[Federal Register Volume 60, Number 29 (Monday, February 13, 1995)]
[Rules and Regulations]
[Pages 8188-8194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3450]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500
Statement of Policy or Interpretation; Enforcement Policy for Art
Materials
AGENCY: Consumer Product Safety Commission.
ACTION: Final rule; statement of enforcement policy.
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SUMMARY: In 1988, Congress enacted the Labeling of Hazardous Art
Materials Act which mandated a labeling standard and certain other
requirements for art materials. Based on its experience enforcing these
requirements, the Commission is issuing a statement of enforcement
policy to more clearly apprise the public of its intended enforcement
focus.
[[Page 8189]] DATES: Effective Date; February 13, 1995.
Applicability Dates: For items for which this policy relieves a
restriction, this policy is applicable for products introduced into
interstate commerce on or after February 13, 1995. For items against
which the Commission previously stated it would not enforce under
LHAMA, the policy becomes applicable for products introduced into
interstate commerce on or after August 14, 1995.
FOR FURTHER INFORMATION CONTACT: Mary Toro, Division of Regulatory
Management, Office of Compliance and Enforcement, Consumer Product
Safety Commission, Washington, DC 20207; telephone (301) 504-0400.
SUPPLEMENTARY INFORMATION:
A. Background
In 1988, Congress enacted the Labeling of Hazardous Art Materials
Act (``LHAMA''), 15 U.S.C. 1277. Through LHAMA, Congress expressed its
desire that art materials should be labeled to warn consumers of
potential chronic hazards. LHAMA mandated a voluntary standard, ASTM D
4236, with certain modifications, as a mandatory Commission rule under
section 3(b) of the Federal Hazardous Substances Act (``FHSA'').
On October 9, 1992, the Commission issued a notice in the Federal
Register that codified the standard as mandated by Congress. 57 FR
46626. (At that time, the Commission also issued guidelines for
determining when a product presents a chronic hazard, and a
supplemental regulatory definition of the term ``toxic'' that
explicitly includes chronic toxicity.) The standard is codified at 16
CFR 1500.14(b)(8).
LHAMA and the standard it mandated provide certain requirements for
art materials. Under these requirements, the producer or repackager of
an art material must submit the product's formulation to a toxicologist
to determine whether the art material has potential to produce chronic
adverse health effects through customary or reasonably foreseeable use.
If the toxicologist determines that the art material has this
potential, the producer or repackager must use suitable labeling on the
product. The producer or manufacturer of the art material must submit
to the Commission (1) the criteria the toxicologist uses to determine
whether the producer/repackager's product presents a chronic hazard and
(2) a list of art materials that require chronic hazard labeling. The
standard also requires that the product bear or be displayed with a
conformance statement indicating that it has been reviewed in
accordance with the standard. The standard, which is set forth at 16
CFR 1500.14(b)(8), and section 2(p) of the FHSA, 15 U.S.C. 1261(p),
provide additional information on the required content of labels and
the conformance statement.
B. The Scope of ``Art Materials''
1. The Statute and Previous Commission Interpretation
The requirements described above apply to ``art materials'' as
broadly defined in LHAMA. The term art material is defined in the
statute as ``any substance marketed or represented by the producer or
repackager as suitable for use in any phase of the creation of any work
of visual or graphic art of any medium.'' 15 U.S.C. 1277(b)(1). The
definition applies to art materials intended for users of any age, but
excludes pesticides, drugs, devices, and cosmetics subject to other
federal statutes, Id. 1277(b) (1) and (2).
When the Commission issued the final rule implementing the LHAMA
provisions on October 9, 1992, it recognized that the statutory
definition of art material could be interpreted to reach far beyond the
common perception of the meaning of that term. Accordingly, the
Commission identified three categories of products that it would not
enforce the LHAMA requirements against, although they arguably fall
within the statutory definition of art materials. Specifically, the
Commission stated that it would not enforce the LHAMA requirements
against tools, implements, and furniture that were used in the process
of creating a work of art but do not become part of the work of art
(called ``category 3 products'' in the October 9, 1992 notice).
