempt from testing, but painted wood must have the paint tested.
• Materials that are adulterated by other substances must be tested.
• If for some reason you use one of the exempt materials and by some freak of nature it happens to have too much lead in it, you’re still liable.
• Some materials that are exempt from lead testing are not exempt from phthalate testing.  Some materials exempt from phthalate testing are not exempt from lead testing.
• While we can reasonably expect that state Attorneys General will abide by the science-based findings of the CPSC in this matter, the possibility remains (however remote) that one might decide to prosecute a manufacturer for not testing one of these materials.

The following materials are considered exempt from third party lead testing by the CPSC:

• Precious metals, including gold, silver, and titanium.
• Precious and semiprecious gemstones that are not associated with lead in nature, e.g. rubies, emeralds, tourmaline, jade, quartz.
• Natural and cultured pearls.
• Wood.
• Amber.
• Minerals and fossils, except for those minerals (like galena) that are associated with lead in nature.
• Plant-based materials such as bark, essential oils, jojoba, and tung oil.
• Animal-based materials such as horn, coral, seashells, bone, shellac, and animal glue.
• Food-grade items such as beeswax, mineral oil, food coloring, herbs, milk, and honey.
• All textiles: dyed and undyed, natural and synthetic.
• Paper, cardboard, and similar wood-pulp products.
• CMYK process printing ink.
• Books, if they are made entirely of exempt materials.  All books printed after 1985 are considered to be made of exempt materials.

The following materials are exempted from third-party testing if they meet certain conditions:

• Adhesives, if they cannot be touched by a child (don’t be sloppy with your glue!).
• Stainless steel, except for 303Pb stainless steel.
• Leather, if it does not have a surface pigment (these pigments are considered in the same category as paints)
• Paper, cardboard, and other paper products, if they do not have a coating on them (such as laminating).
• Any component that is inaccessible, meaning it cannot be touched by a child’s finger.

The following materials are specifically mentioned in the document as not exempted from third-party lead testing:

• Composite wood products, like particle board
• Paints, varnishes, and lacquers
• Ceramic glazes and clay
• Glass, crystals, and rhinestones
• Art supplies
• Inks that do not become part of the paper
• Lamination
• Screen printing inks
• Metal and plastic components, such as nails, screws, zippers, buttons, snaps, hair bands, barrettes, and doll accessories
• Metal or plastic bindings used to hold books together, including staples

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