15 U.S.C. § 1278a — Children’s products containing lead; lead

Page 1384 TITLE 15—COMMERCE AND TRADE § 1278a Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 103–267, title I, § 101(d), June 16, 1994, 108 Stat. 725, provided that: ‘‘Subsections (a) and (b) [enacting this section and provisions set out as a note under sec- tion 1261 of this title] shall take effect January 1, 1995, and section 24 of the Federal Hazardous Substances Act [this section] shall apply only to products entered into commerce on or after January 1, 1995.’’ REGULATIONS Pub. L. 103–267, title I, § 101(c), June 16, 1994, 108 Stat. 725, provided that: ‘‘The Consumer Product Safety Commission (hereinafter referred to as the ‘Commis- sion’) shall promulgate regulations, under section 553 of title 5, United States Code, for the implementation of this section [enacting this section and provisions set out as notes under this section and section 1261 of this title] and section 24 of the Federal Hazardous Sub- stances Act [this section] by July 1, 1994, or the date that is 6 months after the date of enactment of this Act [June 16, 1994], whichever occurs first. Subsections (f) through (i) of section 3 of the Federal Hazardous Sub- stances Act (15 U.S.C. 1262) shall not apply with respect to the issuance of regulations under this subsection.’’ PREEMPTION Pub. L. 103–267, title I, § 101(e), June 16, 1994, 108 Stat. 725, provided that: ‘‘(1) IN GENERAL.—Subject to paragraph (2), a State or political subdivision of a State may not establish or en- force a requirement relating to cautionary labeling of small parts hazards or choking hazards in any toy, game, marble, small ball, or balloon intended or suit- able for use by children unless such requirement is identical to a requirement established by amendments made by this section to the Federal Hazardous Sub- stances Act [enacting this section] or by regulations promulgated by the Commission. ‘‘(2) EXCEPTION.—A State or political subdivision of a State may, until January 1, 1995, enforce a requirement described in paragraph (1) if such requirement was in effect on October 2, 1993.’’ § 1278a. Children’s products containing lead; lead paint rule (a) General lead ban (1) Treatment as a banned hazardous sub- stance Except as expressly provided in subsection (b) beginning on the dates provided in para- graph (2), any children’s product (as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a))) that contains more lead than the limit established by paragraph (2) shall be treated as a banned hazardous sub- stance under the Federal Hazardous Sub- stances Act (15 U.S.C. 1261 et seq.). (2) Lead limit (A) 600 parts per million Except as provided in subparagraphs (B), (C), (D), and (E), beginning 180 days after Au- gust 14, 2008, the lead limit referred to in paragraph (1) is 600 parts per million total lead content by weight for any part of the product. (B) 300 parts per million Except as provided by subparagraphs (C), (D), and (E), beginning on the date that is 1 year after August 14, 2008, the lead limit re- ferred to in paragraph (1) is 300 parts per million total lead content by weight for any part of the product. (C) 100 parts per million Except as provided in subparagraphs (D) and (E), beginning on the date that is 3 years after August 14, 2008, subparagraph (B) shall be applied by substituting ‘‘100 parts per mil- lion’’ for ‘‘300 parts per million’’ unless the Commission determines that a limit of 100 parts per million is not technologically fea- sible for a product or product category. The Commission may make such a determina- tion only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children’s products. (D) Alternate reduction of limit If the Commission determines under sub- paragraph (C) that the 100 parts per million limit is not technologically feasible for a product or product category, the Commis- sion shall, by regulation, establish an amount that is the lowest amount of lead, lower than 300 parts per million, the Com- mission determines to be technologically feasible to achieve for that product or prod- uct category. The amount of lead estab- lished by the Commission under the pre- ceding sentence shall be substituted for the 300 parts per million limit under subpara- graph (B) beginning on the date that is 3 years after August 14, 2008. (E) Periodic review and further reductions The Commission shall, based on the best available scientific and technical informa- tion, periodically review and revise down- ward the limit set forth in this subsection, no less frequently than every 5 years after promulgation of the limit under subpara- graph (C) or (D) to require the lowest amount of lead that the Commission deter- mines is technologically feasible to achieve. The amount of lead established by the Com- mission under the preceding sentence shall be substituted for the lead limit in effect im- mediately before such revision. (3) Application Each limit set forth in paragraph (2) (except for the limit set forth in subparagraphs (A) and (B)) shall apply only to a children’s prod- uct (as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a))) that is manufactured after the effective date of such respective limit. (b) Exclusion of certain materials or products and inaccessible component parts (1) Functional purpose exception (A) In general The Commission, on its own initiative or upon petition by an interested party, shall grant an exception