Examples provided of items that might fall into this category were
drafting tables and chairs, easels, picture frames, canvas stretchers,
potter's wheels, hammers, chisels, and air pumps for air brushes.
The Commission also delineated two general categories of products
which could fall within the statutory definition and against which the
Commission would enforce the LHAMA requirements. The October 9, 1992
notice identified these items as products which actually become a
component of the work of art (e.g., paint, canvas, inks) (previously
``category 1 products'') and products closely and intimately associated
with the creation of an art work (e.g., brush cleaners, solvents, photo
developing chemicals) (previously ``category 2 products'').
2. The Statement of Enforcement Policy
The distinctions made in the October 9, 1992 notice have proved
unsatisfactory in the practical enforcement of the LHAMA requirements.
The staff has found that these categories, and enforcement policies
based on the categories, may lead to inconsistent determinations. Thus,
the Commission began to reconsider its enforcement of the LHAMA
requirements against certain products. On March 8, 1994, the Commission
published a proposed Enforcement Policy for Art Materials. 59 FR 10761.
Today, the Commission is finalizing its enforcement policy essentially
as it was proposed. This notice restates the enforcement policy,
clarifies several issues, and responds to public comments received on
the proposal. This interpretation will supersede the enforcement policy
stated in the October 9, 1992 notice and other related interpretations.
The Commission will focus its enforcement efforts on items that
have traditionally been considered art materials, such as paints, inks,
solvents, pastes, ceramic glazes, and crayons, and on other items that
may present a risk of chronic injury. This enforcement policy will not
compromise public safety because there is virtually no risk of chronic
health effects with the types of products and materials--such as paper
or hard plastic--that the Commission will not enforce against. Also,
even if such products presented such a risk, the Federal Hazardous
Substances Act, 15 U.S.C. 1261(p), requires cautionary labeling for any
article intended or packaged for household use if it contains a
hazardous substance. This includes, but is not limited to, art
materials that, under reasonably foreseeable conditions of purchase,
storage, or use, may be used in or around the household. Unless
expressly exempted, children's articles are banned under the FHSA if
they are or contain a hazardous substance. The Commission believes that
the public interest will be better served by this exercise of
enforcement discretion because the staff can use its limited resources
more efficiently to pursue enforcement actions against those art
materials that present the greatest risk of chronic health effects.
The Commission will not enforce against the following types of
products under LHAMA.
(1) General use products. The Commission will not take enforcement
action under LHAMA against general use products which might
incidentally be used to create art, unless a particular
[[Page 8190]] product is specifically packaged, promoted, or marketed
in a manner that would lead a reasonable person to conclude that it is
intended for use as an art material. Examples of such general use
products are common wood pencils, pens, markers, and chalk. For
enforcement purposes, the Commission presumes that these types of items
are not art materials. The presumption can be overcome, however, by
evidence that such an item is intended for specific use in creating
art. Factors the Commission will consider to determine the status of
such items include how the items are packaged (e.g., packages of
multiple colored pencils, chalks, or markers unless promoted for non-
art material uses are likely to be art materials), how they are
marketed and promoted (e.g., pencils and pens intended specifically for
sketching and drawing are likely to be art materials), and where they
are sold (e.g., products sold in an art supply store are likely to be
art materials).
(2) Tools, implements, and furniture. The Commission will not take
enforcement action under LHAMA against tools, implements, and furniture
used in the creation of a work of art, such as brushes, chisels,
easels, picture frames, drafting tables and chairs, canvas stretchers,
potter's wheels, hammers, and air pumps for air brushes. In this policy
statement the Commission expands the scope of what were referred to as
``category 3'' art materials in the October 9, 1992 notice. Based on
the Commission's enforcement experience, the Commission will consider
some items that it previously categorized as closely and intimately
associated with creation of a work of art (previously ``category 2''
products) to be tools, implements and furniture. The Commission
believes that these items (brushes, kilns, and molds) are better
characterized as tools and implements against which the Commission will
not enforce the LHAMA requirements. The Commission believes this
revised interpretation is more consistent with the purposes of LHAMA.
