CPSC’s Final Rule Simplifies Certification Requirements and Encourages CPSC Staff to Focus on Compliance With Safety Standards Rather Than Certification Requirements  

As indicated in our October Customs Update, the Consumer Product Safety Improvement Act of 2008 (CPSIA), which became law on August 14, 2008, requires that U.S. manufacturers 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.  

CPSIA significantly expands the scope of consumer products that are currently subject to consumer product safety standards (i.e., children’s products and toys, jewelry, sporting goods, fabrics, wearing apparel, refrigerators, furniture, hazardous materials, paint, and pharmaceutical products). CPSC is aware that there is an extremely short deadline for compliance with the new certification requirement for these products, and substantial confusion over what is required by way of certification. As a result of this, on November 10, 2008, the CPSC issued a final rule addressing three major issues relating to the Conformity Certification requirements:  

  1.  Who Should Issue the Certificate?

Originally, CPSIA provided that when a product is imported, both the foreign manufacturer and the importer had to certify compliance with CPSC rules unless the CPSC, by rule, specifically exempted one or the other of the responsibility. Additionally, if the product had a private label, the private labeler of such product also had to issue a certificate (in addition to those issued by the manufacturer and importer).  

The final rule simplifies the certification process by limiting the number of parties who must issue conformity certifications unless a preexisting standard requires otherwise. CPSC determined that for imported products, only the importer needs to issue the conformity certificate. Foreign manufacturers and private labelers of imported products do not need to issue certificates, and they do not need to be listed as parties on the certificates. For products manufactured in the United States, only the domestic manufacturer needs to issue the certificate. Private labelers of domestic products do not need to issue certificates, and do not need to be listed as parties on the certificates.

  1. How the Certificate Can Be Filed  

CPSIA provides that every certificate must “accompany” the applicable product or shipment of products covered by the same certificate. The Act further requires that a copy of the certificate be furnished to each distributor or retailer of the product in the United States. The final rule confirms that electronic means can be used to meet the CPSIA certification requirement and that conformity certifications can accompany the product and be furnished to distributors and retailers by a variety of electronic means, e.g., electronic certificates may be posted on a Web site for inspection as long as the parties who need to be able to access it have the necessary information to do so. Please note that the CPSC has indicated that the certificate is required to accompany shipments destined for foreign trade zones whether or not the shipment is intended for consumption in the United States.  

  1.  CPSC Enforcement of General Certification

Under CPSIA, importers who fail to issue Certificates of Conformity may face civil penalties of up to $100,000 per violation (up to $15 million) and corporate officers could face criminal penalties for knowing violations. In addition, imported goods not accompanied by the required certificates may be refused entry and ultimately forfeited and destroyed. While CPSC expects every company to make best efforts to comply promptly with the new certificate requirements, through the final rule, CPSC appears to be focusing its initial enforcement efforts on a product’s compliance with CPSC safety requirements, rather than on the certificate itself. Therefore, the emphasis in the early phases of implementation will not be on stopping shipments for the sole purpose of confirming that they are "accompanied" by the Certificate of Compliance. However, if Customs and Border Protection (CBP), the agency enforcing the certification requirements for imported products, stops and exams for any other reason a shipment that should have a certificate and there is no certificate or information as to how to obtain the certificate electronically with the shipment, CBP may take enforcement action, including rejection of entry, seizure, or destruction of the merchandise at the owner’s expense. Note that the merchandise may not be re-exported. Eventually, examinations for the specific purpose of ensuring that certifications accompany import shipments will be phased in, although the timing for this has not yet been announced.