CPSC Extends Stay of Enforcement For Certain CPSIA Testing and Certification Requirements, Lets Other Provisions Go Into Effect as Planned

President George W. Bush signed the Consumer Product Safety Improvement Act of 2008 (CPSIA) into law (Public Law 110-314) on Aug. 14, 2008. Among the most challenging provisions of the CPSIA were those dealing with lead limits, testing and certificates of conformity – most notably those pertaining to children’s products.

Fortunately for the trade, in February 2009, the Consumer Product Safety Commission (CPSC) announced a one-year stay of enforcement for certain testing (including third-party testing) and certification requirements until February 10, 2010. Although there were some exemptions from the stay of enforcement, it did provide industry with additional time to develop and implement the necessary controls.

Recently, the CPSC announced that while the stay of enforcement would be extended further in some instances, other provisions would become effective as planned. This Alert will provide an update with respect to upcoming changes.

Background

The CPSIA was designed to establish consumer product safety standards and other safety requirements primarily for children’s products and to reauthorize and modernize the CPSC. The law also expands the commission’s role in ensuring the safety of consumer products and sets higher federal standards.

The CPSC has jurisdiction over approximately 15,000 types of consumer products used in homes, schools and recreation. In carrying out its mission, the CPSC administers six statutes passed by Congress, including the Consumer Product Safety Act (CPSA), the Federal Hazardous Substance Act (FHSA), the Flammable Fabrics Act (FFA), the Poison Prevention Packaging Act (PPPA), the Pool and Spa Safety Act (under CPSA), and the Refrigerator Safety Act (RSA).

The February 2009 stay of enforcement covered much of the CPSIA-required testing and certification, including that related to lead content and phthalates, until February 10, 2010. CPSC did not stay underlying compliance, however, and did not stay all testing and certification.1

Summary of Upcoming Changes

Children’s Products

The recently announced extended stay of enforcement covering children’s products includes: children’s toys and child care articles with banned phthalates, children’s toys subject to ASTM F-963 toy safety standards, cap and toy guns, clacker balls, baby walkers, bath seats, other durable infant products, electronically operated toys, youth ATVs, youth mattresses, children’s bicycles, carpets and rugs, vinyl plastic film and children’s sleepwear.

This stay will remain in effect for the above product categories while CPSC works to recognize accredited labs for third-party testing. Certification and testing will be required for these categories of children’s products 90 days after CPSC publishes accreditation requirements in the Federal Register for the product category.

The CPSC also voted to extend the stay on certification and third-party testing for children’s products subject to lead content limits until February 10, 2011.2 The current stay will expire on February 10, 2010, however, for children’s bicycle helmets, bunk beds, infant rattles and dive sticks.

In addition, the status of current independent third-party testing and certification required for all children’s products subject to the ban on lead paint and other surface coatings, the standards for cribs and pacifiers, the limits on lead content of metal components of children’s jewelry and the ban on small parts remains in effect.

Non-Children’s Products

Under the CPSIA, different rules apply to non-children’s products. Domestic manufacturers and importers are not required to test non-children’s products using an independent third-party lab. They must certify that the products comply with applicable CPSC regulations, however, by issuing a general certificate of conformity (GCC) based on a reasonable testing program. Until now, there was a stay of enforcement on the GCC requirement for many non-children’s products.

A GCC, based on testing or a reasonable testing program, will now be required for some non-children’s products manufactured after February 10, 2010. These products include: architectural glazing materials, ATVs, adult bunk beds, candles with metal wicks, CB antennas, contact adhesives, cigarette lighters, multi-purpose lighters, matchbooks, garage door openers, portable gas containers, lawn mowers, mattresses, unstable refuse bins, refrigerator door latches, swimming pool slides, products subject to regulations under the PPPA, paint and household furniture subject to lead paint regulations.

The stay of enforcement will remain in place until 90 days after the CPSC issues notice of accreditation of laboratories for testing, for certain categories of non-children’s products including adult bicycles3, carpets and rugs, vinyl plastic film and wearing apparel. GCCs are currently required for pool drain covers.