They are not like the more traditional art materials mentioned in LHAMA
floor debates, and they are unlikely to pose a chronic hazard to the
user.
(3) Surface materials. The Commission will not take enforcement
action under LHAMA against the surface materials to which an art
material is applied. Examples are coloring books and canvas. In many
instances, an art material is applied to a surface such as paper,
plastic, wood, or cloth. These surfaces continue to be components of
the work of art and thus art materials, but are now characterized as
products against which the Commission will not enforce the LHAMA
requirements.
(4) Specific Materials. The Commission will also not take
enforcement action under LHAMA against the following specifically
enumerated materials: paper, cloth, plastic, film, yarn, threads,
rubber, sand, wood, stone, tile, masonry, and metal. Several of these
materials are often used as a surface for art work while others are
used to create the work of art itself. Regardless of whether such items
are used as a surface or not, the Commission will not enforce the LHAMA
requirements against them.
The guidance given in (3) and (4) above does not apply if the
processing or handling of a material exposes users to chemicals in or
on the material in a manner which makes those chemicals susceptible to
being ingested, absorbed through the skin, or inhaled. The Commission
believes that in most cases, the surfaces and specific materials listed
do not present a chronic risk. These types of materials are unlikely to
allow exposure. However, if it is likely that reasonably foreseeable
handling or use of the material would expose the consumer to chemicals,
the Commission will enforce all LHAMA requirements with respect to that
product. This is a question of potential exposure, not the
manufacturer's assessment of hazard. Thus, even if the chemical to
which the consumer might be exposed is potentially non-hazardous, the
Commission would enforce the LHAMA requirements, including review by a
toxicologist. This is consistent with Congress's intention that a
toxicologist, not the manufacturer, should assess the potential chronic
hazard.
For example, paper stickers marketed or promoted as art materials
often have an adhesive backing that users lick. The act of licking the
backing can result in the ingestion of chemicals, and the LHAMA
requirements will therefore be enforced. For self-adhesive stickers, on
the other hand, which present little risk of exposure, the staff will
generally refrain from enforcement unless there is reason to believe
that the nature of a particular sticker and its intended use presents a
genuine risk of exposure to a potential chemical hazard either by
ingestion or absorption.
Another example involves plastic. If the artistic use for which the
plastic is intended requires heating or melting it in a manner that
results in the emission of chemical vapors, the LHAMA requirements will
be enforced.
C. Craft and Hobby Kits and Supplies
1. Kits
a. Previous Interpretation
In enforcing LHAMA, the Commission has encountered the question of
the applicability of LHAMA requirements to certain craft or hobby kits.
The basic issue centers on the meaning of the term ``work of art.'' In
previous letters to industry, the staff has advised that the
determination depends on whether the end product produced from the kit
would be primarily functional or aesthetic. If the former were true,
the staff has said that the end product would not be a work of art and
none of the components would be art materials. If the latter were true,
the end product would be a work of art and all of the components of the
kit would be art materials. This distinction proved difficult for
practical enforcement, and has raised the possibility of inconsistent
enforcement results. For example, if the same paints that were included
in a kit to make a working model airplane were also included in a
paint-by-number set, under the staff's previous interpretation, the
Commission would enforce the LHAMA requirements against the paints in
the second kit, but not in the first.
b. Statement of Enforcement Policy
After considering the above, as well as the purpose of LHAMA to
alert consumers to the potential dangers associated with products used
in the creation of art, the Commission published its proposed policy to
clarify its enforcement of LHAMA concerning craft and hobby kits. The
Commission is finalizing that aspect of the policy as proposed. As
explained below, the Commission believes that its LHAMA enforcement
should include both (1) kits to make items for display and (2) kits
which involve decorating an item, regardless of the end use of the item
created. Models and similar kits to make hobby or art/craft items can
have dual purposes, both functional and for display. In addition, when
a consumer creatively decorates a functional object, it arguably
becomes a work of art just as decorated canvas or paper would.
