Know what is in your environment

It was recently suggested to me that I become a spokesperson for XRF flexibility for small businesses associated with the Consumer Product Safety Improvement Act (CPSIA) and assist small businesses with their reasonable testing programs.  For two years, my business (Essco – Safety Check) has been providing XRF mobile testing services to people and businesses, assisting them with elemental information and knowledge of their environment.  I am happy to offer my services as such a spokesperson.

Small businesses from coast to coast have contacted us this past year asking us to help them with the “insanity,” as one woman said, of the CPSIA.  We have been trying to assist them with compliance of regulations with children’s products, while reducing their testing expenses and helping them get their products to market faster.

In August 2008, President Bush signed the CPSIA into law.  This law restricts the amount of certain heavy metals in children’s products, among other regulations.   More to the point, there are two main elemental testing requirements; total lead content and soluble content of several elements (ASTM F963).  It requires manufactures, importers and retailers to ensure that their products comply with regulations.
 
The CPSIA requires specific testing methods for determining lead and other heavy metals in children’s products, and further requires certification of testing by a third party approved laboratory.  The testing methods required are destructive in nature and expensive.

Currently, there is a stay on the enforcement of certain testing requirements and certification, until 2/10/11.  Certain testing of children’s products are not stayed and need to be certified by third-party accredited laboratories; lead in paint, small parts, cribs, pacifiers and children’s metal jewelry.  All children’s products must meet the required limits for lead and other metals, but only those mentioned above need to be tested by a CPSC-recognized third-party conformity assessment body.

Yet, within the CPSIA there is a term “reasonable testing program” and many small businesses have asked me about this. 

What is a reasonable testing program?  According to the Consumer Product Safety Commission (CPSC) Guidance Document: Testing and Certification Requirements under the Consumer Product Safety Improvement Act (CPSIA)

A reasonable testing program is a set of procedures that are employed to provide reasonable certainty that products made are in compliance with all applicable rules, bans, and standards. The minimum essential elements are:

(1) Product specifications that describe the consumer product and list the safety rules, standards, etc., with which the product must comply;
(2) Certification tests, which are performed on samples of the manufacturer’s consumer product to demonstrate that the product is capable of passing the tests prescribed by the standards;
(3) A production testing plan, which describes the tests that must be performed and at what intervals as long as the consumer product is being manufactured to provide reasonable assurance that the products as produced continue to meet all applicable safety rules;
(4) Remedial action plans, which must be employed whenever samples of the consumer product or results from any other tests used to assess compliance yield unacceptable or failing test results; and
(5) Documentation of the reasonable testing program and how it was implemented.
The CPSC expects that any general conformity certificate will be based upon a testing program that, at a minimum, includes these five elements.

Merriam-Webster dictionary defines reasonable as:

Main Entry: rea•son•able
Pronunciation: \?r?z-n?-b?l, ?r?-z?n-?-b?l\
Function: adjective
Date: 14th century
1 a : being in accordance with reason <a reasonable theory> b : not extreme or excessive <reasonable requests> c : MODERATE, FAIR <a reasonable chance> <a reasonable price> d : INEXPENSIVE
2 a : having the faculty of reason b : possessing sound judgment <a reasonable man>

Is it reasonable to therefore ask a small business, which has limited revenue dollars, to pay for a testing method that is expensive and destructive, specifically when a non-destructive, less expensive testing method is currently available?  Would it be extreme or excessive for a business to have to lay people off to pay for destructive testing methods?

Is it reasonable to ask small manufacturer to pay more for testing than they make in revenue?  That is a common problem that I hear from my customers, “testing is so expensive, the cost of testing will put me out of business.”  Or, “I can only afford to test a few items so I will only make a few different products.”

In this guidance document, there is a question about one-of-a-kind items and must they receive third-party tests on each product?  In the first sentence of the response, the CPSC says that “testing required by the applicable product safety rules would be impractical.”

Component testing is offered as an option, yet that is still very expensive and destructive, and in no place in this guidance is X-Ray Fluorescence (XRF) offered as an option, the CPSC has talked and written about XRF many times.

In regards to ASTM-F963 (the soluble metals standards for lead, cadmium, arsenic, mercury, antimony, selenium, chromium and barium), manufactures, importers and sellers must ensure that their products conform to all the applicable regulations, but a notice of requirement for this particular standard, rule and regulation has not been issued yet.  Therefore, certificate of compliance based on the results of testing by a CPSC-recognized third-party conformity assessment body will not be required until 90 days after the commission issues the notice of requirements for ASTM F963.

What does all of this mean in terms of a reasonable testing program?  It appears to me that all children’s products that are not painted, have small parts (designed for children 3and under), a crib, pacifier or children’s metal jewelry can use a reasonable testing program until 90 days after the CPSC has issued requirements for ASTM F963 or the stay of enforcement has been lifted.

The XRF Analyzers that we use can detect lead as little as 10 PPM and are certified by the EPA and HUD for lead testing of government properties.  Yet there is some criticism that they are inaccurate in their quantification in terms of consumer products and different substrates.  Let us just use some common sense and forget any quantification by XRF about any elements for a moment.

For starters, XRF analyzers are non-destructive, mobile testing platform that can identify all eight elements associated with ASTM F963.  Using the spectrum data, we can accurately determine if an element is present or not present. 

Let me remind you, forgetting the quantification or amount of an element found (for example the current regulation for lead is 300 PPM in children’s products that are not painted), if we don’t find lead, it isn’t there in the area we tested.  If we don’t find any elements, why would you require further destructive, expensive testing?

Now if we find lead using XRF analyzers, there can be a question to how much lead is actually present.   As a business, we are working on this solution, but for now, I would suggest that if we find lead, further testing should take place using traditional testing methods.  Or, the manufacturer can change materials and have us further test.  If we find lead, it starts all over again.  If we don’t find lead, why would you require more testing?  This should be part of the remedial action plan for the reasonable testing program.

XRF gives manufactures a mobile, non-destructive means for identifying if elements are present or not present.  Further analysis of the spectrum detail gives us evidence if the elements are present or not present. 

What am I suggesting?  I believe that XRF analyzers gives businesses the appropriate testing results to use for a reasonable testing program on children’s products that are not painted or metal children’s jewelry.  (I believe we will be able to provide accurate quantification for children’s products in the future)

Wouldn’t it be reasonable to use a technology that is non-destructive and readily available to test children’s products for lead and other regulated heavy metals?  Logically speaking, if there is not a requirement for specific testing on non-painted or children’s jewelry types of items (i.e. plastic toys), wouldn’t it be reasonable to conclude that XRF could be used to create certificates of conformity and thus be part of a reasonable testing program?

The requirements set out by the CPSC, in my opinion, can be completed with XRF testing and information provided by the manufacturer.

What are your thoughts about this issue?