CPSIA & Pens: When Marketing Matters

ballpoint pen tip

When is a pen just a pen, and when is that pen a children’s product?

Seems like a silly question, unless you are trying to figure out the Consumer Product Safety Improvement Act (CPSIA) and whether your company’s pen is not just a pen, but instead a children’s product. Why does it matter? Because if the pen is not just a pen, but is instead a children’s product, it is subject to the CPSIA’s lead content limits.

And the distinction may turn on your marketing.

In brief, the CPSIA sets lead content limits for children’s products – products intended or designed primarily for children under the age of 12. The lead content limits are retroactive – meaning when they become effective, all product must meet them, regradless of when the products were manufactured. The first lead content limit of 600 parts per million (ppm) was effective February 10, 2009. That limit drops to 300 ppm on August 14, 2009.

So what the heck does this have to do with pens?

As explained in the Writing Instrument Manufacturers Association’s letter to the Consumer Product Safety Commission requesting an exemption from the CPSIA’s lead content limits, ball point and roller point pens have lead in the tip, up to 5% (or 5,000 ppm). Specifically, brass tips contain 2.5% to 5% lead, and stainless steel or nickel tips contain 0.10% to 2 % lead. No ready substitute exists, so WIMA requested an exemption.

WIMA’s request was denied by the CPSC. However, the CPSC’s General Counsel wrote a response to WIMA’s request, laying out some relief for the pen manufacturers. Basically, the CPSC’s General Counsel explained that just because a pen may be used by a child doesn’t make it a children’s product. The letter states “to the extent that these pens are general purpose items not being marketed to, or advertised as being intended for children under the age of 12 years or younger, these pens would not be subject to the lead limits under CPSIA.”

The General Counsel’s letter explains that pens with bright colors, pens with school names, and even pens with popular cartoon characters can just be general purpose pens, and not children’s products. The letter further clarifies that even an “ordinary ball point pen” marketed for back to school isn’t by default a children’s product.

Nonetheless, the letter does state that pens that are children’s products must meet the lead content limits. And that may be dependent on how pen product is marketed. If a colored novelty pen with a character clearly intended young children (Barney? Little Einsteins?) is packaged and marketed to children, then you may well turn your pen into a children’s product.

And that you don’t want to do.

Poking through the back to school offerings at Target, it seemed that most manufacturers had taken heed. Most pens were packaged and marketed such that they really did just look like general purpose pens stuck in the back to school section.

But then some were packaged just for kids. Clearly and unequivocally. I saw a package of school supplies labeled specifically for those going to kindergarten, including 2 ball point pens. I would guess that the marketing folks didn’t even think about the CPSIA when they devised the packaging. I wouldn’t want to be explaining that one if the company gets reported.