General Conformity Certificates Must Now Be Provided For Domestic and Imported Consumer Product Shipments

The U.S. Consumer Product Safety Commission has issued a final rule implementing a new set of certification requirements for “consumer products.”[1] For all such products that are the subject of a CPSC standard or any “similar rule, ban, standard or regulation under any other Act enforced by the Commission” (such statutes include the Flammable Fabrics Act, the Hazardous Substances Act, the Poison Prevention Packaging Act and the Refrigerator Safety Act) and manufactured after November 12, 2008, the importer or domestic manufacturer must provide a “Certification of Conformity.”

The Certification must contain the following information in English (as well as in other languages if the certifying importer or domestic manufacturer chooses):

(1) Identification of the product covered by the certificate.

(2) Citation to each CPSC standard or other safety regulation to which the product is being certified.

(3) Identification of the certifying importer or domestic manufacturer (as applicable), including its name, full mailing address and telephone number.

(4) Contact information for the individual maintaining records relied upon for certification purposes, including the custodian’s name, e-mail address, full mailing address and telephone number.

(5) Date (month and year at a minimum) and place (including city and country or administrative region) where the product was manufactured.

(6) Date and place (including city and country or administrative region) where the product was tested for compliance.

(7) Identification of any third-party laboratory on whose testing the certification depends, including its name, full mailing address and telephone number.

The Certifications must “accompany” each product shipment. They are required to be “furnished” to retailers or distributors (and to the CPSC upon request). The Certifications may be provided electronically, but in that event, additional information also must be provided on the product or accompanying it (such as a unique identifier) which can be accessed via the World Wide Web URL or by other means electronically. The Certifications also must be made available prior to arrival of the subject goods in this country (in the case of imports) or prior to their introduction into U.S. commerce (in the case of domestically manufactured products).

Failure to certify imports in accordance with the new CPSC rule may result in such products being denied entry into this country, as well as their possible destruction at the owner’s expense (although the Commission has indicated a willingness to allow for “an initial period of adjustment” before it proceeds to enforce the product certification requirement more strictly). Non-compliance also could subject importers and domestic manufacturers to a risk of civil penalties (recently increased from a maximum of $1.75 million to $15 million per other CPSA amendments) or criminal prosecution in the case of a knowing violation.

The CPSC’s certification requirements for consumer products are among a number of sweeping changes in U.S. product safety law resulting from the enactment of the Consumer Product Safety Improvement Act of 2008 (which President Bush signed into law on August 14, 2008).