The Consumer Product Safety Commission (CPSC) announced yesterday its decision to once again extend the stay of enforcement for the testing and certification of lead content in children’s products requirements contained in the Consumer Product Safety Improvement Act of 2008 (CPSIA). The CPSC announced it had voted 4-1 on January 31, 2011 to extend the stay of enforcement for third-party testing and certification of lead content in children’s products until December 31, 2011. This is the third time the Commission has voted to extend the original stay of these requirements, which were to have gone into effect in February 2009. Chairman Inez Tenenbaum called this the “final extension.”

While the extension of the stay continues to grant relief from the testing and certification for lead content requirements under Section 102 of the CPSIA, as has been the case since the original stay was announced, it does not stay the underlying requirements themselves. In other words, manufacturers and importers still do not have to test and certify to the total lead content limits, but are still required to be fully compliant with them. The CPSIA requires that all children’s products have no more than 300 parts per million (ppm) of lead content. The lead content limit will drop to a stricter 100 ppm on August 14, 2011, unless the CPSC determines it is not technologically feasible to establish this lower limit for a product or product category. Chairman Tenenbaum emphasized it “remains unlawful for children’s products that violate these requirements to be placed on the market.” The stay of enforcement does not apply to the testing and certification obligations related to the current limit of 90 ppm for lead in paint and surface coatings—a limit also established by the CPSIA—or the current 300 ppm limit on lead content in metal components of children’s jewelry. Third-party testing and certification is required for children’s products in these categories.

Since the passage of the CPSIA in 2008, the Commission has clarified that testing and certification by component part suppliers could be relied on by manufacturers and importers in meeting their own testing and certification obligations. Commissioner Anne Northrop noted the financial burden imposed on manufacturers by the third party testing requirements and emphasized that extending the stay is “an important step toward fulfilling the Commission’s commitment to allow component parts testing and certification to become a viable compliance alternative for manufacturers before third party testing and certification for lead content in most children’s products becomes mandatory.” The Commission has proposed component parts testing rules, and, as Commissioner Northrop noted is only “just beginning to consider” the final version of the rule.

In contrast with the prior stays of enforcement, where the Commissioners would need to vote on the expiration date to either extend or terminate the stay, this stay will “automatically lift” on December 31, 2011 according to Chairman Tenenbaum. Accordingly, beginning on December 31, manufacturers and importers of children’s products that are subject to the lead content limit must have the appropriate certificates demonstrating that their products comply with the CPSC-approved third party laboratory testing requirement in order for their products to be sold in the United States.