Therefore, the Commission believes that materials for decorating and
assembling models and art/craft items come within the reach of LHAMA.
The Commission believes that the following interpretation is more
workable than the previous one and is consistent with the intent of
Congress.
For kits that include materials to decorate products whether the
products are functional, for display, or both, the Commission will
enforce the LHAMA [[Page 8191]] requirements against materials in the
kit that are intended to decorate or assemble an item in the kit--i.e.,
traditional art materials, such as, paints, crayons, colored pencils,
adhesives, and putties--even if the finished product is a toy or other
item whose primary use may be functional. Thus, for a kit that contains
a plastic toy or a paint-by number board, along with paints or
adhesives to decorate or assemble the item, the Commission will expect
the paints and adhesives in each case to meet all the LHAMA
requirements. However, as explained in section B.2.(3) & (4) above
pertaining to surfaces and specific materials, the Commission would not
enforce the requirements against the plastic toy or the board.
For kits that package an item that would be subject to enforcement
under this policy together with an item that would not, any necessary
chronic hazard statements or labeling, including any required
conformance statement, must appear on the outer container or wrapping
of the kit, or must be visible through it, and must specify the item to
which the statement or labeling refers. Any conformance statement must
be visible at the point of sale. In addition to being visible at the
point of sale, any required chronic hazard warning label must be on the
immediate package of the item that is subject to LHAMA as well as on
accompanying literature where there are instructions for use. See 16
CFR 1500.125.
2. Enforcement Policy for Separate Supplies
As stated in the March 8, 1994 proposal, the Commission will
enforce LHAMA requirements against materials intended to decorate art
and craft, model and hobby items, such as paints, even if they are sold
separately and not part of a kit. Similarly, paints or markers intended
for decorating clothes will be considered art materials for enforcement
purposes since they are intended for decorating clothing, even though
the resulting item, the garment, has a functional purpose. Note that as
explained in section B above, the Commission would not enforce the
requirements against the surface upon which the art material is
applied, regardless of the primary use of the finished product.
The status of glues, adhesives, and putties will depend on their
intended use. Some illustrative examples follow. Glues which are
marketed for general repair use only would not be art materials, and
the Commission will not enforce the LHAMA requirements against them.
Glue sticks for glue guns which are for art or craft use would be
considered art materials. Spray adhesives and rubber cements will
normally be considered art materials unless they are marketed for some
specialty non-art use. School pastes and glues will also be considered
art materials.
D. Conformance Statement
Section 1500.14(b)(8)(i)(C)(7) of the LHAMA rule requires that a
conformance statement appear with an art material. In the preamble to
the original LHAMA rule, the Commission stated that every art material
must display either a conformance statement or a hazard warning, but
not both. See 57 FR 46629, October 9, 1992.
The Commission has reviewed this matter in light of one comment it
received opposing the Commission's policy on this issue and its
experience enforcing the LHAMA requirements. The Commission agrees with
the commenter and is now modifying its policy concerning the
conformance statement.
The language of the standard that was mandated by LHAMA is not
entirely clear on this question. 16 CFR 1500.14(b)(8)(i)(C). However,
based on its experience enforcing LHAMA, the Commission agrees with the
commenter that there is the potential for confusion if some products
that have been reviewed according to the standard display a conformance
statement but others do not. Thus, the Commission's policy is that a
conformance statement must appear with all toxicologist-reviewed art
materials subject to LHAMA regardless of whether they also have a
hazard warning statement. A subsection has been added to the
enforcement policy, Sec. 1500.14(b)(8)(iv)(C), stating this policy.
