[Federal Register: March 8, 1994]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1500
Statement of Policy or Interpretation; Proposed Enforcement
Policy for Art Materials
AGENCY: Consumer Product Safety Commission.
ACTION: Proposed 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 proposing a statement of enforcement
policy to more clearly apprise the public of its intended enforcement
focus.
DATES: Comments on the proposal should be submitted not later than May
9, 1994.
ADDRESSES: Comments should be mailed to the Office of the Secretary,
Consumer Product Safety Commission, Washington, DC 20207-0001, or
delivered to the Office of the Secretary, Consumer Product Safety
Commission, room 502, 4330 East West Highway, Bethesda, Maryland,
telephone (301) 504-0800.
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 amended the Federal Hazardous Substances Act
(``FHSA''), 15 U.S.C. 1261-1277, when it enacted the Labeling of
Hazardous Art Materials Act (``LHAMA''), 15 U.S.C. 1277, concerning the
labeling of art materials to warn 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 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 included
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
who will review the formulation to determine if the art material has
potential to produce chronic adverse health effects through customary
or reasonably foreseeable use. If the toxicologist does determine that
the art material has this potential, the toxicologist will recommend
appropriate hazard labeling, and the producer or repackager must use
suitable labeling on the product. The producer or manufacturer of the
art material must submit to the Commission the criteria the
toxicologist uses to determine whether the producer/repackager's
product presents a chronic hazard and a list of art materials that
require chronic hazard labeling. If no chronic hazard labeling is
needed, a conformance statement indicating that the product has been
reviewed in accordance with the standard as required must appear on or
with the product. 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
further information on the content of appropriate labels and the
conformance statement.
B. The Scope of ``Art Materials''
These requirements apply to ``art materials'' as broadly defined in
LHAMA. Excluding pesticides, drugs, devices, and cosmetics subject to
other federal statutes, the term art material means ``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. Id. 1277(b)(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 could be art
materials under this statutory definition. The Commission stated in
that notice that it would not enforce the 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 of
stated 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. These were 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'').
These distinctions have been unsatisfactory in the practical
enforcement of the LHAMA requirements. These categories, and
enforcement policies based on the categories, may lead to
determinations that are inconsistent. Thus, the Commission is
reconsidering its enforcement of the LHAMA requirements against certain
products. This interpretation would supersede the enforcement policy
stated in the October 9, 1992 notice and other related interpretations.
To concentrate on art materials that are more likely to present a
risk of chronic health effects, the Commission will focus its
enforcement on items that have traditionally been considered art
materials, such as paints, inks, solvents, pastes, ceramic glazes, and
crayons and 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
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 resources to pursue enforcement actions
against those art materials that present the greatest risk.
The Commission will not enforce against the following types of
products.
(1) The Commission will not take enforcement action against general
use products which might incidentally be used to create art, unless a
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. 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) The Commission will not take enforcement action 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.
(3) The Commission will not take enforcement action 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) The Commission will also refrain from taking enforcement action
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 use, 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. 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 LHAMA requirements should be
complied with. 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, LHAMA
requirements apply.
C. Craft and Hobby Kits and Supplies
1. Kits
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 resulted in some inconsistent
enforcement results. For example, if 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, even though they are the same paints.
The Commission has considered this anomaly, as well as the purpose
of LHAMA to alert consumers to the potential dangers associated with
products used in the creation of art. 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 be. 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 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, and paints to decorate the toy or board
itself, or adhesives to assemble the toy, the Commission will expect
the paints and adhesives in both cases to meet all the LHAMA
requirements, but would not enforce the requirements against the
plastic toy or the board, even though the toy or board may technically
be classified as an art material.
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 and must specify the item to which the statement or labeling
refers. Any conformance statement must be 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.
When packaged within a point of sale package, i.e. a kit, which
obscures the warning statement, the point-of-sale package must bear the
label statement specified in 16 CFR 1500.14(b)(8)(i)(E)(9)(ii).
2. Separate Supplies
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. Environmental Considerations
The Commission has considered whether issuance of this proposed
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
proposed enforcement policy would have no adverse impact on the
environment.
E. 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 proposed enforcement
statement will have little effect on businesses in general or on small
businesses in particular. Accordingly, the Commission preliminarily
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.
F. 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.
G. Effective Date
Since this notice proposes an interpretative rule/statement of
enforcement policy, no particular effective 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. Any final policy
regarding such items would apply to products manufactured or imported
an appropriate period, such as six months, or more after publication 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 effective date would be immediate.
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 proposes to amend 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(b)(8) 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 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).
(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 to 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 material in a manner
that 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 enforcement policy, the Commission will enforce
against materials such as, 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, or hobby
items. Adhesives, glues, and putties intended for general repair 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, craft, model, or hobby
uses. This subparagraph (B) applies to products manufactured or
imported six months or more after these regulations are published in
the Federal Register.
(C) Nothing in this enforcement statement should be deemed to alter
the requirement of the Federal Hazardous Substance Act 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
Act.
Dated: March 1, 1994.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 94-5289 Filed 3-7-94; 8:45 am]
BILLING CODE 6355-01-P