CPSC Drops Artificial Turf Playground Safety Review

Unannounced Decision on Childhood Product Status at Odds with Public Statements

Washington, DC — The Consumer Product Safety Commission has decided not to enforce toxic lead limits required by law for children’s products in artificial turf playgrounds, according to documents posted today by Public Employees for Environmental Responsibility (PEER). The CPSC has been unable to supply a cogent explanation for this action, even in the face of litigation demanding relevant records.

In 2008, Congress mandated safeguards for children’s products by imposing a lead content limit of 100 parts per million and third-party testing to ensure compliance. Playgrounds made with shredded tires, however, generally exceed this lead limit, including in lead testing done by the CPSC.

After PEER presented CPSC with numerous examples of shredded tire play surfaces marketed specially to children, under product names such as TotTurf, KidWise and PlaySafer, on September 27, 2013 the CPSC informed PEER that it had tasked its Office of Compliance and Field Operations with a “review and determination of whether any enforcement action is appropriate.” Over a year passed without word of the results of this playground review. When its emailed requests went unanswered, PEER submitted a formal request under the Freedom of Information Act. After the agency failed to answer the FOIA request, PEER sued the agency for an answer in February 2015.

Members of Congress also began to inquire. On July 20, 2015, CPSC sent a letter to U.S. Senator Elizabeth Warren (D-MA) which contained the following statement:

“Upon further exploration, Compliance staff concluded, at that time, specific product enforcement was unlikely to be the best option, based upon the need for individual health assessments, among other factors. To my knowledge, this information has also been communicated to PEER.”

This statement is curious in several respects, beyond that this decision was never shared with PEER:

The children’s product enforcement route does not require a health assessment. It only requires a test for lead content – a test which is supposed to be done by the manufacturer;
In response to the PEER FOIA suit and a subsequent FOIA about the basis for the letter to Senator Warren, the CPSC has not been able to locate any paper trail documenting this decision. A request for clarification received no written answer. Another email suggests the decision was never reduced to writing; and
If enforcement was not “the best option,” CPSC cannot identify what other options it examined.

“The Consumer Product Safety Commission has abandoned its legal duty to protect children on playgrounds from chemical exposure,” stated PEER Executive Director Jeff Ruch, contrasting the agency’s cowardice in confronting the issue with a recently posted press statement from CPSC
Chair Elliot Kaye extolling his concern about children on crumb rubber play surfaces. “Nor can we get a straight answer from the Commission about why it punted on playground lead limits and kept silent.”

As with EPA, CPSC has dropped its “Safe to Play On” endorsement of artificial turf. In congressional testimony, Chair Kaye also stated that its previous endorsement did not “reflect the technical staff’s view” and was the product of an unspecified “political effort.” Yet, the technical views of Commission staff have never been publicly communicated and were not included in records CPSC has produced for PEER.

“The records do include that in response to industry pressure, that the Commission has assumed a fetal position on playground toxicity,” Ruch added. “Even today, Commission staff refers congressional and other inquiries to the turf industry as the best source of information, including on issues of toxicity.”

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See CPSC pledge to conduct enforcement review on turf playgrounds

Look at February 2015 PEER FOIA suit to learn review’s outcome

Read July 2015 CPSC letter to Sen. Elizabeth Warren

View staff questions about Commission position

See email suggesting decision was never reduced to writing

Compare CPSC Chair statement on his concern for safety of children

Watch Mr. Kaye’s May 19, 2015 congressional testimony

Examine CPSC referral to industry as “best source of information