Since the conformance statement constitutes ``other cautionary
labeling'' as defined in 16 CFR 1500.121(a)(2)(viii), it must comply
with the conspicuousness requirements of 16 CFR 1500.121 (c) and (d),
including the type-size requirement laid out in Table 1 of
1500.121(c)(2).
E. Response to Comments
1. General
The Commission heard from six commenters on its proposed
enforcement policy. For the most part, commenters supported the
Commission's effort to clarify its enforcement intentions in this area.
For example, one commenter stated that the proposed enforcement policy
alleviates practical problems, follows common sense, is consistent with
Congressional intent, and appropriately focuses on intended use.
However, commenters did raise several specific criticisms of certain
aspects of the proposed policy. These comments and the Commission's
responses are discussed below.
2. Scope of ``Art Materials''
One commenter suggested changing 16 CFR 1500.14(b)(8)(iv)(A)(1) to
state that markers sold in art supply stores are art materials, rather
than likely to be art materials.
The Commission declines to make this change. For general use
products, the Commission will look at a variety of factors, including
packaging, marketing, and where the item is sold. Often a single factor
will not be determinative. For example, along with other markers, an
art supply store might sell high-lighters which are clearly promoted
for use by students in marking textbooks. These are probably general
use products, and the enforcement policy should be flexible enough to
allow this determination.
The Writing Instrument Manufacturer's Association (``WIMA''), a
trade association for the writing instrument industry, commented that
it generally supported the proposed enforcement policy but suggested
that cased pencils (referred to as common wood pencils in the proposed
policy) should generally be considered art materials. WIMA asserted
that these pencils are generally considered in the industry to be art
materials and are used for drawing and sketching. Another commenter
argued that if the enforcement policy considers these general use
pencils not to be art materials, products from China and other
countries without consumer protection laws will flood the market.
The Commission declines to make this change in the enforcement
policy. The Commission believes that common pencils, much like pens or
markers, are generally used as writing materials. Under the policy,
specific pencils that are intended primarily for drawing or sketching
(such as colored pencils) will be considered art materials for
enforcement purposes. Of course, pencil makers who wish to submit their
formulations to a toxicologist for evaluation and label them
accordingly may do so. However, the Commission will not enforce the
LHAMA requirements against common pencils unless they are specifically
intended or marketed as art materials. Whether products are produced
domestically or imported, they are all subject to the consumer
protection laws and regulations of this country if they are sold here.
With respect to the comment concerning imports from countries
[[Page 8192]] without consumer protection laws, CPSC reminds the
commenter that imports are subject to the same requirements as products
made in this country.
One commenter stated support for the proposed enforcement policy's
treatment of brushes, kilns, and molds, finding it to be consistent
with other CPSC policy interpretations. CPSC agrees.
3. Actual Toxicity Hazards
One commenter argued that the proposed enforcement policy would
allow products which present chronic toxicity hazards to consumers to
evade the review required by LHAMA. The commenter stated that items
``such as pencils, paper, fabric, paint brushes, and sand have all been
found to present chronic toxicity hazards in the past * * *.''
The Commission's scientific staff examined this comment, and does
not agree. Neither the Commission nor the staff have concluded that any
of the listed items typically present chronic toxicity hazards. The
staff has in the past examined some uses of some of these materials
outside of the context of art materials. For example, children's
playsand was evaluated to see if the sand posed a hazard through
tremolite asbestos or non-asbestos tremolite. No such hazard was
established. Paper has been found to contain extremely small amounts of
dioxin, but the amount is so small that the risk is negligible. Through
its enforcement policy, the Commission is attempting to focus
enforcement efforts on items that may actually harm consumers. The
Commission believes this policy furthers that goal. It is worth noting
that in the unlikely event that any of these items were found to be
dangerous, the labeling and banning provisions of the Federal Hazardous
Substances Act (15 U.S.C. 1261 (f), (p), and (q)(1), and 15 U.S.C.
1263) still apply.
