Failure to comply can result in significant civil and criminal penalties, and imports not accompanied by the Certificate will be denied entry and may be destroyed

Overview

The Consumer Product Safety Improvement Act of 2008 (CPSIA), which became law on August 14, 2008, requires that manufacturers (foreign or domestic) and importers issue a “Certificate of Conformity” assuring that all consumer products subject to any rule, ban, standard, or regulation enforced by the Consumer Product Safety Commission (CPSC) meet all applicable safety standards. Hence, most categories of consumer goods, including but not limited to children’s products and toys, jewelry, sporting goods, fabrics, wearing apparel, refrigerators, furniture, hazardous materials, paint, and pharmaceuticals subject to child-resistant cap standards, produced on or after November 12, 2008, will be subject to the Certificate of Conformity requirement.

Moreover, the CPSIA requires that such certificates accompany all shipments of covered products when imported. Importers who fail to issue Certificates of Conformity will face civil penalties up to $15 million (up to $100,000 per violation). Corporate officers could face criminal penalties for knowing violations. In addition, imported goods not accompanied by the required certificates can be refused entry and ultimately forfeited and destroyed.

Certification Requirement

When a product is imported, both the foreign manufacturer and the importer must certify unless the CPSC, by rule, exempts one or the other of the responsibility. Additionally, if the product has a private label, the private labeler of such product must also issue a certificate (in addition to those issued by the manufacturer and importer).

At present it appears that the Certificate of Conformity may be issued either jointly or separately by the manufacturer and importer. Moreover, CPSC has generally allowed the importer to certify based on tests conducted by the foreign manufacturer, provided that: 

  1. a copy of the test records is in English and kept in the U.S.; 
  2. the importer is a resident of the U.S. or has a resident agent; and 
  3. the test records are maintained for a period of 3 years from the date of certification.

It is important to note, however, that if the importer is certifying separately, it must meet all three requirements cited above or else the product will be considered to have been falsely certified, which is a “Prohibited Act” subject to civil penalties. Failure to issue a certificate is also a violation of the Act potentially subject to the penalties outlined above.

The form of the certificate is not prescribed by the Act; however, the CPSC has indicated that the certificate could be in the form of “a label on the product, an attachment on the shipping container, a separate document, or included in another document, such as an invoice, bill, statement, or bill of lading.” Regardless of the form, the certificate must specify, in English, the full contact information of the manufacturer and importer, as well as the person maintaining records of the test results upon which the certification is based; must reference each applicable standard, ban, rule, or regulation to which the product is subject; and must indicate the place and date of manufacture. The certificate may include the same content in other languages.

The Act provides that every certificate must “accompany” the applicable product or shipment of products covered by the same certificate. Although currently there is no requirement to file the certificate with U.S. Customs and Border Protection (CBP) or CPSC, if a container of products subject to this Act is opened for sampling or other reasons, and there is no certificate of conformity accompanying the product, admission of this shipment will be refused and the product may be destroyed at the owner’s expense.

The Act further requires that a copy of the certificate be furnished to each distributor or retailer of the product in the United States.

Testing Requirements

The certificate must be based on a "reasonable" testing program. However, for certain products, such as children’s products, the Act requires that the testing be conducted by independent thirdparty accredited laboratories by the end of 2008. CPSC will maintain an up-to-date list of accreditation entities on its Web site (http://www.cpsc.gov). A product that is subject to a standard and is exempted from testing must still be certified.

Penalties

The Act significantly raises civil penalties ($100,000 per violation, up to $15 million), empowers state attorneys general for the first time to enforce federal product safety laws, and provides for potential criminal liability for such violations for corporate officers.

Opportunity for Comments by October 29

CPSC is seeking the following information by October 29, 2008: 

  • specific recommendations for how certificates of conformity can be made available to the CPSC for inspection, electronically or otherwise, taking into account the timing and cost of any such proposal;
  • specific recommendations for how certificates of conformity, whether electronic or paper, can accompany shipments of products such that they can be (a) available for immediate inspection for compliance and enforcement and (b) tied to specific shipments of products; 
  • specific recommendations for how certificates of conformity should be furnished to distributors or retailers, electronically or otherwise; 
  • specific comments or concerns regarding the provision of either a paper or electronic certificate accompanying products; 
  • specific comments or concerns regarding multiple certifications by a foreign manufacturer, importer, and/or private labeler for the same product.