Additionally, products that require labeling under the FHSA or labeling rules will not require additional certification to demonstrate those requirements are being certified. A complete chart of the updated requirements can be found on the CPSC website at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10083.html.

Component Testing Flexibility

A significant change for domestic manufacturers, as well as U.S. importers, comes with the CPSC’s decision to adopt an interim enforcement policy allowing component testing. Under this policy, domestic manufacturers and importers now have a choice of method for certifying their products. Domestic manufacturers and U.S. importers can still send samples of the entire children’s product out for independent third-party testing or they can now certify their products as meeting the lead paint and lead content limits in a number of other ways.

  • For lead paint, by obtaining test reports from recognized independent third-party labs showing that each paint on the product complies with the 90 ppm lead paint limit – or – by obtaining certificates from paint suppliers declaring that all their paint on the product complies with the 90 ppm lead limit based on testing by a recognized third-party testing lab.
  • For lead content, by obtaining test reports from recognized independent thirdparty labs showing that each of the accessible component parts on the product complies with the 300 ppm lead limit – or – by obtaining certificates from parts suppliers declaring that all accessible component parts on the product comply with the 300 ppm lead limit based on testing by a recognized third-party testing lab.

Mandatory Recall Notices

On January 21, 2010, CPSC issued a Final Rule regarding guidelines and requirements for mandatory recall notices as required by section 214 of the CPSIA. The rule contains the CPSC’s interpretation of information that must appear on mandatory recall notices ordered by the CPSC or a United States District Court pursuant to certain sections of the CPSA. The rule also contains CPSC guidelines for additional information that the CPSC or a court may order to be included on a mandatory recall notice. The rule is effective on February 22, 2010.

The information required by the rule includes: product description, action being taken, number of units, identification of the substantial product hazard and reason for the ac-tion, identification of manufacturers and significant retailers, dates when product was manufactured and sold, number and description of any injuries or deaths, the ages of anyone injured or killed, remedy available to consumers and other information the CPSC deems appropriate. The CPSC could determine some of the information is unnecessary or inappropriate for a particular recall.

Specific guidelines and requirements for mandatory recall notices have been added as a new Subpart C to 16 CFR Part 1115 and include, but are not limited to, use of simple language, clearly stating product hazards and potential for injury or death, direct recalls from each consumer for whom a firm has direct contact information, interactive website recall notices on the website’s first entry point (e.g., home page), and use of at least two notice types (e.g., letter, electronic mail, RSS feed, press release, etc.). The rule does not contain requirements for any voluntary recall notices. If CPSC decides to extend the requirements to voluntary recalls, it will initiate separate rulemaking.

Miscellaneous Updates

In addition to the larger issues set forth above, the following is a snapshot of other news from CPSC that would be of interest to the trade:

  • Product registration card requirements will become effective on June 28, 2010, for 12 durable infant and toddler products. Six additional products will be added on December 29, 2010. Imported products without registration cards could be refused admission. CPSC will be posting FAQs on its website soon.
  • As a result of the recent GAO report, CPSC has indicated it will focus efforts on certification provisions and the “generic defects rule.” Section 223(a) of CPSIA covers generic defects and allows the CPSC, by rule, to define the presence or absence of certain characteristics as a defect for a class of products. Readily observable characteristics that fall under this provision will allow for a request for seizure on-the-spot.
  • Construction has just begun on a new CPSC laboratory in Rockville, Md. Expected completion date is August 2010.
  • A new public database is under construction to include all reportable incidents. The system will allow for data mining, will be searchable, and offer other features as well. Expected completion date is March 2011.
  • The Commercial Targeting Analysis Center (CTAC), operated by CBP, has only been staffed part-time to date with CPSC personnel. Permanent staff is expected to be in place by early March 2010.

With the number of changes taking place this year with CPSIA requirements, and the multiple deadline dates to which product compliance, testing and certification requirements apply, importers should review the recent updates as they apply to their products and verify that internal controls and procedures are in place to ensure compliance.