Illinois Legislation Could Undermine CPSIA Preemption of State Lead Laws

Illinois has amended its Lead Poisoning Prevention Act to include a warning label requirement—which it says is not preempted by the Consumer Product Safety Improvement Act (CPSIA). Effective Jan. 1, 2010, the Illinois law requires that certain products for children age 12 and under (including jewelry) with a lead content that falls below the CPSIA’s current 300 parts per million (ppm) limit but is more than 40 ppm, must have a label with the following language: "WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD."

How can the state pass new lead regulations, when the CPSIA was intended to preempt most state lead laws? The Illinois attorney general and legislature don’t think their amendment conflicts with the CPSIA, because that law doesn’t include warning labels (CPSIA only requires a tracking label). Illinois officials also want to warn residents of items containing lead that fall below CPSIA’s limits.

Manufacturers and importers that do not conform to the warning label requirement “risk being sued in Illinois for failure to disclose lead in children’s products,” says attorney John W. Moss. Based in the Washington, D.C., office of the law firm Winston & Strawn, Moss wrote an analysis of the Illinois amendment published by Law 360, an online legal information publication.

Moss says courts could conclude that failure to comply constitutes deceptive advertising under state laws. He adds that manufacturers complying with the new law could also sue competitors that don’t comply, “based on an unfair competition theory that lead-containing goods are being passed off as lead-free goods.”

Though the Consumer Product Safety Commission could still step in to argue that Illinois’s new law should be preempted by the CPSIA, Moss thinks that, ultimately, the issue will be resolved in court. Unfortunately, a recent trend in court decisions is for judges to rule against various federal preemptions of state product safety laws, in an attempt to preserve the traditional power of the states to regulate product safety, he says.

Given the CPSC’s recent exemption of precious metals and gems from the CPSIA’s testing and certification requirements (see August 2009 Up to Date), will this mean those materials will once again be subject to lead regulations? According to MJSA Lead Quality Assurance Program consultant J. Tyler Teague of JETT Research in Johnson City, Tennessee, once lead levels rise over 30 ppm, the lead begins to wreak havoc in precious metal jewelry, causing cracking. Thus, precious metal jewelry suppliers will likely find that their products contain less than the Illinois limit of 40 ppm. However, a supplier’s customers may still demand testing and certification to prove that such jewelry doesn’t require a label—in which case, manufacturers of precious metal and gem-set jewelry will be forced to make investments that, to many minds, aren’t warranted.

MJSA will monitor the Illinois law, give voice to the industry’s concerns, and provide updates if other states “copycat” this new warning label requirement.

Related Links

For a full text of the new Illinois Public Act 095-1019, click here.

To go to "Lowering Lead," the MJSA guide to compying with the CPSIA, click here.

For more about the exemption of precious metals and gems from the CPSIA requirements, click here.

For more about the clarification of CPSIA tracking label requirements, click here.