Effective February 8, 2013, manufacturers and importers of “Children’s Products” must begin complying with a Consumer Product Safety Commission (“CPSC”) rule describing how to test and certify that Children’s Products meet all applicable CPSC rules and requirements. The definition of “Children’s Product” is complex, but, generally, it is a product designed or intended primarily for children 12 years of age or younger. Children’s Products must be tested to all applicable requirements by an approved,  PSC accredited, third-party testing laboratory (“accredited testing lab”), and a manufacturer or importer (“manufacturer”) must then issue a children’s product certificate showing compliance.

Also as of February 8, 2013, manufacturers and private labelers of both children and nonchildren’s consumer products under the CPSC’s jurisdiction have the option of placing a uniform label on or with products meeting certification requirements that states, “Meets CPSC Safety Requirements.” The CPSC has made clear that using such label is at the manufacturer’s discretion. Any such label must be visible and legible.

The new rule applies to products manufactured or imported into the United States for sale on or after February 8.

Background

The new rule, 16 C.F.R. 1107, was first published in the Federal Register on November 8, 2011, and was the subject of extensive comments and amendment. It was issued pursuant to Section 102 of the Consumer Product Safety Improvement Act (“CPSIA”), which requires that both children and nonchildren’s consumer products be certified to comply with applicable product safety rules, standards, or bans. Under Section 102, Children’s Products must be tested and certified based on a CPSC-accredited testing lab. In contrast, consumer products which are not Children’s Products must be tested and certified to show compliance with all safety requirements of the CPSC based on a “reasonable testing program,” and a general certificate of conformity (“GCC”) must then be issued. (Although there was an effort in earlier drafts of the new rule to define a “reasonable testing program,” that portion has been dropped from the final regulation.) It is not necessary, however, to employ a CPSC-accredited testing lab for consumer products which are not Children’s Products.

New Rule Requirements for Testing and Certification of Children’s Products

Under the new rule, manufacturers of Children’s Products must submit sufficient samples of a product to enable a CPSC-accredited testing lab to determine, with a high degree of assurance, that the Children’s Product meets all applicable CPSC product safety rules. In some cases, Component Part Testing (16 C.F.R. 1109) may be used to meet this requirement. If a product sample fails certification testing to any applicable rules, the manufacturer must investigate the reasons for the failure and take necessary steps to address them before certifying the product, even if other tested samples of the same product met the standard. The manufacturer also must conduct, to the same degree of assurance, periodic and “material change” testing.

Periodic testing applies to continuing production of Children's Products. If a Children's Product initially is certified, and then additional production continues, effective February 8, periodic testing is required for all of the applicable Children's Product safety rules, even if there are no material changes in the product. Periodic testing must be often enough to assure ongoing compliance with the applicable safety rules and in no less than 1-, 2-, or 3-year intervals, depending on whether the manufacturer has a periodic testing plan, a production testing plan, or conducts continued testing using an accredited ISO/IEC 17025:2005 laboratory. Each plan is described in the rule. Component Part Testing rules may also be used to satisfy periodic testing requirements, as applicable.

Material Change Testing and recertification must occur whenever a Children’s Product undergoes material change affecting the product’s compliance with applicable rules, bans, or standards. A material change may involve the product’s (a) design, (b) manufacturing process, or (c) the replacement of one component part of a product with another component part. If the material change involves component parts, Component Part Testing may satisfy material change requirements, depending on the circumstance. Changes causing a Children’s Product safety rule to no longer apply to a particular Children’s Product do not require material change testing.

Safeguards Against Undue Influence

The rule also requires that a manufacturer establish procedures safeguarding the third-party testing lab(s) it uses from undue influence by the manufacturer. At minimum, manufacturers must have a written policy on which appropriate staff members will be trained and retrained if the policy is updated substantially. Staff participating also must sign a statement attesting that they have been trained on the policy. Further, the manufacturer’s procedures must require that the CPSC be notified immediately of undue influence allegations against the manufacturer. Employees also must be informed of how they can make such complaints to the CPSC confidentially.

Recordkeeping

The manufacturer must maintain required documents related to Children’s Product certification, specified in the rule, for five years. The records must be available to the CPSC on request, by hard or electronic copy.