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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• 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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• the name of the manufacturer or private labeler
• the location of production (city, state/province, and country)
• the date of production OR a mark, such as a batch number or cohort number, that you can use to look up the date of production.

CPSC’s tracking label guidance tells us about tracking labels:

• they must be “permanent”
• they must be on the packaging and the product “to the extent practicable”
• they must have “marks” (i.e. letters, numbers, or signs) that allow the manufacturer to discern what batch the item belongs to and look up the origins of the materials
• the manufacturer must maintain a way to look up the origins of the materials based on the mark, e.g. a spreadsheet or database
• the information need not be all in one spot on the product, as long as it’s all on the product somewhere
• if the label on the product can be seen through the packaging, there is no need to also label the packaging
• the requirement is NOT RETROACTIVE, meaning that anything manufactured before August 14 DOES NOT have to be labeled

Certain products are exempt from labeling. If your product has more than one piece, not all pieces must be labeled.

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• Only one piece of a set has to be labeled if the pieces are not sold separately
• The date of assembly of all the pieces together is the date of manufacture
• Don’t forget to also label the packaging of these items if the packaging is meant to be thrown away (if the packaging is not meant to be thrown away, it’s considered part of the item and you can label just the packaging)

Examples:

• A set of blocks that comes in a fabric bag can have the label on the fabric bag only
• Beads that come in a disposable plastic bag can have the label on the plastic bag
• A pair of shoes needs the label on only one of the shoes
• A board game can have the label on the box (outside packaging) and on the board, but does not need to have each piece labeled
• A craft kit needs a label on the outside packaging and a label on one “integral part”

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Just exactly what kind of batch record keeping will be required of small volume crafters is unknown.  The CPSC guidance document just says that your system should be comparable to similar crafters’, but nobody knows what similar crafters are going to find adequate to meet the law’s requirements.

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What products are exempt from labeling on the product (but still must be labeled on the packaging)?

• products too small to label, e.g. earrings
• products that come with packaging that is meant to be used for storage, e.g. blocks that come in a fabric bag; in this case the bag must be labeled but the blocks do not
• multiple tiny items such as bags of beads or marbles
• bulk vending toys
• products where a physical mark would weaken the product or make it useless
• products with surfaces that are impossible to mark permanently, e.g. hair ornaments (these are specifically mentioned in the CPSC document), pipe cleaners, natural rocks
• products whose aesthetics would be ruined by a mark
• products where a mark cannot be placed in an “accessible but inconspicuous location”
• products that are exempt from labeling under other laws because those laws have determined them to be unlabelable, e.g. socks

Unfortunately, as yet we have no guidance as to who will be permitted to decide whether the aesthetics of a product would be ruined by a mark.  There is nothing in the CPSC guidance or in CPSIA to indicate that the artisan/artist/crafter or even the customer would be the judge of the product’s aesthetics, rather than attorneys or CPSC staff.

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Based on analysis by their General Counsel, CPSC does not believe it has that authority.  The text of CPSIA allows them to make exemptions to the 100ppm lead level that is set to take effect in August 2011, if it is not “technologically feasible” for lead levels to be below 300ppm.  It does allow them to make exemptions for lead content over 600ppm, but ONLY “on the basis of the best-available, objective, peer-reviewed, scientific evidence” that the lead in the material will not “result in the absorption of any lead into the human body” during reasonably foreseeable use of the product. It appears that Congress assumes that scientific evidence of this nature is easily obtained for the items they wish exempted.

However, the standard laid out in CPSIA for exemptions is an impossible standard to meet.  First, peer-reviewed studies are very hard to come by.  They are expensive and take time to conduct, much longer than the six month timeframe given.  Small businesses and even many large businesses cannot afford to hire labs full of scientists to prove their products are safe.

Second, the human body absorbs tiny bits of just about every substance it comes into contact with.  While normal contact may not result in enough absorption to make a difference, it is impossible to say definitively that normal exposure cannot result in any absorption.  Several exemption requests have included the use of a computer model to estimate the effect of lead absorption, but the CPSC has rejected computer-model based lead absorption estimates.  If a computer model of lead absorption cannot be used, then the only way to find the effect of normal use on blood lead levels would be to actually make a product, have it in use by children, and check their blood lead levels before and after use.  But to do that would require making the as-yet-untested product and distributing it to children, an illegal act under CPSIA.  This Catch-22 makes it impossible for any product to get an exemption.

Many companies whose products are estimated to result in less lead absorption than drinking a glass of tap water have applied for exemptions and been denied for the same reasons.  These products include ballpoint pens (the brass ball in the tip has over 600 ppm lead and can’t be lowered), bicycle tire valves (the brass in the valve can’t have its lead content lowered either), and ATVs (certain metal parts must, for safety purposes, contain violative amounts of lead).  None of these products has ever been associated with cases of lead poisoning, but nevertheless they are in violation of CPSIA and their exemptions have all been denied by the CPSC.

In summary, yes CPSC can grant exemptions, but only if companies complete the Labors of Hercules.  Most companies, not being sons of Zeus, can’t meet the standard.

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