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Must Playground Equipment & Surfaces Comply with CPSC Lead Limits for Children’s Products?

shutterstock_252171946Over the past few months, numerous national media outlets have published stories about the potential health risks of a material commonly used on playground surfaces—crumb rubber.  Crumb rubber is a granule material typically made from recycled scrap tires that is used to provide a soft play surface for playgrounds (and infill for artificial turf fields).  Recently, some have questioned whether crumb rubber surfaces are safe for children to play on due to the materials’ potential toxicity.

From this debate, a narrower, more legally technical question has arisen over whether playgrounds—many of which use crumb rubber as a play surface—constitute “children’s products” under the Consumer Product Safety Act (“CPSA”).  A “children’s product” is defined under that law as a consumer product designed or intended primarily for children 12 years of age or younger and any children's product must meet CPSC's requirements for lead content, lead paint, third party testing and certification, tracking labels, and other regulations.  According to Public Employees for Environmental Responsibility (PEER), the U.S. Consumer Product Safety Commission (CPSC) has decided not to enforce the strict lead limits that apply to children's products for playgrounds with crumb rubber play surfaces.

In a recent letter sent to CPSC Chairman Elliot Kaye about the crumb rubber issue, Senators Richard Blumenthal (D-CT) and Bill Nelson (D-FL) asked:

"Does CPSC staff believe that crumb rubber or synthetic turf products marketed primarily towards primary schools should comply with the lead limits applicable to children’s products under Section 101 of the Consumer Product Safety Improvement Act of 2008?”

CPSC staff has indicated that the answer to this question is yes, providing the following guidance on the agency's website:

Question: Are outdoor playground products required to comply with the total lead limits? Answer: Yes, provided that the outdoor playground equipment is designed for and primarily intended for use by children 12 years of age or younger.”

The regulation defining a “children’s product” also states that sporting goods and recreational equipment (the latter of which may include playground equipment and products) are not children's products “unless such items are specifically marketed to children 12 years of age or younger, or have extra features that make them more suitable for children 12 years of age or younger than for adults.”

If playground products designed or intended primarily for children 12 years of age or younger are properly characterized as “children’s products” under the law, a decision will also need to be made about how this applies to the crumb rubber playground surfaces. Is the playground surface a children’s product or does it depend upon marketing or the other factors considered when determining whether a product is a children’s product?  If some of these playground surfaces are considered children’s products, could they be granted some type of class-wide relief from the lead limits as at least one other product has in the past?  The CPSC's response to the congressional letter should provide some insight into the answers to these questions and may also provide additional guidance for the sometimes complex analysis to determine whether a product is a children's product.

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