Another commenter agreed with the Commission's focus on potential
for genuine risk of exposure but suggested that the language of the
proposed policy be changed in 16 CFR 1500.14(b)(8)(iv)(A) (3) and (4)
to state that the user's exposure must be to a hazardous chemical
before the Commission will enforce LHAMA against the materials listed
in those subsections. In the sections referred to, the enforcement
policy provides that the Commission will not enforce the LHAMA
requirements against surface materials and certain specifically
enumerated materials unless it is likely that handling or processing
the material may expose the user to chemicals in or on the material.
The Commission declines to make the commenter's suggested change.
As explained in section B.2 above, although the Commission believes
that generally there will not be a chronic hazard with use of these
materials, the Commission is concerned that a situation could arise in
which a unique manner of handling or using these materials could pose a
risk of exposure. An example is paper stickers with adhesive that is
licked. The commenter's suggestion would put the manufacturer in the
position of deciding whether a particular chemical is hazardous.
However, Congress intended that this determination be made by the
toxicologist reviewing a product's formulation. The enforcement policy
concerns the initial question of whether exposure is likely, not
whether a chemical is hazardous. Thus, under the Commission's
enforcement policy, if there is the potential for exposure to a
chemical from a surface or specifically enumerated material, the LHAMA
requirements will be enforced.
4. Enforcing LHAMA Against Non-Hazardous Products
Comments suggested that all art materials should have to comply
with LHAMA regardless of actual risk, and that the items listed in the
proposed enforcement policy should not be excluded from enforcement
efforts. They noted that the conformance statement on a non-hazardous
product tells the consumer that the product has been cleared by a
toxicologist. An unlabeled product, on the other hand, could either
have been evaluated as non-toxic, or not evaluated at all. Thus the
commenters argue that the Commission should enforce against all art
materials, whether hazardous or not.
In response, the Commission notes that focusing its enforcement
efforts is important to ensure that the enforcement program is as
effective as possible through the effective use of the Commission's
limited resources. The Commission believes that the categories of
products against which it will no longer enforce present virtually no
risk of exposing consumers to chronic toxicity hazards. No evidence of
consumer confusion was presented with the comments, and we think any
such confusion should be minimal.
5. Conformance Statement and Warnings
As explained above, one commenter argued that the conformance
statement should accompany all art materials, including those that also
require a hazard warning. The preamble to the original LHAMA rule
stated that every art material must display either a conformance
statement or a hazard warning, but not both. See 57 FR 46629, October
9, 1992.
The Commission has reviewed this issue in light of this comment and
its experience. For reasons explained in greater detail above, the
Commission agrees with the commenter and has added a subsection to the
enforcement policy making this change.
6. Other Labeling Issues
One commenter noted that some labels bear adequate safe handling
instructions, but do not list the chronic hazards that necessitate
these precautions. LHAMA and the ASTM standard clearly require that
both the chronic hazard and the safety instructions be on the label.
Another commenter noted that facially adequate labels should be
examined for accuracy. The Commission considers this a very important
issue. If labels are inaccurate, the labels and the standard itself
become meaningless to the consumer. It is clearly unacceptable for
labels to indicate that they have been reviewed by a toxicologist (by
display of the conformance statement) if they in fact have not.
7. Kits and Supplies
One commenter stated specific support for the proposed enforcement
policy concerning kits and separate supplies.
8. Status of Enforcement Policy
One commenter argued that the Commission is actually exempting
certain products from the FHSA, and it is therefore improper to issue
an enforcement policy rather than a regulation under section 3(c) of
the FHSA (15 U.S.C. 1262(c)). The commenter argued that the enforcement
policy would create confusion.
