The Consumer Product Safety Commission (CPSC) in a 3-2 vote approved new rules to require ongoing independent third party product testing for children’s products. Domestic manufacturers, importers and private labelers will now be required to have perioidic independent tests and certify that their children’s products comply with U.S. product safety standards.

The new rule will mandate that if there is a material change to a product, such as a change in the product design, manufacturing process, or the source of component parts, companies must re-test and re-certify that the product complies with federal safety standards. In addition, companies must have to mainting records on the testing and certifications .

In an effort to reduce the burden on companies, the CPSC voted to allowing firms to use component part and finished product testing conducted by their suppliers, in order to meet the testing and certification requirements.

Firms are already required to do initial testing on some products, including among others, those with lead paint, those with small parts, full size and non-full size cribs, pacifiers and children’s metal jewelry. The new rules will require firms to go beyond initial testing to ensure that products continue to meet safety standards.

All domestic manufactures, importers and private labelers of children’s products will be required to test the products periodically to ensure continued compliance with federal safety standards.

Significant Debate

There is significant debate about the impact of the testing regiment. The new rules are expected to drive up testing costs. Small businesses can expect testing costs to exceed 12% of their revenues. Retailers may cram down expensive testing requirements, forcing small businesses out of the retail space. The proposed rules did not include a proposed exemption for low-volume manufacturers. The proposed rules also do not clarify what constitutes a compliant “reasonable program of testing” or the frequency of required testing under the law.

Children’s products that comply with the law may be labeled as “Meets CPSC Safety Requirements.” The labeling is voluntary.

The testing and certification rule will go into effect 15 months after it is published in the Federal Register.

The CPSC also voted (5-0) to move forward with a notice of proposed rulemaking on what constitutes representative samples for testing compliance. Under this proposal, a company could use product samples for periodic testing that are known to be representative of all the product manufactured or imported since their last periodic or certification test. Companies will be required to document their testing and keep those records.

The CPSC will continue to seek public comment on opportunities to reduce the cost of third party testing requirements as required by Congress.