To address past difficulties some manufacturers had in determining the location of products that were recalled and to allow consumers to more easily identify recalled products, the Consumer Product Safety Improvement Act of 2008 (CPSIA) requires manufacturers to permanently affix tracking labels to most children's products. Despite frustration and fierce opposition from manufacturing groups, the CPSC declined to delay the August 14, 2009, effective date for the new tracking label requirements. Unlike other provisions of the CPSIA, however, the tracking label requirement applies only to products manufactured after the August 14 effective date. The Consumer Product Safety Commission (CPSC) has recently issued interpretative guidance on this requirement.

Tracking Label Contents

The content of the tracking label must enable the manufacturer and the consumer to ascertain the following product information:

  • Name of the manufacturer or private labeler.
  • Date (or date range) of production.
  • Location of production (country, state and city is sufficient for the label, but the manufacturer must also know the building).
  • Cohort information (e.g., batch, run number or other identifying characteristic).
  • Other information that would allow the manufacturer to determine the source of the product.

Because of the wide variety of children's products on the market and variations in manufacturing processes, the CPSC has declined to mandate a uniform system for labeling. Instead, the CPSC expects each manufacturer to make "a reasonable judgment about what information can be marked on their product and packaging, given the character and type of their product and packaging, and what required information can be ascertainable, given the character and type of their business." The reasonableness of a manufacturer's labeling will be measured by common practices in the industry. As a general rule of thumb, manufacturers should include all information that would allow it to trace back and identify the cause of lead or phthalate contamination or other defect.

Manufacturers who choose to translate the required identifying information into a numerical code must make the translation available to consumers. Manufacturers may satisfy this requirement by including a telephone number or Web site on the tracking label that would allow consumers to ascertain the product-specific information.

What Must Be Labeled?

The CPSIA requires that both the product and the packaging contain a tracking label. But there are several exceptions, including:

  1. Certain disposable packages—If a label is visible on the product through disposable packaging, there is no need for the label to appear on the package.
  2. Small products—If a product is too small to be labeled, markings only on the packaging are permitted.
  3. Packages that are integral parts of the product—Products such as board games, certain arts and crafts kits, marbles, beads, etc., need not be individually labeled if the package is intended for permanent storage with the individual pieces.
  4. Vending machine products—Products sold through bulk vending machines need not be individually labeled.
  5. Aesthetically impracticable—If the aesthetics of the product would be ruined by a mark and a mark cannot be placed in an accessible but inconspicuous location, the product need not be individually labeled.
  6. Structurally impracticable—If a permanent mark would impair the utility or structural integrity of the product, the product need not be individually labeled.
  7. Pieces sold in sets—If products are sold in sets (shoes, games, etc.), there is no need to label each individual piece.

The Label Must Be "Permanent"

The tracking label on the product itself must be permanent, which means it must "reasonably be expected to remain on the product during the useful life of the product." Engravings, sewn-on tags and other permanent attachments are generally sufficient. Adhesive labels and other types of removable labels are not.

Labels on disposable packaging need only be permanent enough to reach the consumer (e.g., durable adhesive labels). Packaging that is also used to permanently store the product (e.g., a box for a board game, a bag for building blocks), however, must contain a permanent label.