[Federal Register Volume 60, Number 29 (Monday, February 13, 1995)]
[Rules and Regulations]
[Pages 8188-8194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3450]



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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1500


Statement of Policy or Interpretation; Enforcement Policy for Art 
Materials

AGENCY: Consumer Product Safety Commission.

ACTION: Final rule; 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 issuing a statement of enforcement 
policy to more clearly apprise the public of its intended enforcement 
focus.

[[Page 8189]] DATES: Effective Date; February 13, 1995.
    Applicability Dates: For items for which this policy relieves a 
restriction, this policy is applicable for products introduced into 
interstate commerce on or after February 13, 1995. For items against 
which the Commission previously stated it would not enforce under 
LHAMA, the policy becomes applicable for products introduced into 
interstate commerce on or after August 14, 1995.

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 enacted the Labeling of Hazardous Art Materials 
Act (``LHAMA''), 15 U.S.C. 1277. Through LHAMA, Congress expressed its 
desire that art materials should be labeled to warn consumers 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 Federal Hazardous Substances Act (``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 includes 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 
to determine whether the art material has potential to produce chronic 
adverse health effects through customary or reasonably foreseeable use. 
If the toxicologist determines that the art material has this 
potential, the producer or repackager must use suitable labeling on the 
product. The producer or manufacturer of the art material must submit 
to the Commission (1) the criteria the toxicologist uses to determine 
whether the producer/repackager's product presents a chronic hazard and 
(2) a list of art materials that require chronic hazard labeling. The 
standard also requires that the product bear or be displayed with a 
conformance statement indicating that it has been reviewed in 
accordance with the standard. 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 additional information on the required content of labels and 
the conformance statement.

B. The Scope of ``Art Materials''

1. The Statute and Previous Commission Interpretation

    The requirements described above apply to ``art materials'' as 
broadly defined in LHAMA. The term art material is defined in the 
statute as ``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, but 
excludes pesticides, drugs, devices, and cosmetics subject to other 
federal statutes, Id. 1277(b) (1) and (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 it would not 
enforce the LHAMA requirements against, although they arguably fall 
within the statutory definition of art materials. Specifically, the 
Commission stated that it would not enforce the LHAMA 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 provided of 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. The October 9, 1992 
notice identified these items as 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'').

2. The Statement of Enforcement Policy

    The distinctions made in the October 9, 1992 notice have proved 
unsatisfactory in the practical enforcement of the LHAMA requirements. 
The staff has found that these categories, and enforcement policies 
based on the categories, may lead to inconsistent determinations. Thus, 
the Commission began to reconsider its enforcement of the LHAMA 
requirements against certain products. On March 8, 1994, the Commission 
published a proposed Enforcement Policy for Art Materials. 59 FR 10761. 
Today, the Commission is finalizing its enforcement policy essentially 
as it was proposed. This notice restates the enforcement policy, 
clarifies several issues, and responds to public comments received on 
the proposal. This interpretation will supersede the enforcement policy 
stated in the October 9, 1992 notice and other related interpretations.
    The Commission will focus its enforcement efforts on items that 
have traditionally been considered art materials, such as paints, inks, 
solvents, pastes, ceramic glazes, and crayons, and on other items 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--such as paper 
or hard plastic--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 limited resources 
more efficiently to pursue enforcement actions against those art 
materials that present the greatest risk of chronic health effects.
    The Commission will not enforce against the following types of 
products under LHAMA.
    (1) General use products. The Commission will not take enforcement 
action under LHAMA against general use products which might 
incidentally be used to create art, unless a particular 
[[Page 8190]] 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) Tools, implements, and furniture. The Commission will not take 
enforcement action under LHAMA 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. 
They are not like the more traditional art materials mentioned in LHAMA 
floor debates, and they are unlikely to pose a chronic hazard to the 
user.
    (3) Surface materials. The Commission will not take enforcement 
action under LHAMA 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) Specific Materials. The Commission will also not take 
enforcement action under LHAMA 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 whether such items 
are used as a surface or not, 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. The Commission 
believes that in most cases, the surfaces and specific materials listed 
do not present a chronic risk. These types of materials are unlikely to 
allow exposure. However, if it is likely that reasonably foreseeable 
handling or use of the material would expose the consumer to chemicals, 
the Commission will enforce all LHAMA requirements with respect to that 
product. This is a question of potential exposure, not the 
manufacturer's assessment of hazard. Thus, even if the chemical to 
which the consumer might be exposed is potentially non-hazardous, the 
Commission would enforce the LHAMA requirements, including review by a 
toxicologist. This is consistent with Congress's intention that a 
toxicologist, not the manufacturer, should assess the potential chronic 
hazard.
    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 the LHAMA 
requirements will therefore be enforced. 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, the LHAMA requirements will 
be enforced.