to the limit in subsection (a) for a specific product, class of product, material, or component part if the Commis- sion, after notice and a hearing, determines that— (i) the product, class of product, mate- rial, or component part requires the inclu- sion of lead because it is not practicable or not technologically feasible to manufac- Page 1385 TITLE 15—COMMERCE AND TRADE § 1278a ture such product, class of product, mate- rial, or component part, as the case may be, in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible; (ii) the product, class of product, mate- rial, or component part is not likely to be placed in the mouth or ingested, taking into account normal and reasonably fore- seeable use and abuse of such product, class of product, material, or component part by a child; and (iii) an exception for the product, class of product, material, or component part will have no measurable adverse effect on public health or safety, taking into ac- count normal and reasonably foreseeable use and abuse. (B) Measurement For purposes of subparagraph (A)(iii), there is no measurable adverse effect on pub- lic health or safety if the exception de- scribed in subparagraph (A) will result in no measurable increase in blood lead levels of a child. The Commission may adopt an alter- native method of measurement other than blood lead levels if it determines, after no- tice and a hearing, that such alternative method is a better scientific method for measuring adverse effect on public health and safety. (C) Procedures for granting exception (i) Burden of proof A party seeking an exception under sub- paragraph (A) has the burden of dem- onstrating that it meets the requirements of such subparagraph. (ii) Grounds for decision In the case where a party has petitioned for an exception, in determining whether to grant the exception, the Commission may base its decision solely on the mate- rials presented by the party seeking the exception and any materials received through notice and a hearing. (iii) Admissible evidence In demonstrating that it meets the re- quirements of subparagraph (A), a party seeking an exception under such subpara- graph may rely on any nonproprietary in- formation submitted by any other party seeking such an exception and such infor- mation shall be considered part of the record presented by the party that relies on that information. (iv) Scope of exception If an exception is sought for an entire product, the burden is on the petitioning party to demonstrate that the criteria in subparagraph (A) are met with respect to every accessible component or accessible material of the product. (D) Limitation on exception If the Commission grants an exception for a product, class of product, material, or component part under subparagraph (A), the Commission may, as necessary to protect public health or safety— (i) establish a lead limit that such prod- uct, class of product, material, or compo- nent part may not exceed; or (ii) place a manufacturing expiration date on such exception or establish a schedule after which the manufacturer of such product, class of product, material, or component part shall be in full compliance with the limit established under clause (i) or the limit set forth in subsection (a). (E) Application of exception An exception under subparagraph (A) for a product, class of product, material, or com- ponent part shall apply regardless of the date of manufacture unless the Commission expressly provides otherwise. (F) Previously submitted petitions A party seeking an exception under this paragraph may rely on materials previously submitted in connection with a petition for exclusion under this section. In such cases, petitioners must notify the Commission of their intent to rely on materials previously submitted. Such reliance does not affect pe- titioners’ obligation to demonstrate that they meet all requirements of this para- graph as required by subparagraph (C)(i). (2) Exception for inaccessible component parts (A) In general The limits established under subsection (a) shall not apply to any component part of a children’s product that is not accessible to a child through normal and reasonably fore- seeable use and abuse of such product, as de- termined by the Commission. A component part is not accessible under this subpara- graph if such component part is not phys- ically exposed by reason of a sealed covering or casing and does not become physically ex- posed through reasonably foreseeable use and abuse of the product. Reasonably fore- seeable use and abuse shall include swal- lowing, mouthing, breaking, or other chil- dren’s activities, and the aging of the prod- uct. (B) Inaccessibility proceeding Within 1 year after August 14, 2008, the Commission shall promulgate a rule pro- viding guidance with respect to what prod- uct components, or classes of components, will be considered to be inaccessible for pur- poses of subparagraph (A). (C) Application pending CPSC guidance Until the Commission promulgates a rule pursuant to subparagraph (B), the deter- mination of whether a product component is inaccessible to a child shall be made in ac- cordance with the requirements laid out in subparagraph (A) for considering a compo- nent to be inaccessible to a child. (3) Certain barriers disqualified For purposes of this subsection, paint, coat- ings, or electroplating may not be considered to be a barrier that would render lead in