Art Materials Frequently Asked Questions

November 19, 2012

 

What types of products are considered art materials?

 

Examples of art materials include, but are not limited to: ceramics and clay, chalk, stencils, colored pencils, crayons, glue, including white craft glue, jewelry-making kits, markers, paints, painting kits, polymer clay packs, certain stickers (described below), and watercolor discs.

 

What art materials will CPSC staff generally refrain from enforcing the LHAMA requirements?

 

In addition to the art materials described above, there are - other types of products, such as paint brushes and various tools, - for which the CPSC has a specific enforcement policy regarding the LHAMA requirements. For purposes of enforcement, the Commission will not consider the following types of products that fail to meet the requirements of 16 CFR § 1500.14(b)(8)(i) through (iii) to constitute sufficient grounds for bringing an enforcement action under LHAMA:

     

  • 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 include how an item is packaged (e.g., unless promoted for non-art material usage, packages of multiple colored pencils, chalks, or markers are likely to be viewed as art materials and subject to enforcement action); 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).
  •  

  • 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.
  •  

  • 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.
  •  

  • 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.

 

See 16 C.F.R. § 1500.14(b)(8)(iv).

 

Please note that art materials designed or intended primarily for children 12 years of age or younger must still comply with, and be third party tested and certified to, the CPSIA requirements discussed above.

 

Who is responsible for ensuring that art materials are subjected to the chronic hazard review, as required by LHAMA?

 

Under the LHAMA requirements at 16 C.F.R. § 1500.14(b)(8)(i)(C)(1), the producer or repackager of art materials must submit art materials product formulation(s) or reformulation(s) to a toxicologist to have the product assessed for the potential to cause adverse chronic health effects before the products are entered into commerce.

 

The regulation also requires the manufacturer or repackager to submit to the CPSC, the criteria that the toxicologist uses to complete the assessment of the product, along with a list of art materials contained in the product that require chronic hazard warning labels under LHAMA. The submission requirement is at 16 C.F.R. § 1500.14(b)(8)(ii)(C). Submissions can be made to Sect15@cpsc.gov

 

Who may perform the chronic hazard review?

 

The regulation defines a “toxicologist” as an individual who, through education, training, and experience, has expertise in the field of toxicology as it relates to human exposure, and is either a toxicologist or physician certified by a nationally recognized certification board.

 

While Congress intended the toxicological review to be performed by a Board Certified Toxicologist, the Commission, in enforcing the LHAMA requirements is primarily concerned that the person reviewing formulations has sufficient knowledge, based on a combination of education, training, and experience and that the reviewer uses appropriate criteria to recommend complete and accurate labeling.

 

This list of toxicologists performing art material reviews under the LHAMA is for convenience only, and the CPSC does not endorse or certify any of the toxicologists listed. Any toxicologist with appropriate expertise may conduct this review.

 

Is there a specific set of criteria to qualify an art material as non-toxic?

 

The FHSA and the LHAMA amendment do not address “non-hazards”; therefore, the term “non-toxic” is not defined by the regulation. The staff, in its interpretation of the regulation, has not prohibited the use of the word non-toxic on substances that are not required to bear any cautionary labeling for hazards under the FHSA or LHAMA. The toxicologist who performs the chronic hazard review could provide data indicating that a substance does not pose a hazard. In that circumstance, the decision to characterize a product as non-toxic rests with the manufacturer.

 

Are art materials subject to the CPSC’s phthalates requirements or labeling regulations for the banned phthalates under LHAMA or FHSA?

 

Not at this time. CPSC staff does not consider art materials to be subject to the requirements for phthalates under section 108 of the CPSIA. CPSC staff is using the definition of toys set forth in ASTM F 963 to determine which products are subject to Section 108. If an art material is packaged with a toy, however, the toy must still comply with certain requirements, including the toy safety standard and thephthalates requirements. Please continue to monitor the CPSC’s Web page on phthalates for the most current guidance regarding products subject to the phthalates requirements.

 

A Chronic Hazard Advisory Panel (CHAP) is currently studying phthalates, and currently, labeling is not required for any of the banned phthalates under LHAMA or FHSA.

 

What is the required frequency that art materials must undergo LHAMA chronic hazard review for toxicity?

 

The regulation at 16 C.F.R. § 1500.14(b)(8)(i)(C)(6) states: “[T]he producer or repackager shall have a toxicologist review as necessary, but at least every 5 years, art material product formulation(s) and associated label(s) based upon the then-current, generally accepted, well-established scientific knowledge.”

 

In addition, the regulation at 16 C.F.R § 1500.14(b)(8)(ii)(E) states: “[I]f an art material producer or repackager becomes newly aware of any significant information regarding the hazards of an art material or ways to protect against the hazard, this new information must be incorporated into the labels of such art materials that are manufactured after 12 months from the date of discovery. If a producer or repackager reformulates an art material, the new formulation must be evaluated and labeled in accordance with the standard set forth at § 1500.14(b)(8)(i).”

 

A change in supplier of a component of a product is considered a change in the product formulation and does require reevaluation of the product formulation by a toxicologist..

 

What is the required frequency that art materials designed or intended primarily for children 12 years of age or younger must undergo CPSIA testing for lead in paint, lead content, and other requirements?

 

Please see our additional FAQ on required third party testing frequency.

 

Does each size package need to be evaluated?

 

Evaluation of all available package sizes of a product with the exact same formula would not be required under the LHAMA, unless package size would affect exposure. Under 16 C.F.R. § 1500.14(b)(8)(i)(D)(2)(iii), specific physical and chemical forms of the art materials product, bioavailability, concentration, and the amount of each potentially chronic toxic component in the formulation shall be considered in the determination of labeling. Therefore, we suggest that you have the largest size package evaluated, and label the other sizes accordingly.

 

Must the producer or repackager disseminate poison exposure management information to poison control centers or provide a 24-hour cost-free telephone number to poison control centers for every art material product?

 

A 24-hour emergency management or 800 number is required only for those products requiring chronic hazard labeling. (15 U.S.C. § 1277(b)(5)).

 

How does CPSC staff enforce these requirements with regard to stickers?

 

Staff will generally refrain from enforcement, unless there is reason to believe that the nature of a particular sticker and its intended use present a genuine risk of exposure to a potential chemical hazard either by ingestion or absorption. Staff believes that self-adhesive stickers present little risk or potential to cause adverse chronic health effects, unless there is something very unusual about the sticker. 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 followed. If the stickers are intended to be applied to the body, then the stickers would be considered body art and would be under the jurisdiction of the FDA.

 

We understand that LHAMA does not require surface materials, like canvas, to be reviewed. However, do primed canvases – i.e., textiles or cloth that is coated with a formulated chemical and is oven dried at more than 100°C to make them suitable for drawing or applying art materials─require LHAMA review?

 

For purposes of enforcement policy, the Commission will not consider as sufficient grounds for bringing an enforcement action under LHAMA the failure of the following types of products to meet the requirements of § 1500.14(b)(8) (i) through (iii):

 

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. 16 C.F.R. §1500.14(b)(8)(iv).

 

Where can I find additional information?

 

For more information on the requirements for art materials, contact the U.S. Consumer Product Safety Commission:

 

Office of Education, Global Outreach, & Small Business Ombudsman (Assistance in Understanding and Complying with CPSC Regulations): e-mail:Business@cpsc.gov; telephone (301) 504-7999.

Office of Compliance (Enforcement Inquires): e-mail: sect15@cpsc.gov; telephone: (301) 504-7529