C. Craft and Hobby Kits and Supplies

1. Kits

a. Previous Interpretation
    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 raised the possibility of inconsistent 
enforcement results. For example, if the same 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.
b. Statement of Enforcement Policy
    After considering the above, as well as the purpose of LHAMA to 
alert consumers to the potential dangers associated with products used 
in the creation of art, the Commission published its proposed policy to 
clarify its enforcement of LHAMA concerning craft and hobby kits. The 
Commission is finalizing that aspect of the policy as proposed. 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. 
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 [[Page 8191]] 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, along with paints or 
adhesives to decorate or assemble the item, the Commission will expect 
the paints and adhesives in each case to meet all the LHAMA 
requirements. However, as explained in section B.2.(3) & (4) above 
pertaining to surfaces and specific materials, the Commission would not 
enforce the requirements against the plastic toy or the board.
    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, or must be visible through it, and must specify the item to 
which the statement or labeling refers. Any conformance statement must 
be visible at the point of sale. In addition to being 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.

2. Enforcement Policy for Separate Supplies

    As stated in the March 8, 1994 proposal, 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. Conformance Statement

    Section 1500.14(b)(8)(i)(C)(7) of the LHAMA rule requires that a 
conformance statement appear with an art material. In the preamble to 
the original LHAMA rule, the Commission stated that every art material 
must display either a conformance statement or a hazard warning, but 
not both. See 57 FR 46629, October 9, 1992.
    The Commission has reviewed this matter in light of one comment it 
received opposing the Commission's policy on this issue and its 
experience enforcing the LHAMA requirements. The Commission agrees with 
the commenter and is now modifying its policy concerning the 
conformance statement.
    The language of the standard that was mandated by LHAMA is not 
entirely clear on this question. 16 CFR 1500.14(b)(8)(i)(C). However, 
based on its experience enforcing LHAMA, the Commission agrees with the 
commenter that there is the potential for confusion if some products 
that have been reviewed according to the standard display a conformance 
statement but others do not. Thus, the Commission's policy is that a 
conformance statement must appear with all toxicologist-reviewed art 
materials subject to LHAMA regardless of whether they also have a 
hazard warning statement. A subsection has been added to the 
enforcement policy, Sec. 1500.14(b)(8)(iv)(C), stating this policy. 
Since the conformance statement constitutes ``other cautionary 
labeling'' as defined in 16 CFR 1500.121(a)(2)(viii), it must comply 
with the conspicuousness requirements of 16 CFR 1500.121 (c) and (d), 
including the type-size requirement laid out in Table 1 of 
1500.121(c)(2).

E. Response to Comments

1. General

    The Commission heard from six commenters on its proposed 
enforcement policy. For the most part, commenters supported the 
Commission's effort to clarify its enforcement intentions in this area. 
For example, one commenter stated that the proposed enforcement policy 
alleviates practical problems, follows common sense, is consistent with 
Congressional intent, and appropriately focuses on intended use. 
However, commenters did raise several specific criticisms of certain 
aspects of the proposed policy. These comments and the Commission's 
responses are discussed below.

2. Scope of ``Art Materials''

    One commenter suggested changing 16 CFR 1500.14(b)(8)(iv)(A)(1) to 
state that markers sold in art supply stores are art materials, rather 
than likely to be art materials.
    The Commission declines to make this change. For general use 
products, the Commission will look at a variety of factors, including 
packaging, marketing, and where the item is sold. Often a single factor 
will not be determinative. For example, along with other markers, an 
art supply store might sell high-lighters which are clearly promoted 
for use by students in marking textbooks. These are probably general 
use products, and the enforcement policy should be flexible enough to 
allow this determination.
    The Writing Instrument Manufacturer's Association (``WIMA''), a 
trade association for the writing instrument industry, commented that 
it generally supported the proposed enforcement policy but suggested 
that cased pencils (referred to as common wood pencils in the proposed 
policy) should generally be considered art materials. WIMA asserted 
that these pencils are generally considered in the industry to be art 
materials and are used for drawing and sketching. Another commenter 
argued that if the enforcement policy considers these general use 
pencils not to be art materials, products from China and other 
countries without consumer protection laws will flood the market.
    The Commission declines to make this change in the enforcement 
policy. The Commission believes that common pencils, much like pens or 
markers, are generally used as writing materials. Under the policy, 
specific pencils that are intended primarily for drawing or sketching 
(such as colored pencils) will be considered art materials for 
enforcement purposes. Of course, pencil makers who wish to submit their 
formulations to a toxicologist for evaluation and label them 
accordingly may do so. However, the Commission will not enforce the 
LHAMA requirements against common pencils unless they are specifically 
intended or marketed as art materials. Whether products are produced 
domestically or imported, they are all subject to the consumer 
protection laws and regulations of this country if they are sold here. 
With respect to the comment concerning imports from countries 
[[Page 8192]] without consumer protection laws, CPSC reminds the 
commenter that imports are subject to the same requirements as products 
made in this country.
    One commenter stated support for the proposed enforcement policy's 
treatment of brushes, kilns, and molds, finding it to be consistent 
with other CPSC policy interpretations. CPSC agrees.

