Legal Alert Snell & Wilmer L.L.P.
August 14, 2009

Inaccessible Parts, Component Testing & New Commissioners


The CPSC posted the final rule regarding children's products containing lead and inaccessible component parts.  The interpretive rule is effective August 14, 2009.  The final rule is available here:

Below are the highlights and key points:

  • Accessibility means physical contact with lead-containing component parts, including mouthing, swallowing and touching, in addition to other children's activities that can result in contact with the lead-containing parts.
  • Inaccessible component parts do not have to comply with the lead content limits or be tested and certified as to lead content.
  • Accessibility probes are appropriate for testing children's products.
  • For products that are sealed so that there is no point of entry to any internal parts that contain lead, the use of accessibility probes is not necessary to demonstrate that the parts are inaccessible. 
  • The use & abuse tests at 16 CFR 1500.50-1500.53 will be used to evaluate accessibility of lead-containing component parts of a children's product for the specific age group the product is intended for. 
  • The use & abuse bite test will not be applied for purposes of evaluating whether lead-containing component parts are accessible. 
  • A children's product that is or contains a lead-containing part which is enclosed, encased, or covered by fabric and passes the appropriate use and abuse tests, is inaccessible to a child unless the product or part of the product in one dimension is smaller than 5 centimeters. 
  • The intentional disassembly or destruction of products by children older than 8 years will not be considered in evaluating products for accessibility of lead-containing components. 

Late last week the CPSC also posted a Statement of Policy with guidance for testing of component parts under Section 108.  The Commission believes that phthalate testing should be limited to those plastic parts or other product parts, which could conceivably contain phthalates ("plasticized component parts").  Based on this analysis, the Commission has developed a new method to test component parts for the specified phthalates.  This test method can be found here:  Manufacturers are responsible for knowing what materials and components go into their products, and if the product or its components contain one of the plasticizers specified in Section 108, then the manufacturer or importer is required to test and certify the component or product to ensure compliance.  The CPSC is still seeking public comments on this guidance.

Additionally, President Obama's nominees to the CPSC have been approved by the U.S. Senate.  Robert Adler (who was nominated in May) and Anne Northup (who was nominated in July) have been named as the fourth and fifth commissioners.  The CPSC's newly authorized five-commissioner lineup is now complete. 

If you have any questions on the subject of this article please contact the authors or another Snell & Wilmer attorney at 714.427.7000.


Elizabeth J. McNamee

Bradley W. Petersen

Gary A. Wolensky

Jessica L. Charles

Snell & Wilmer L.L.P.
Snell & Wilmer offices