The Commission disagrees with this comment. This policy does not
exempt any items from the FHSA. First, the policy does not grant
exemptions from the LHAMA provisions, but rather clarifies the
Commission's interpretation of the statutory term ``art material'' and
informs the public that the Commission's enforcement efforts under
LHAMA will be directed against those products that present the greatest
risk. Through this policy, the Commission is explaining what that means
in practice. The policy explains how the Commission will interpret the
statutory definition of ``art material'' for purposes of enforcement
and that it does not intend to enforce LHAMA [[Page 8193]] requirements
against certain items or materials which are unlikely to present a
chronic hazard. The Commission believes that the policy, with its
general guidance and specific examples, will help to clarify existing
confusion. The enforcement policy will be published in the CFR with the
LHAMA regulations so that all will be aware of Commission policy. In
addition, the policy has no impact on the enforcement of other
provisions of the FHSA, such as recall or notice actions under section
15 of the FHSA, as to art materials.
Focusing enforcement efforts to make them maximally effective is an
appropriate use of an enforcement policy. The commenter stated that
enforcement policies should clarify where an agency will take action,
rather than where it will not. No authority was cited for this
proposition, and the Commission is not aware of any such authority.
However, the Commission is modifying the language of section
1500.14(b)(8)(iv)(A)(1) slightly to clarify its interpretation with
respect to that one category of products. The Commission does not
consider the products described in that subsection (products intended
for general use) to be art materials under the statutory definition.
This is now stated explicitly in that subsection.
9. Effective Date
One commenter requested that manufacturers have one year to comply
with this enforcement policy, rather than six months. No data were
submitted as to why compliance in six months would be unduly
burdensome. The Commission believes that six months is adequate time to
submit formulae to toxicologists and comply with relevant labeling
requirements. The Commission will, however, apply the policy to those
products initially introduced into interstate commerce after six
months, rather than those manufactured or imported after that date.
10. Prohibition of Lead in Children's Products
One commenter suggested that the Commission should prohibit the use
of lead in products intended or marketed for the use of children. This
comment is beyond the scope of this enforcement policy. However, we
remind the commenter that the hazard of lead in consumer products
intended for children is dealt with by regulations under the CPSA, 16
CFR 1303.4, and provisions of the FHSA, 15 U.S.C. 1261 (f)(1)(A) &
(q)(1)(A).
F. Environmental Considerations
The Commission has considered whether issuance of this enforcement
statement will produce any environmental effects and has determined
that it will not. The Commission's regulations at 16 CFR 1021.5(c)(1)
state that rules and safety standards ordinarily have little or no
potential to affect the human environment, and therefore, do not
require an environmental impact statement or environmental assessment.
The Commission believes that, as with such standards, this enforcement
policy would have no adverse impact on the environment.
G. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act generally requires agencies to
prepare proposed and final regulatory analyses describing the impact of
a rule on small businesses and other small entities. Section 605 of the
Act provides that an agency is not required to prepare a regulatory
flexibility analysis if the head of an agency certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. The Commission believes that this enforcement statement
will have little effect on businesses in general or on small businesses
in particular. Accordingly, the Commission concludes that its
enforcement statement concerning the labeling of hazardous art
materials would not have any significant economic effect on a
substantial number of small entities.
H. Authority
Section 10 of the FHSA gives the Commission authority to issue
regulations for the efficient enforcement of the FHSA. 15 U.S.C.
1269(a). This provision authorizes the Commission to issue statements
of enforcement policy in which the Commission explains how it intends
to enforce a Commission requirement.
I. Applicability Date
Since this notice issues an interpretative rule/statement of
policy, no particular applicability date is required by the
Administrative Procedure Act. 5 U.S.C. 553(d)(2). The Commission
recognizes, however, that as to items against which the Commission
previously stated that it would not enforce LHAMA, manufacturers will
need time to bring their products into compliance. Thus, this policy
regarding such items applies to products introduced into interstate
commerce on or after 6 months from the date this policy is published in
the Federal Register. The Commission believes that this is adequate
time to submit formulae to toxicologists and comply with relevant
labeling requirements. As to those items where this policy relieves a
restriction, the policy becomes applicable for such products introduced
into interstate commerce on or after the date of publication of this
notice.
