The Consumer Product Safety Commission reached a 1-1 tie on a request for an emergency stay of enforcement on tracking label requirements under section 103 of the CPSIA. As such, the Commission reached no decision on the issue, leaving the statutory tracking label requirements in effect for children's products manufactured on or after August 14, 2009. The individual statements of the Commissioners can be found here.
Acting Chairman Nancy Nord voted for the stay, noting that there has been insufficient guidance from Commission staff to date. She stated that staff was developing a guidance document for Commission consideration by the end of June, but that that deadline was aggressive given the complexity involved. Nord noted that even with such guidance, manufacturers would have insufficient lead time to implement the requirements.
Commissioner Thomas Moore voted against the stay, stating his belief that Congress expected the provision to "evolve over time" and that "the 'guesses' that . . . manufacturers are making [as to how to comply] are not going to be 'wrong' as long as they have the information required by the statute and do not take a cavalier approach to the 'to the extent practicable' language of the statute. Moore pledged that the Commission would work with companies that "have diligently tried to comply with the statute, but miss the mark on devising a complying tracking label system."
Regardless of any enforcement discretion exercised by the Commission, the failure to provide either guidance or a stay leaves manufacturers facing numerous challenges, including how to deal with small products or other products not amenable to marking, and how to handle the fact that retailers may demand that their vendors use a specified marking system, forcing manufacturers to deal with conflicting demands.
Until further guidance is provided, manufacturers will need to develop a good-faith method of compliance, and work within their supply chain to reduce or eliminate any such conflicting demands.