the substrate inaccessible to a child, or to prevent absorption of any lead into the human body, through normal and reasonably foreseeable use and abuse of the product. Page 1386 TITLE 15—COMMERCE AND TRADE § 1278a 1 So in original. Probably should be ‘‘2052(a)))’’. (4) Certain electronic devices If the Commission determines that it is not technologically feasible for certain electronic devices, including devices containing bat- teries, to comply with subsection (a), the Com- mission, by regulation, shall— (A) issue requirements to eliminate or minimize the potential for exposure to and accessibility of lead in such electronic de- vices, which may include requirements that such electronic devices be equipped with a child-resistant cover or casing that prevents exposure to and accessibility of the parts of the product containing lead; and (B) establish a schedule by which such electronic devices shall be in full compliance with the limits in subsection (a), unless the Commission determines that full compliance will not be technologically feasible for such devices within a schedule set by the Com- mission. (5) Exception for off-highway vehicles (A) In general Subsection (a) shall not apply to an off- highway vehicle. (B) Off-highway vehicle defined For purposes of this section, the term ‘‘off- highway vehicle’’— (i) means any motorized vehicle— (I) that is manufactured primarily for use off public streets, roads, and high- ways; (II) designed to travel on 2, 3, or 4 wheels; and (III) that has either— (aa) a seat designed to be straddled by the operator and handlebars for steering control; or (bb) a nonstraddle seat, steering wheel, seat belts, and roll-over protec- tive structure; and (ii) includes a snowmobile. (6) Bicycles and related products In lieu of the lead limits established in sub- section (a)(2), the limits set forth for each re- spective material in the notice of the Commis- sion entitled ‘‘Notice of Stay of Enforcement Pertaining to Bicycles and Related Products’’, published June 30, 2009 (74 Fed. Reg. 31254), shall apply to any metal component part of the products to which the stay of enforcement described in such notice applies, except that after December 31, 2011, the limits set forth in such notice shall not be more than 300 parts per million total lead content by weight for any metal component part of the products to which such stay pertains. (7) Exclusion of certain used children’s prod- ucts (A) General exclusion The lead limits established under sub- section (a) shall not apply to a used chil- dren’s product. (B) Definition In this paragraph, the term ‘‘used chil- dren’s product’’ means a children’s product (as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a)) 1 that was obtained by the seller for use and not for the purpose of resale or was obtained by the seller, either directly or indirectly, from a person who obtained such children’s product for use and not for the purpose of resale. Such term also includes a children’s product that was donated to the seller for charitable distribution or resale to support charitable purposes. Such term shall not include— (i) children’s metal jewelry; (ii) any children’s product for which the donating party or the seller has actual knowledge that the product is in violation of the lead limits in this section; or (iii) any other children’s product or product category that the Commission de- termines, after notice and a hearing. For purposes of this definition, the term ‘‘seller’’ includes a person who lends or do- nates a used children’s product. (8) Periodic review The Commission shall, based on the best available scientific and technical information, periodically review and revise the regulations promulgated pursuant to this subsection no less frequently than every 5 years after the first promulgation of a regulation under this subsection to make them more stringent and to require the lowest amount of lead the Com- mission determines is technologically feasible to achieve. (c) Application with ASTM F963 To the extent that any regulation promul- gated by the Commission under this section (or any section of the Consumer Product Safety Act [15 U.S.C. 2051 et seq.] or any other Act enforced by the Commission, as such Acts are affected by this section) is inconsistent with the ASTM F963 standard, such promulgated regulation shall su- persede the ASTM F963 standard to the extent of the inconsistency. (d) Technological feasibility defined For purposes of this section, a limit shall be deemed technologically feasible with regard to a product or product category if— (1) a product that complies with the limit is commercially available in the product cat- egory; (2) technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common mean- ing of the term; (3) industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or (4) alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit. (e) Pending rulemaking proceedings to have no effect The pendency of a rulemaking proceeding to consider— Page 1387 TITLE 15—COMMERCE AND TRADE § 1278a (1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility, (2) an exception for certain products or ma- terials or inaccessibility guidance under sub- section (b) of this section, or (3) any other request for modification of or exemption from any regulation, rule, stand- ard, or ban under this Act or any other Act en- forced by the