List of Subjects in 16 CFR Part 1500
Arts and crafts, Consumer protection, Hazardous materials,
Hazardous substances, Imports, Infants and children, Labeling, Law
enforcement, Toys.
For the reasons given above, the Commission amends 16 CFR 1500.14
as follows:
PART 1500--[AMENDED]
1. The authority citation for part 1500 continues to read as
follows:
Authority: 15 U.S.C. 1261-1277.
2. Section 1500.14 is amended by adding a new paragraph (b)(8)(iv)
to read as follows:
Sec. 1500.14 Products requiring special labeling under section 3(b) of
the Act.
* * * * *
(b) * * *
(8) * * *
(iv) Policies and interpretations.
(A) For purposes of enforcement policy, the Commission will not
consider as sufficient grounds for bringing an enforcement action under
the Labeling of Hazardous Art Materials Act (``LHAMA'') the failure of
the following types of products to meet the requirements of
Sec. 1500.14(b)(8) (i) through (iii).
(1) Products whose intended general use is not to create art (e.g.,
common wood pencils, and single colored pens, markers, and chalk),
unless the particular product is specifically packaged, promoted, or
marketed in a manner that would lead a reasonable person to conclude
that it is intended for use as an art material. Factors the Commission
would consider in making this determination are how an item is packaged
(e.g., packages of multiple colored pencils, chalks, or markers unless
promoted for non-art materials uses are likely to be art materials),
how it is marketed and promoted (e.g., pencils and pens intended
specifically for sketching and drawing are likely to be art materials),
and where it is sold (e.g., products sold in an art supply store are
likely to be art materials). The products described in this paragraph
do not meet the statutory definition of ``art material.''
[[Page 8194]]
(2) Tools, implements, and furniture used in the creation of a work
of art such as brushes, chisels, easels, picture frames, drafting
tables and chairs, canvas stretchers, potter's wheels, hammers, air
pumps for air brushes, kilns, and molds.
(3) Surface materials upon which an art material is applied, such
as coloring books and canvas, unless, as a result of processing or
handling, the consumer is likely to be exposed to a chemical in or on
the surface material in a manner which makes that chemical susceptible
to being ingested, absorbed, or inhaled.
(4) The following materials whether used as a surface or applied to
one, unless, as a result of processing or handling, the consumer is
likely to be exposed to a chemical in or on the surface material in a
manner which makes that chemical susceptible to being ingested,
absorbed, or inhaled: paper, cloth, plastics, films, yarn, threads,
rubber, sand, wood, stone, tile, masonry, and metal.
(B) For purposes of LHAMA enforcement policy, the Commission will
enforce against materials including, but not limited to, paints,
crayons, colored pencils, glues, adhesives, and putties, if such
materials are sold as part of an art, craft, model, or hobby kit. The
Commission will enforce the LHAMA requirements against paints or other
materials sold separately which are intended to decorate art, craft,
model, and hobby items. Adhesives, glues, and putties intended for
general repair or construction uses are not subject to LHAMA. However,
the Commission will enforce the LHAMA requirements against adhesives,
glues, and putties sold separately (not part of a kit) if they are
intended for art and craft and model construction uses. This paragraph
(b)(8)(iv)(B) applies to products introduced into interstate commerce
on or after August 14, 1995.
(C) Commission regulations at Sec. 1500.14(b)(8)(i)(C)(7) require
that a statement of conformance appear with art materials that have
been reviewed in accordance with the Commission standard. The
Commission interprets this provision to require a conformance statement
regardless of the presence of any chronic hazard warnings.
(D) Nothing in this enforcement statement should be deemed to alter
any of the requirements of the Federal Hazardous Substances Act
(``FHSA''), such as, but not limited to, the requirement that any
hazardous substance intended or packaged in a form suitable for
household use must be labeled in accordance with section 2(p) of the
FHSA.
Dated: February 6, 1995.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 95-3450 Filed 2-10-95; 8:45 am]
BILLING CODE 6355-01-P
