Seven days ago in the post, Forget Guns and Ammo, It’s Time to Hoard Ink Pens, I shared news about how the Consumer Product Safety Commission was expected to issue a ruling regarding whether or not 95 percent of all ink pens sold for use in schools or by children under the age of 12 should be yanked from store shelves because their lead content exceeds government-allowed levels. Today, that decision finally arrived in the form of a three-page letter from CPSC, and it’s as clear as mud.
After using the entire first page of the ruling to restate the requests, statements, assertions and claims made by lawyers for the Writing Instrument Manufacturers Association in their petition to the Commission, CPSC General Counsel Cheryl A. Falvey launched into the second page of her response letter as if writing to a child:
The Commission has not declared all pens to be “children’s products;” to the contrary, in its “FAQs For Section 101: Children’s Products Containing Lead; Lead Paint Rule,” there is one question asking whether it is “okay” for children to use ball point pens. The Commission’s staff response was:
The lead ban is applicable to children’s products containing lead. The term, “children’s product” means a consumer product designed or intended primarily for children 12 years of age or younger. Accordingly, to the extent that these pens are general purpose items not being marketed to, or advertised as being intended for use by children 12 years or younger, these pens would not be subject to the lead limits under CPSIA.
By the tone of Falvey’s letter, I get the feeling she thinks she should not be bothered by lowly executives working on behalf of a $4.8 billion industry.
Thus, the Commission staff has already made clear and, by its approval of this letter, the Commission has confirmed that the vast majority of pens and roller ball pens are not primarily intended for children, whether or not they are sold for use in schools. A “general purpose” pen would not need exclusion from the lead limits because such pens are not “children’s products.”
Later, Falvey tackles the issue of “novelty pens”:
The majority of “novelty pens” are not considered to be primarily intended for children. Even if a pen were colorful, decorated or embellished, such colors, decorations or embellishments, along, might not result in a “children’s product.” For example, a simple ball point stick pen with the name of an elementary school embossed on it without any other decorations would appeal to anyone (i.e. students, teachers, parents) connected with the school Even a pen with a cartoon character may have mass appeal and not be intended primarily for children if its price point and marketing suggest that it is intended for both adults and children. Pens marketed to executives with puzzle features that allow the user to take it apart and reconfigure the design are also likely to appeal to adults and children alike. Pens that are as likely to be used by adults as by children do not fall within the scope of section 101(a) of the CPSIA because the pens are not marketed to, and used primarily by children, and therefore do not require testing and certification for lead content. Moreover, just because an ordinary ball point pen might be marketed once a year as a back to school item does not convert that pen from a general purpose item to a children’s product under the CPSIA.
Only those pens that are considered to be “children’s products” as defined by the CPSIA are subject to section 101(a) of the CPSIA and exclusion under section 101(b) of the CPSIA. Determining whether a particular pen is a “children’s product” may depend upon multiples features, but it should be understood that only pens that are “children’s products” — rather than all pens — are required by the Commission to be evaluated further to assess whether they contain lead above the lead content limits. To the extent, however, that WIMA is inquiring about general use pens in the request for exclusion, including those that are sold to school systems and retailers, those pens would not be subject to the lead limits and testing and certification requirements of the CPSIA.
I don’t know about you, but I’m going to stick with crayons and chalk from this point forward or until things become more clear. That declaration, of course, is based upon the assumption both writing tools are safe. Perhaps I should ask Ms. Falvey for an opinion?