Commission, shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section. (f) More stringent lead paint ban (1) In general Effective on the date that is 1 year after Au- gust 14, 2008, the Commission shall modify sec- tion 1303.1 of its regulations (16 C.F.R. 1301.1) by substituting ‘‘0.009 percent’’ for ‘‘0.06 per- cent’’ in subsection (a) of that section. (2) Periodic review and reduction The Commission shall, no less frequently than every 5 years after the date on which the Commission modifies the regulations pursuant to paragraph (1), review the limit for lead in paint set forth in section 1303.1 of title 16, Code of Federal Regulations (as revised by paragraph (1)), and shall by regulation revise downward the limit to require the lowest amount of lead that the Commission deter- mines is technologically feasible to achieve. (3) Methods for screening lead in small painted areas In order to provide for effective and efficient enforcement of the limit set forth in section 1303.1 of title 16, Code of Federal Regulations, the Commission may rely on x-ray fluores- cence technology or other alternative methods for measuring lead in paint or other surface coatings on products subject to such section where the total weight of such paint or surface coating is no greater than 10 milligrams or where such paint or surface coating covers no more than 1 square centimeter of the surface area of such products. Such alternative meth- ods for measurement shall not permit more than 2 micrograms of lead in a total weight of 10 milligrams or less of paint or other surface coating or in a surface area of 1 square centi- meter or less. (4) Alternative methods of measuring lead in paint generally (A) Study Not later than 1 year after August 14, 2008, the Commission shall complete a study to evaluate the effectiveness, precision, and re- liability of x-ray fluorescence technology and other alternative methods for measuring lead in paint or other surface coatings when used on a children’s product or furniture ar- ticle in order to determine compliance with part 1303 of title 16, Code of Federal Regula- tions, as modified pursuant to this sub- section. (B) Rulemaking If the Commission determines, based on the study in subparagraph (A), that x-ray fluorescence technology or other alternative methods for measuring lead in paint are as effective, precise, and reliable as the meth- odology used by the Commission for compli- ance determinations prior to August 14, 2008, the Commission may promulgate regula- tions governing the use of such methods in determining the compliance of products with part 1303 of title 16, Code of Federal Regula- tions, as modified pursuant to this sub- section. Any regulations promulgated by the Commission shall ensure that such alter- native methods are no less effective, precise, and reliable than the methodology used by the Commission prior to August 14, 2008. (5) Periodic review The Commission shall, no less frequently than every 5 years after the Commission com- pletes the study required by paragraph (4)(A), review and revise any methods for measure- ment utilized by the Commission pursuant to paragraph (3) or pursuant to any regulations promulgated under paragraph (4) to ensure that such methods are the most effective methods available to protect children’s health. The Commission shall conduct an ongoing ef- fort to study and encourage the further devel- opment of alternative methods for measuring lead in paint and other surface coating that can effectively, precisely, and reliably detect lead levels at or below the level set forth in part 1303 of title 16, Code of Federal Regula- tions, or any lower level established by regula- tion. (6) No effect on legal limit Nothing in paragraph (3), nor reliance by the Commission on any alternative method of measurement pursuant to such paragraph, nor any rule prescribed pursuant to paragraph (4), nor any method established pursuant to para- graph (5) shall be construed to alter the limit set forth in section 1303 of title 16, Code of Federal Regulations, as modified pursuant to this subsection, or provide any exemption from such limit. (7) Construction Nothing in this subsection shall be con- strued to affect the authority of the Commis- sion or any other person to use alternative methods for detecting lead as a screening method to determine whether further testing or action is needed. (g) Treatment as a regulation under the FHSA Any ban imposed by subsection (a) or rule pro- mulgated under subsection (a) or (b) of this sec- tion, and section 1303.1 of title 16, Code of Fed- eral Regulations (as modified pursuant to sub- section (f)(1) or (2)), or any successor regulation, shall be considered a regulation of the Commis- sion promulgated under or for the enforcement of section 2(q) of the Federal Hazardous Sub- stances Act (15 U.S.C. 1261(q)). (Pub. L. 110–314, title I, § 101, Aug. 14, 2008, 122 Stat. 3017; Pub. L. 112–28, §§ 1, 10(b), Aug. 12, 2011, 125 Stat. 273, 283.) Page 1388 TITLE 15—COMMERCE AND TRADE §§ 1281, 1282 Editorial Notes REFERENCES IN TEXT The Federal Hazardous Substances Act, referred to in subsec. (a)(1), is Pub. L. 86–613, July 12, 1960, 74 Stat. 372, which is classified generally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 1261 of this title and Tables. The Consumer Product Safety Act, referred to in sub- sec. (c), is Pub. L. 92–573, Oct. 27, 1972, 86 Stat. 1207, which is classified generally to chapter 47 (§ 2051 