Effective January 1, 2010, the Illinois Lead Poisoning Prevention Act will require that certain products intended for children bear a lead warning label.
The Illinois law states that children's jewelry, child care articles and toys containing paint must bear a warning label if the total lead content of any component part of these items exceeds 40 parts per million (ppm) but is less than 600 ppm by total weight, or a lower standard for lead content as may be established by federal or state law or regulation. With the implementation of the U.S. Consumer Product Safety Improvement Act of 2008 (CPSIA), the total lead content of products intended for children currently cannot exceed 300 ppm, and lead in paint and similar surface coatings for these and certain other items cannot exceed 90 ppm. Therefore, as of January 1, 2010, in the state of Illinois, a warning label would be required for these specified items (children's jewelry, child care articles and toys containing paint) if their total lead content is between 40 ppm and 300 ppm or if lead in their paint or surface coatings is between 40 ppm and 90 ppm. Items exceeding the CPSIA limits cannot be distributed or sold in Illinois or in any other U.S. state.
The Illinois law further prescribes that any such warning label must appear on the product itself or on the label of the product's immediate container and must include at least the following statement: "WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD." The warning must be conspicuous, legible, and located in a prominent place on the item or package, and it must contrast with the typography, layout and color of the other printed matter.
Very little guidance about these new requirements has been issued by the state of Illinois. However, in a letter to the Illinois Retail Merchants Association dated May 4, 2009, Cara L. Smith, deputy chief of staff for the Illinois Attorney General, offered the following two clarifications:
- For a toy containing paint to require a warning label, the paint on the surface of the toy must contain lead within the stated parameters. Paint that is not on the surface of the toy that contains lead within these parameters is not subject to this requirement.
- In regards to child care articles, the purpose of the law is to ensure that items which are intended to be placed in a child's mouth, such as pacifiers, bottles and nipples, teething rings, eating utensils, cups and bibs, bear a warning label if the item contains lead within the stated parameters.
Illinois Attorney General Lisa Madigan maintains that the CPSIA does not preempt the Illinois Lead Poisoning Prevention Act on the basis that the Illinois law merely prescribes a warning and does not impose actual lead limits. Any preemption challenge that might be initiated would be subject to litigation and would need to be resolved in court. Manufacturers and importers who do not comply with the warning label requirement as of January 1, 2010, may be subject to prosecution and penalties by the state of Illinois.
In the coming weeks, the state of Illinois is expected to issue regulations for the purposes of applying and enforcing the statute. STR continues to monitor closely any ongoing developments pertaining to the Illinois lead statute and will bring you the latest information as it occurs via our Monitor newsletter and News Alerts.
Definitions:
"Children's jewelry" means jewelry that is made for, marketed for use by, or marketed to children under the age of 12 and includes jewelry that meets any of the following conditions:
(1) represented in its packaging, display, or advertising as appropriate for use by children under the age of 12;
(2) sold in conjunction with, attached to, or packaged together with other products that are packaged, displayed, or advertised as appropriate for use by children under 12;
(3) sized for children and not intended for use by adults; or
(4) sold in any of the following places: a vending machine; a retail store, catalogue, or online Web site in which a person exclusively offers for sale products that are packaged, displayed, or advertised as appropriate for use by children; or a discrete portion of a retail store, catalogue, or online Web site in which a person offers for sale products that are packaged, displayed or advertised as appropriate for use by children.
"Child care article" means an item that is designed or intended by the manufacturer to facilitate the sleep, relaxation, or feeding of children under the age of 6 or to help with children under the age of 6 who are sucking or teething.
"Toy containing paint" means a painted toy designed for or intended for use by children under the age of 12 at play. In determining whether a toy containing paint is designed for or intended for use by children under the age of 12, the following factors shall be considered:
(i) a statement by a manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable;
(ii) whether the product is represented in its packaging, display, promotion, or advertising as appropriate for children under the age of 12; and
(iii) whether the product is commonly recognized by consumers as being intended for use by a child under the age of 12.
Lead Poisoning Prevention Act - Illinois Compiled Statute