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Product Safety Alert: CPSIA Plus 2: New Deadlines, New Proposals Affect Manufacturers, Importers, Retailers

Date: Oct 28, 2010

More than two years have passed since enactment of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The Consumer Product Safety Commission (CPSC) has transitioned to a five-commissioner agency, and issued numerous new rules, requirements and guidelines. For example, new, higher civil penalties have been in effect for more than a year. Tracking labels are now required on children's products. Advertisements for toys and games must include a choking hazard warning if the product bears one. Durable infant and toddler products must come with a postage-prepaid customer registration card. Lead limits in paint and surface coatings have been lowered, and new limits on lead in substrate adopted. Third-party testing and certification requirements are in place for some aspects of children's products, with new specific requirements being phased in. A comprehensive proposed rule on testing of both children's products and non-children's products is scheduled to be considered next month, as is a proposed final rule implementing the mandate that the Commission establish a public database on reports of harm.

While the level of regulatory activity remains high, it is the unreasonable deadlines and requirements set out in the statute, and reflected in implementing rules and proposals, that continue to generate high frustration in the business community.

Below is a summary of some of the key requirements related to CPSC's implementation of the CPSIA affecting manufacturers, retailers and even upstream suppliers.

  • Children's Product Interpretive Rule: Many of the new, onerous requirements of CPSIA, including lead limits, tracking labels, and third party testing, apply to "children's products," which are products designed and intended primarily for children 12 and younger. Consequently, making this determination is central to identifying which of the myriad of rules apply to the product. The Commission's final interpretive rule seeks to clarify how various factors will influence a products' age determination and provides examples for specific product categories. However, the Commission's refusal to adopt recommendations to apply the Age Determination Guidelines for Toys only to the product category it was intended for – toys – was disappointing. These Guidelines do not tell you if a product was designed and intended primarily for children 12 and younger; they help you determine the appropriate age-range for whom the product is suitable once that determination has been made.
  • Lead in Children's Products: Lead limits have posed a particular challenge, both to the Commission and to industry, since total content limits often prove unworkable and are not related to risk.
    • Lead Content Limits: Lead content of paint and surface coatings on children's products, as well as furniture and household paint, is limited to 90 ppm. Lead content in substrate materials used in children's products is currently 300 ppm. Stays of the lead substrate limits were adopted for bikes and ATVs, but the stays are scheduled to expire in February, 2011. CPSIA also requires that lead substrate limits drop to 100 ppm in 2011 if feasible; the Commission has issued a request for comments, asking for information on the feasibility of a further reduction of lead substrate limits to 100 ppm in 2011. Many commenters noted technical difficulties with meeting this lower requirement consistently. Some also noted that inter-laboratory variability on total lead content measurements is significantly greater than initially thought, contributing to duplicative testing throughout the supply chain and suggesting a critical need for adoption of statistical uncertainty values to address the issue.
    • Exemptions: Inaccessible component parts are not subject to the total lead content limits. Currently, all plant and animal-based materials (so long as they are unadulterated by the addition of chemicals or treatments that might include lead), all fabrics and printed paper, precious metals, precious gemstones, and most semi-precious gemstones are exempt. Requests for exclusions, including exemptions for lead in the tips of ballpoint pens and for lead in crystal were denied, despite compelling scientific data that children would not be exposed to harmful levels of lead, because of restrictive legislative language that the Commission said barred its ability to grant exemptions. In short, no exemptions from the restrictive lead content limits have been adopted, despite compelling data that there is no risk of exposure to children. This has generated some of the strongest criticism of the law and the absence of exemptions has posed a particular hardship on the fashion industry.
  • Third Party Testing and Certification of Children's Products: Third party testing and certification requirements for children's products have posed considerable challenges.
    • Enforcement Stay and Exceptions: A stay of enforcement of third party testing and certification requirements for many safety aspects of children's products has been extended through February, 2011, subject to some significant exceptions. Third party testing is now required to confirm compliance with certain requirements applicable to children's products, such as lead in paint, lead in metal jewelry, small parts, cribs, and pacifiers. Third party testing requirements will be phased in after the Commission adopts final rules and accreditation standards for specific requirements. For requirements subject to the stay of enforcement, this means that while the substantive requirements must be met, manufacturers, importers, private labelers and retailers will not face enforcement action related to a failure to have certificates of compliance based on third party testing.
    • Additional Accreditation Standards: The Commission has issued a series of proposals to mandate third party testing by accredited laboratories for a variety of tests applicable to children's products, like flammability testing for mattresses, textiles, and the like. These are general tests that apply to all products, whether for children or other consumers, in the category, leading many to argue that these requirements should be subject to the general certificate of conformity (GCC) obligation. The Commission has taken the view that it is obligated under the statute to require third party testing for any requirement that might apply to a children's product.