3. Actual Toxicity Hazards

    One commenter argued that the proposed enforcement policy would 
allow products which present chronic toxicity hazards to consumers to 
evade the review required by LHAMA. The commenter stated that items 
``such as pencils, paper, fabric, paint brushes, and sand have all been 
found to present chronic toxicity hazards in the past * * *.''
    The Commission's scientific staff examined this comment, and does 
not agree. Neither the Commission nor the staff have concluded that any 
of the listed items typically present chronic toxicity hazards. The 
staff has in the past examined some uses of some of these materials 
outside of the context of art materials. For example, children's 
playsand was evaluated to see if the sand posed a hazard through 
tremolite asbestos or non-asbestos tremolite. No such hazard was 
established. Paper has been found to contain extremely small amounts of 
dioxin, but the amount is so small that the risk is negligible. Through 
its enforcement policy, the Commission is attempting to focus 
enforcement efforts on items that may actually harm consumers. The 
Commission believes this policy furthers that goal. It is worth noting 
that in the unlikely event that any of these items were found to be 
dangerous, the labeling and banning provisions of the Federal Hazardous 
Substances Act (15 U.S.C. 1261 (f), (p), and (q)(1), and 15 U.S.C. 
1263) still apply.
    Another commenter agreed with the Commission's focus on potential 
for genuine risk of exposure but suggested that the language of the 
proposed policy be changed in 16 CFR 1500.14(b)(8)(iv)(A) (3) and (4) 
to state that the user's exposure must be to a hazardous chemical 
before the Commission will enforce LHAMA against the materials listed 
in those subsections. In the sections referred to, the enforcement 
policy provides that the Commission will not enforce the LHAMA 
requirements against surface materials and certain specifically 
enumerated materials unless it is likely that handling or processing 
the material may expose the user to chemicals in or on the material.
    The Commission declines to make the commenter's suggested change. 
As explained in section B.2 above, although the Commission believes 
that generally there will not be a chronic hazard with use of these 
materials, the Commission is concerned that a situation could arise in 
which a unique manner of handling or using these materials could pose a 
risk of exposure. An example is paper stickers with adhesive that is 
licked. The commenter's suggestion would put the manufacturer in the 
position of deciding whether a particular chemical is hazardous. 
However, Congress intended that this determination be made by the 
toxicologist reviewing a product's formulation. The enforcement policy 
concerns the initial question of whether exposure is likely, not 
whether a chemical is hazardous. Thus, under the Commission's 
enforcement policy, if there is the potential for exposure to a 
chemical from a surface or specifically enumerated material, the LHAMA 
requirements will be enforced.

4. Enforcing LHAMA Against Non-Hazardous Products

    Comments suggested that all art materials should have to comply 
with LHAMA regardless of actual risk, and that the items listed in the 
proposed enforcement policy should not be excluded from enforcement 
efforts. They noted that the conformance statement on a non-hazardous 
product tells the consumer that the product has been cleared by a 
toxicologist. An unlabeled product, on the other hand, could either 
have been evaluated as non-toxic, or not evaluated at all. Thus the 
commenters argue that the Commission should enforce against all art 
materials, whether hazardous or not.
    In response, the Commission notes that focusing its enforcement 
efforts is important to ensure that the enforcement program is as 
effective as possible through the effective use of the Commission's 
limited resources. The Commission believes that the categories of 
products against which it will no longer enforce present virtually no 
risk of exposing consumers to chronic toxicity hazards. No evidence of 
consumer confusion was presented with the comments, and we think any 
such confusion should be minimal.

5. Conformance Statement and Warnings

    As explained above, one commenter argued that the conformance 
statement should accompany all art materials, including those that also 
require a hazard warning. The preamble to the original LHAMA rule 
stated that every art material must display either a conformance 
statement or a hazard warning, but not both. See 57 FR 46629, October 
9, 1992.
    The Commission has reviewed this issue in light of this comment and 
its experience. For reasons explained in greater detail above, the 
Commission agrees with the commenter and has added a subsection to the 
enforcement policy making this change.

6. Other Labeling Issues

    One commenter noted that some labels bear adequate safe handling 
instructions, but do not list the chronic hazards that necessitate 
these precautions. LHAMA and the ASTM standard clearly require that 
both the chronic hazard and the safety instructions be on the label.
    Another commenter noted that facially adequate labels should be 
examined for accuracy. The Commission considers this a very important 
issue. If labels are inaccurate, the labels and the standard itself 
become meaningless to the consumer. It is clearly unacceptable for 
labels to indicate that they have been reviewed by a toxicologist (by 
display of the conformance statement) if they in fact have not.

