Mar. 9, 2009 – Lead law fight being waged on two fronts

By Karin Gelschus
Associate Editor
Industry officials remain hopeful that relief will come in the next few weeks that would ease or erase the current ban on selling youth ATVs and motorcycles that have parts containing an illegal amount of lead.
But as of Feb. 10, it’s illegal to sell such products that are targeted primarily for children 12 and under and contain more than 600 parts per million of lead. Although it could take months or years, if ever, for Congress to pass an exemption to the ban, industry groups continue to work on the issue.
As it stands now, the lead law, on a case-by-case basis, provides for exclusion and leaves the determination up to the Consumer Product Safety Commission (CPSC), says Paul Vitrano, general councel for the Motorcycle Industry Council (MIC) and Specialty Vehicles Institute of America (SVIA).
“There has been some communications from CPSC where they suggest that the standard is so high in the law that they may not have flexibility to grant exclusions, so we’re not sure how this will all play out,” he said. “Both the CPSC and Congress need to be involved to provide relief to the powersports industry.”
There are a couple ways the industry could get an exclusion. One way is for individual members of Congress to contact the CPSC and say they support the powersports industry’s request. Another way would be if the CPSC decides the law is too strict when it comes to exclusions, there could be an opportunity for Congress to make it clear that products, like ATVs and motorcycles, should be excluded.
“That’s all in a state of flux at this point because the CPSC has not acted yet,” noted Vitrano. “The main point is the industry and the enthusiasts need to continue to contact the CPSC and members of Congress to urge them to grant relief to the powersports industry whatever form that may take.”
The broadness of the law has some dealers wondering what products need to be tested. Vitrano says they should be looking for guidance from the manufacturer to find out what age each product is targeted for.
“If the product is primarily intended for kids 12 and under, it’s covered,” he explained. “If it’s a product that may be used by 12 and under but is primarily intended for another age group, then they would be outside the law,” and thus safe for sale.
One manufacturer that isn’t waiting for a possible exemption is Smooth Industries. About 70 percent of the company’s products are affected by the law, says Mike Koger, owner of the aftermarket company that designs and manufactures powersports accessories.
“It’s costing a lot of people a lot of money, time and effort,” he said of the new law. “It’s just an unfortunate situation given the state of the economy right now.”
Getting the products tested is just one byproduct of the new law that is costing companies. Some companies, however, are waiting to test their products in hopes that an exemption will be passed.
“If this drags on another month or so,” Vitrano added, “people need to start making plans as far as testing to confirm lead content or lack there of or make alternative plans.”
An issue identified early on is the potential difficulty in getting access to labs that conduct lead testing. Vitrano says one of the first actions taken by the CPSC was to set standards to certify labs.
“There are screening tests available for some products that are less time consuming, but then again that’s only a screen, not a complete test,” Vitrano added. “It would be prudent to go through the whole testing because the screen is just that. Unless you know for certain that your product does not contain lead, you should have it tested to be sure because the consequences of selling a prohibited product are pretty severe.”
Smooth Industries is already getting its products tested, and Koger says some testing facilities are already backed up.
“There’s only I think a handful, five or six at the most I believe, approved and recognized testing facilities in the U.S. So if you think about it, there are hundreds or probably thousands of companies that this affects,” he said. “Everyone is having to test any products that are under these regulations right now, so it’s causing this huge traffic jam at these testing facilities.”
It took about two weeks for some of Smooth Industry’s products to begin testing.

Heard around the country
The MIC and SVIA oppose the ban for a number of reasons, but Vitrano said, “The main message is that applying these new lead content limits to our products is doing nothing to advance safety of the kids. But it is making these products unavailable.
“We’re very concerned about the unintended consequence about the unavailability of these youth products. The CPSC, the safety groups all agree that the key to ATV safety is keeping kids off adult-sized ATVs. I think we’ve been able to demonstrate that the lead in these products propose no risk to these kids and so in light of that, by creating or perhaps exacerbating a real risk that is a step backward.”
The potential risks brought about by this law prompted the MIC and SVIA to draw considerable attention to the issue. The organizations generated thousands of letters against the ban by staging a letter-writing campaign at the recently held Dealer Expo in Indianapolis.
There have been more than 100,000 letters sent to the U.S. Congress from dealers and other concerned individuals, according to industry reports.
Although the public comment period ended Feb. 17, Vitrano said, “We continue to urge dealers and enthusiasts to contact their congressional representatives to seek their support for our exclusion requests, and we continue to reach out to Congress directly to try and get that support.
“I would expect the CPSC will continue to review our requests and take some action on them in the next couple weeks.”