Statement of Policy or Interpretation; Proposed Enforcement Policy for Art Materials

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