7. Kits and Supplies

    One commenter stated specific support for the proposed enforcement 
policy concerning kits and separate supplies.

8. Status of Enforcement Policy

    One commenter argued that the Commission is actually exempting 
certain products from the FHSA, and it is therefore improper to issue 
an enforcement policy rather than a regulation under section 3(c) of 
the FHSA (15 U.S.C. 1262(c)). The commenter argued that the enforcement 
policy would create confusion.
    The Commission disagrees with this comment. This policy does not 
exempt any items from the FHSA. First, the policy does not grant 
exemptions from the LHAMA provisions, but rather clarifies the 
Commission's interpretation of the statutory term ``art material'' and 
informs the public that the Commission's enforcement efforts under 
LHAMA will be directed against those products that present the greatest 
risk. Through this policy, the Commission is explaining what that means 
in practice. The policy explains how the Commission will interpret the 
statutory definition of ``art material'' for purposes of enforcement 
and that it does not intend to enforce LHAMA [[Page 8193]] requirements 
against certain items or materials which are unlikely to present a 
chronic hazard. The Commission believes that the policy, with its 
general guidance and specific examples, will help to clarify existing 
confusion. The enforcement policy will be published in the CFR with the 
LHAMA regulations so that all will be aware of Commission policy. In 
addition, the policy has no impact on the enforcement of other 
provisions of the FHSA, such as recall or notice actions under section 
15 of the FHSA, as to art materials.
    Focusing enforcement efforts to make them maximally effective is an 
appropriate use of an enforcement policy. The commenter stated that 
enforcement policies should clarify where an agency will take action, 
rather than where it will not. No authority was cited for this 
proposition, and the Commission is not aware of any such authority.
    However, the Commission is modifying the language of section 
1500.14(b)(8)(iv)(A)(1) slightly to clarify its interpretation with 
respect to that one category of products. The Commission does not 
consider the products described in that subsection (products intended 
for general use) to be art materials under the statutory definition. 
This is now stated explicitly in that subsection.

9. Effective Date

    One commenter requested that manufacturers have one year to comply 
with this enforcement policy, rather than six months. No data were 
submitted as to why compliance in six months would be unduly 
burdensome. The Commission believes that six months is adequate time to 
submit formulae to toxicologists and comply with relevant labeling 
requirements. The Commission will, however, apply the policy to those 
products initially introduced into interstate commerce after six 
months, rather than those manufactured or imported after that date.

10. Prohibition of Lead in Children's Products

    One commenter suggested that the Commission should prohibit the use 
of lead in products intended or marketed for the use of children. This 
comment is beyond the scope of this enforcement policy. However, we 
remind the commenter that the hazard of lead in consumer products 
intended for children is dealt with by regulations under the CPSA, 16 
CFR 1303.4, and provisions of the FHSA, 15 U.S.C. 1261 (f)(1)(A) & 
(q)(1)(A).

F. Environmental Considerations

    The Commission has considered whether issuance of this 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 enforcement 
policy would have no adverse impact on the environment.

G. 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 enforcement statement 
will have little effect on businesses in general or on small businesses 
in particular. Accordingly, the Commission 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.

H. 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.

I. Applicability Date

    Since this notice issues an interpretative rule/statement of 
policy, no particular applicability 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. Thus, this policy 
regarding such items applies to products introduced into interstate 
commerce on or after 6 months from the date this policy is published 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 policy becomes applicable for such products introduced 
into interstate commerce on or after the date of publication of this 
notice.

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 amends 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 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 under 
the Labeling of Hazardous Art Materials Act (``LHAMA'') 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). The products described in this paragraph 
do not meet the statutory definition of ``art material.''
[[Page 8194]]

    (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 upon 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 surface material in a 
manner which 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 LHAMA enforcement policy, the Commission will 
enforce against materials including, 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, and hobby items. Adhesives, glues, and putties intended for 
general repair or construction uses 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 and craft and model construction uses. This paragraph 
(b)(8)(iv)(B) applies to products introduced into interstate commerce 
on or after August 14, 1995.
    (C) Commission regulations at Sec. 1500.14(b)(8)(i)(C)(7) require 
that a statement of conformance appear with art materials that have 
been reviewed in accordance with the Commission standard. The 
Commission interprets this provision to require a conformance statement 
regardless of the presence of any chronic hazard warnings.
    (D) Nothing in this enforcement statement should be deemed to alter 
any of the requirements of the Federal Hazardous Substances Act 
(``FHSA''), such as, but not limited to, the requirement 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 
FHSA.

    Dated: February 6, 1995.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 95-3450 Filed 2-10-95; 8:45 am]
BILLING CODE 6355-01-P