  • Testing, Labeling and Component Testing: Under CPSIA, manufacturers of any consumer product must demonstrate compliance with an applicable rule, ban, standard or regulation under laws administered by the CPSC through a GCC. GCCs for adult products may be based on in-house testing (unless third-party testing is otherwise required in the underlying rule). Children's products are subject to testing by third-party accredited laboratories. The CPSC has issued proposed rules on testing and certification and component testing, which will be up for a vote in November.
    • Reasonable Testing Program: The proposed rule specifies that the following five elements must be part of any manufacturer's "reasonable testing program": 1) product specifications that describe the product and list all safety rules, standards, etc. with which the product must comply; 2) certification tests performed on samples of the consumer product; 3) a production testing plan describing the tests and test intervals to provide reasonable assurance that products meet applicable rules; 4) a remedial action plan to address unacceptable or failing results; and 5) documentation of the reasonable testing program and how it was implemented. For children's products, the reasonable testing program incorporates additional requirements, such as third party testing, initially, at specified production intervals, and whenever a "material change" has occurred, and safeguarding against undue influence on third party laboratories. Many of those submitting comments expressed concern about the impractical nature of the guidance, particularly aspects of a "reasonable testing program," including the production testing requirements. Many suggested that the Commission's complicated approach to selecting statistically random samples does not reflect either real-world production and operations or common understanding of the term "random samples." This term is ordinarily viewed to simply mean samples that have not been preselected and that are reasonably representative of an actual product. Recordkeeping obligations will prove burdensome, especially to small businesses. For children's products, documentation must include written policies and procedures to avoid "undue influence" on laboratories, including annual employee training (reflected through signed attestation forms).
    • Component Testing: Relatedly, the Commission proposed rules for component testing. Component testing, viewed to provide a mechanism to reduce test costs through the supply chain, may prove less useful than initially thought. First, traceability obligations are likely impossible for many commodity-type products. Second, suppliers are cautious about blanket certifications in circumstances where a customer might alter the component. Third, the proposed rule establishes that any component or raw material supplier who provides a component or raw material certification must assume the legal obligations of compliance. Many suppliers who do not make or produce "consumer products" are not willing to subject themselves to the jurisdiction of an agency which otherwise has no jurisdiction over their products and operations, suggesting there is less likelihood that component testing will provide a real, effective solution to the burdensome nature of compliance.
    • Consumer Product Labeling: The proposed rule would implement the provision of CPSIA requiring CPSC to initiate a program by which a manufacturer or private labeler may voluntarily label a consumer product as complying with the certification requirements of CPSIA. If a manufacturer does choose to label, however, the proposed rule establishes requirements for the label.
  • Child Care Article Definition: The Commission has not issued a final interpretive rule on the definition of a child care article. Child care articles, and toys or toys that can be mouthed, are subject to the limits on phthalates, so a much smaller subset of products is subject to this limit than to the lead content limits. The CPSC has indicated that it would distinguish between products that might be involved in "feeding, sucking, teething or sleeping" of a child 3 and under, but which would not be in direct contact with a child (such as a bottle warmer), and items that would be in direct contact with a child.
  • Phthalates Testing: The CPSC last year changed an earlier statement of policy that indicated testing for phthalates in toys, toys that can be mouthed, and child care articles should be based on the weight of the entire product, advising instead that phthalates should be tested on a component basis. While the Commission has identified categories of materials that are not likely to contain phthalates, it has not adopted an inaccessible component parts exemption. Phthalates testing is extremely expensive based on the CPSC's own estimates of test costs in the proposed test rule, so adopting appropriate exclusions is an important aspect of reducing unnecessary test costs.
  • Public Database: The Commission has issued a proposed rule to implement the public database, a topic that remains highly controversial. The proposed rule would establish procedures for submitting reports of harm to the database and allow manufacturers and private labelers to comment on reports of harm both before and after publication of such reports. Concern over the proposed rule is focused on the near universal ability for anyone to submit a report of harm (including attorneys, investigators, consumer advocacy groups, and observers) and the short time-frames in which a manufacturer must submit a comment in response to a report of harm.

Keller and Heckman's Consumer Product Safety Team advises clients regarding compliance with laws and regulations enforced by the CPSC as well as related laws applicable to consumer products, including green chemistry and environmental requirements. For more information contact Sheila A. Millar, millar@khlaw.com, Jean-Cyril Walker, walker@khlaw.com, or Alisa A. Karlsons, karlsons@khlaw.com.