Overview

An “art material” or “art material product” means 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 and packaged in sized intended for individual users of any age or those participating in small groups.

Federal law requires that all art material offered for sale to consumers of all ages in the United States undergo a toxicological review of the complete formulation of each product to determine the product’s potential for producing adverse chronic health effects and that the art materials be properly labeled for acute chronic hazards, as required by the Labeling of Hazardous Art Materials (LHAMA) and the Federal Hazardous Substance Act (FHSA), respectively.

Chronic Hazard Review Performed by a Toxicologist

All formulations of art materials that are offered to consumers of all ages in the United States must be evaluated by a toxicologist for their potential to cause chronic health effects, prior to such products being offered for sale.  After the chronic hazard review has been performed by a toxicologist, the toxicologist will then recommend the appropriate statement that the product conforms to ASTM D-4236.  The statement can read:

“Conforms to ASTM Practice D-4236”

“Conforms to ASTM D-4236”, or

“Conforms to the health requirements of ASTM D-4236”

The statement can be placed on the product, on an outer container (for a kit), or an invoice for the product, or on a retail display, as long as the consumer is informed that the product’s formulation has been reviewed.

Acute and Chronic Hazard Labeling by a Manufacturer

In addition, the FHSA requires that a manufacturer affix cautionary labeling to household substances, including art materials, for certain acute and chronic hazards in those substances, meet the definition of “hazardous substance” under the FHSA.

Note that while a toxicologist is required to perform the chronic hazard review, a toxicologist is not required to conduct the acute hazard review for the art material.  Nevertheless, a manufacturer bears the responsibility to ensure that the product is properly labeled for both (i) acute and (ii) chronic hazards.  A manufacturer may – but is not required to – enlist the assistance of a toxicologist or any qualified person with appropriate expertise to assist them.  In many cases, a reviewing toxicologist should be able to provide a review for both chronic and acute hazards, if the manufacturer does not have the expertise, and to recommend appropriate labeling.

In addition, if an art material product is found to present an acute or chronic hazard, the product would require cautionary labeling.  The labeling would be based on the hazard identified.

Art Material for Children Under 12 Years of Age & the CPSIA

Banned Hazardous Substances

Children’s art materials that contain substances that meet the definite of “hazardous substance” under the FHSA may be banned hazardous substances if the hazardous substance is accessible by children and the child is not old enough to read and head instructions.  However, there are certain exemptions described in the CPSC’s Art and Craft Safety Guide.  These exemptions are summarized below:

Limits on lead in paint and other substances; limits on lead content in addition to the LHAMA requirements discussed above, art materials – such as paintbrushes and stencils – that are designed or intended primarily for children 12 years of age or younger, are also required, like all children’s products, to comply with the requirements of the Consumer Product Safety Improvement Act of 2008 (CPSIA). These requirements include complying with the 90 parts per million on lead in surface coatings or paint and the 100 parts per million limit on total lead content in a product’s substrate.

Testing and Certification

The CPSIA also requires that manufacturers (this term includes importers) of children’s art materials must test and certify compliance of such products before importing the products or distributing them in commerce.  Manufacturers must submit samples of their product to a third-party laboratory whose accreditation has been accepted by the CPSC to test for compliance with all applicable children’s product safety rules.  Based on the testing, the manufacturer must issue a Children’s Product Certificate, specifying each applicable rule, and indicating that the product complies with these rules.  No third-party testing or certification is required for LHAMA or the FHSA.

For example, for an art kit intended for children 12 years of age or younger that contains paint and a paintbrush, the paint would need to be labeled properly and have its formulation reviewed by a toxicologist, as discussed above.  In addition, the paint and the brush would need to be tested by a CPSC-accepted laboratory for compliance with, respectively, the lead paint limit of 90 parts per million and the lead content limit of 100 parts per million.  Then, the manufacturer would need to issue a Children’s Product Certificate that lists all applicable safety rules and certifies that the paintbrush and paint comply with those rules based on the testing results.

Tracking Labels

Children’s art materials must have a tracking label or other distinguishing permanent mark on the product and its packaging, to the extent practicable, and must contain certain basic information, including (1) the name of the manufacturer or private labeler, (2) the location and date of manufacture, and (3) cohort information, such as batch or run number.