Amendments to the Consumer Product Safety Act ("CPSA") which became law in mid-August are changing the way many American product manufacturers and importers do business. Consumer Product Safety Improvement Act of 2008 (the “Act”), PL 110-314, 2008 HR 4040 (August 14, 2008) (Westlaw). Specifically, amendments now in effect have created new testing and compliance certification requirements for certain manufacturers and importers of consumer products. On Tuesday, November 18, 2008, the CPSC published a new final immediate rule that fleshes out these requirements.
The CPSA amendments were passed quickly during the summer and became effective earlier this month. As a result, the product certification system remains under construction. However, this bulletin answers some of the key questions that consumer product manufacturers and importers need to know now:
- What products require certificates?
- What products do not?
- Who must certify a product?
- What do certificates need to contain?
- What product testing is required?
- What does the manufacturer do with a certificate once it is issued?
- What should a manufacturer or importer do now?
1. What Products Require Certificates?
Certificates must be issued for every product manufactured after November 12, 2008 and distributed in commerce in the United States that is "subject to a consumer product safety rule" under Consumer Product Safety Act or under another standard or regulation enforced by the Commission. Products "subject to" a CPSC consumer product safety standard are those for which the CPSC has adopted a formal safety rule or ban. 73 FR 68328. These products are generally listed on the CPSC's website under product safety standard at http://www.cpsc.gov/.
The other standards or regulations enforced by the CPSC currently include the Federal Hazardous Substances Act, the Flammable Fabrics Act, the Poison Prevention Packaging Act, the Refrigerator Safety Act, the Children's Gasoline Burn Prevention Act, and the Virginia Graeme Baker Pool and Spa Safety Act. Unless a manufacturer's products fall into one of these categories, the Act does not require certification. The Commission has said that, given the scope of the certification requirement and its dearth of staff, it will focus on certification compliance with its own safety standards first. 73 FR 68329.
2. What Products Do Not Require Certificates?
Some products distributed in the United States are not subject to the Consumer Product Safety Act and, therefore, are not subject to the new certification requirements. These exempt products include tobacco products; pesticides (including antimicrobial agents) as defined by FIFRA (7 U.S.A. § 136); firearms, shells and cartridges; aircraft and certain of aircraft parts; drugs, devices or cosmetics governed by the Food, Drug & Cosmetic Act; or food. 15 U.S.C. § 2052. Moreover, products imported for testing, for trade shows or for re-export need not be certified, as they are not "distributed in commerce" in the United States.
3. Who Must Certify A Product?
The manufacturer of a domestically-manufactured product or the importer of a foreign-manufactured product is responsible for the testing and certification process.
4. What Does The Certificate Need to Contain?
The purpose of the certificate is to attest that the product conforms to all applicable product safety standards. To meet that purpose, the CPSC requires that product certificates provide:
a. Identification of the product covered by the certificate. The Commission has not indicated the specificity with which a product must be "identified." However, because a certificate must be traceable to a specific product or shipment, presumably this includes the identification of product type (bicycle), brand name and model number, if not more.
b. Citation to each CPSC product safety regulation to which the product is being certified.
c. Identification of the importer or domestic manufacturer, including full name, mailing address and telephone number. The foreign manufacturer need not be identified, according to Commission FAQs.
d. Contact information for the person maintaining records of test results supporting the certification.
e. Date (month and year at a minimum) and place (city and country or administrative region) where the product was manufactured.
f. Date and place where the product was tested for compliance with the regulations cited in paragraph (b) above.
g. Identification of any third-party laboratory on which testing the certification depends.
Further detail about each category of information is provided at http://www.cpsc.gov/ABOUT/Cpsia/faq/elecertfaq.pdf. Certificates must be in English, but need not be signed.
5. What Product Testing Is Required?
Product certifications must be based on a test of each product or upon a "reasonable testing program." What constitutes a "reasonable testing program" is left up to the manufacturer or importer, unless a specific testing regulation or protocol for the product already exists. Importers of foreign-manufactured products may certify products based on tests by the foreign manufacturers, but the importer must be willing and able to stand behind the reasonableness and accuracy of that foreign testing process, as they are the ones actually certifying the products.
Self-certification is permitted and third party testing is not required unless the product is defined as a "children's product" under the Act. Generally speaking, a children's product is one designed for, intended for or appealing primarily to children under 12 years old. http://www.cpsc.gov/ABOUT/Cpsia/faq/children.html. Children's products subject to a product safety rule must be tested by independent third party laboratories accredited by the Commission. Because an accreditation process is just being initiated, "third party testing requirements become effective on a rolling schedule as the Commission issues specific laboratory accreditation requirements." An elaborate schedule of deadlines for certification of a range of children's products is set out in Frequently Asked Questions on the Commission's website at http://www.cpsc.gov/ABOUT/Cpsia/faq/faq.pdf on page 11.
6. What Does A Manufacturer Do With The Certificate?
The amended Act requires that a certificate "accompany" each product or shipment "or shall otherwise be furnished to any distributor or retailer to whom the product is delivered." Naturally, this requirement generated significant concern among product manufacturers, given the enormous difficulty of ensuring that paperwork accompanies each product through the supply chain. In light of this concern, the CPSC has provided for electronic publication of certificates.
Certificates may be provided electronically under certain conditions. The certificate must be linked to the specific product it certifies and reasonably capable of being accessed electronically as a result of identifying information provided on the product itself or on documents (paper or electronic) accompanying the product in shipment. For example, the Commission suggests that the required access to a certificate and link from that certificate to a specific product could be provided by "a unique identifier that can be accessed via a World Wide Web URL or other electronic means." The URL (or "other electronic means") and the certificate and unique identifier must be immediately available to the Commission and Customs when the product or shipment itself is available for inspection in the United States. 73 FR 68330-331. Certificates for imported products can be sent electronically by the importer to its broker along with other customs documents up to 24 hours before a shipment arrives in the U.S. Distributors and retailers to whom certification must also be supplied could be directed to the same URL by information provided on shipping documents.
A product label may act as a certificate if all of the required information is included. Both paper and electronic certificates must be created before the product is considered a part of U.S. domestic commerce, that is, before the time an imported product would first be inspected by Customs or Commission personnel.
7. What Should A Manufacturer Or Importer Do Now?
Product certification requirements became effective on November 12th. While the CPSC has expressed its awareness of the burden and haste produced by its new rule, one can expect that enforcement actions will be initiated relatively promptly, starting with toys, "children's products" and products containing lead and other banned substances. If a company has not yet responded to the new requirements of the amended CPSA, it must act now by doing the following:
- Conduct a product audit to determine whether the company's products require testing and certification under a CPSC product safety or children's product safety standard.
- If so, establish a reasonable testing program – whether self-testing or by a third party independent laboratory, depending on the product.
- Create a standard certificate form.
- Create a standard process for certification to ensure that all of their certificates are consistent, complete, and accurate.
- Identify a responsible person or persons to oversee that process.
- Design a process for ensuring that the certificate "accompanies" their product(s) and/or shipment(s) either in paper or electronic form.