May 22, 2009

Get the Lead out of Getting the Lead out

One shoe has dropped on the issue of the lead ban that has effectively led to the ban of youth motorcycles and all-terrain vehicles, but the manufacturers and retailers of the products feel another shoe has to drop for the issue to be resolved. As you might have read here in recent weeks, in compliance with the recent Consumer Product Safety Improvement Act (CPSIA), the Consumer Product Safety Commission (CPSC) essentially banned the sale and importation of virtually all youth motorcycles and ATVs because of their lead content. This caused a hue and cry from industry groups, which noted that the intent of the CPSIA was not to outlaw kids’ motorcycles but to outlaw lead-tainted toys that kids might swallow or suck on.

In response to the commotion, CPSC Acting Chairman Nancy Nord and Commissioner Thomas Moore issued a stay of enforcement from the new lead content limits contained in the act for ATVs and motorcycles. Several industry groups -- including the Coalition for Safe and Responsible Use, the Motorcycle Industry Council (MIC) and the Specialty Vehicle Institute of America (SVIA) -- applauded that action, but they also say it doesn’t go far enough.

“Although the commissioners’ intentions are laudable,” said the industry groups in a statement, “it is clear that the stay of enforcement as drafted is a temporary stop-gap measure with conditions largely unrelated to safety. It does not and cannot end the ban on these vehicles. Due to the highly restrictive language of the CPSIA and the fact that the CPSC is not the only agency responsible for enforcing the law, this stay of enforcement is simply inadequate in legal terms and leaves the industry vulnerable to lawsuits and actions by federal and state agencies.”

The coalition said that because the CPSIA has now branded these products as “banned hazardous substances” for their minimal lead content, they cannot be imported into the United States. U.S. Customs and Border Protection is responsible for enforcing this ban, so the CPSC stay cannot bind this separate federal agency to follow it. Nor would the proposed stay prevent state Attorneys General from taking enforcement action against companies that make, import or sell the motorcycles and ATVs for youth riders.

“It is clear that the only way to obtain adequate and permanent relief for riders and the powersports industry from the CPSIA’s lead content requirements is for Congress to take action,” the industry groups concluded. “The CPSIA must be amended to grant an exemption for youth ATVs, motorcycles and other off-highway vehicles, which present no lead-related health risk to children.”