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2051 of this title and Tables. This Act, referred to in subsec. (e)(3), is Pub. L. 110–314, Aug. 14, 2008, 122 Stat. 3016, known as the Con- sumer Product Safety Improvement Act of 2008. For complete classification of this Act to the Code, see Short Title of 2008 Amendment note set out under sec- tion 2051 of this title and Tables. CODIFICATION Section was enacted as part of the Consumer Product Safety Improvement Act of 2008, and not as part of the Federal Hazardous Substances Act which comprises this chapter. AMENDMENTS 2011—Subsec. (a)(1). Pub. L. 112–28, § 10(b), substituted ‘‘(as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a)))’’ for ‘‘(as defined in sec- tion 3(a)(16) of the Consumer Product Safety Act (15 U.S.C. 2052(a)(16)))’’. Subsec. (a)(3). Pub. L. 112–28, § 1(a), added par. (3). Subsec. (b)(1). Pub. L. 112–28, § 1(b)(1), added par. (1) and struck out former par. (1). Prior to amendment, text read as follows: ‘‘The Commission may, by regula- tion, exclude a specific product or material from the prohibition in subsection (a) if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evi- dence that lead in such product or material will nei- ther— ‘‘(A) result in the absorption of any lead into the human body, taking into account normal and reason- ably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children’s activities, and the aging of the prod- uct; nor ‘‘(B) have any other adverse impact on public health or safety.’’ Subsec. (b)(2)(A). Pub. L. 112–28, § 1(b)(2), substituted ‘‘include’’ for ‘‘include to,’’. Subsec. (b)(5) to (8). Pub. L. 112–28, § 1(b)(3), added pars. (5) to (7) and redesignated former par. (5) as (8). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2011 AMENDMENT Pub. L. 112–28, § 11, Aug. 12, 2011, 125 Stat. 283, pro- vided that: ‘‘Except as provided otherwise, the amend- ments made by this Act [amending this section and sec- tions 2055a, 2056a, 2056b, 2057c, 2063, 2068, and 2076 of this title and enacting provisions set out as a note under section 2089 of this title] shall take effect on the date of enactment of this Act [Aug. 12, 2011].’’ DEFINITION For definition of ‘‘Commission’’ used in this section, see section 2(a) of Pub. L. 110–314, set out as a note under section 2051 of this title. CHAPTER 31—DESTRUCTION OF PROPERTY MOVING IN COMMERCE §§ 1281, 1282. Repealed. Pub. L. 103–272, § 7(b), July 5, 1994, 108 Stat. 1379 Section 1281, Pub. L. 87–221, § 1, Sept. 13, 1961, 75 Stat. 494, related to willful destruction or injury, or at- tempted destruction or injury, of property moving in interstate or foreign commerce in possession of com- mon or contract carriers, penalties for such acts, and proof of interstate or foreign nature of property. See section 80501 of Title 49, Transportation. Section 1282, Pub. L. 87–221, § 2, Sept. 13, 1961, 75 Stat. 494, provided that judgment of conviction or acquittal on merits under laws of any State or possession, Dis- trict of Columbia, or Puerto Rico, was bar to prosecu- tion under this chapter for same acts. See section 80501 of Title 49. CHAPTER 32—TELECASTING OF PROFESSIONAL SPORTS CONTESTS Sec. 1291. Exemption from antitrust laws of agreements covering the telecasting of sports contests and the combining of professional football leagues. 1292. Area telecasting restriction limitation. 1293. Intercollegiate and interscholastic football contest limitations. 1294. Antitrust laws unaffected as regards to other activities of professional sports contests. 1295. ‘‘Persons’’ defined. § 1291. Exemption from antitrust laws of agree- ments covering the telecasting of sports con- tests and the combining of professional foot- ball leagues The antitrust laws, as defined in section 1 of the Act of October 15, 1914, as amended (38 Stat. 730) [15 U.S.C. 12], or in the Federal Trade Com- mission Act, as amended (38 Stat. 717) [15 U.S.C. 41 et seq.], shall not apply to any joint agree- ment by or among persons engaging in or con- ducting the organized professional team sports of football, baseball, basketball, or hockey, by which any league of clubs participating in pro- fessional football, baseball, basketball, or hock- ey contests sells or otherwise transfers all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games of football, baseball, basketball, or hockey, as the case may be, engaged in or conducted by such clubs. In addition, such laws shall not apply to a joint agreement by which the member clubs of two or more professional football leagues, which are exempt from income tax under section 501(c)(6) of the Internal Revenue Code of 1986 [26 U.S.C. 501(c)(6)], combine their operations in expanded single league so exempt from income tax, if such agreement increases rather than decreases the number of profes- sional football clubs so operating, and the provi- sions of which are directly relevant thereto. (Pub. L. 87–331, § 1, Sept. 30, 1961, 75 Stat. 732; Pub. L. 89–800, § 6(b)(1), Nov. 8, 1966, 80 Stat. 1515; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095.) Editorial Notes REFERENCES IN TEXT The Federal Trade Commission Act, referred to in text, is act Sept. 26, 1914, ch. 311, 38 Stat. 717, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of this title. For complete classification of this Act to the Code, see section 58 of this title and Ta- bles. AMENDMENTS 1986—Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’.