CPSC Adopts Final Testing and Component Testing Rules; Proposes Two Additional Rules on Testing and Certification

Date: Oct 25, 2011

On October 19, 2011, by a 3-2 vote, the Consumer Product Safety Commission (CPSC) adopted two significant final rules on testing requirements. One rule governs testing and labeling for product certification, applicable principally to children's products. The other establishes requirements for relying on component part and finished product testing by third parties. Notably, the CPSC deferred action on the contours of a "reasonable testing program" for non-children's products. While the final rules included changes that reduce some of their burdens, the CPSC acknowledged that compliance will be costly. The CPSC also initiated two rulemaking proceedings that respond to changes required by H.R. 2715, legislation that was passed and signed into law by President Obama this summer.

What Do the Two Final Rules Do?

  • The periodic testing rule requires children's products be sent to an accredited third party testing laboratory "periodically" to confirm compliance with CPSC regulations. The rule also calls for a "manufacturer" – which includes an importer – to adopt written procedures to periodically test children's products once every year, two years, or three years, depending on the type of testing program implemented. Sample selection issues are being addressed through a separate proposed rule (see below). The final rule also "reserves" action on requirements for a "reasonable test program" for makers of non-children's products. Lastly, the Consumer Product Safety Improvement Act of 2008 (CPSIA) allows manufacturers to voluntarily label products as meeting CPSC requirements. The final rule no longer requires a minimum font size or style when using the voluntary label. 
  • The component part testing rule allows a manufacturer to rely on component part testing so long as traceability and documentation requirements are satisfied. The rule is intended to offer a way to reduce the costs of finished product testing, and permits component part testing for lead in paint to be conducted by x-ray fluorescence spectrometry in accordance with test method ASTM F2853-10. Whether component testing will reduce overall test costs, especially for small manufacturers or importers, remains very much in doubt.

How Will Current Practices Need to Change?

Compliance with these new requirements could demand a significant effort by manufacturers and importers. Among the requirements, written testing programs will need to be crafted, records will need to be maintained for at least five years, and undue influence policies will have to require retraining employees whenever a substantive change occurs to the CPSC's rules. In the meantime, we expect additional guidance from the CPSC for the representative samples requirements. In the short term, the rule may require additional testing.

What Are the Implications of the Two Proposed Rules?

  • The proposed representative sample rule will address the sample selection process to satisfy the requirement that children's products are periodically tested to confirm compliance with applicable rules, bans, standards or regulations. This proceeding is necessary because of changes made to the CPSIA by H.R. 2715. The proposed rule requires that sample selections must be representative of the population of products and demonstrate compliance.
  • The proceeding on reducing third party testing burdens is also mandated by H.R. 2715. CPSC seeks comments on a number of specific questions related to test burdens.

When Do I Need to Comply?

The testing and certification rule will be effective 15 months after it is published in the Federal Register. The component part testing rule will be effective 30 days after it is published in the Federal Register so that it can be used for compliance with third party testing requirements, including lead substrate testing. Comments on the two proposed rules related to testing will be due 75 days after each proposed rule's publication in the Federal Register, offering stakeholders an important opportunity to weigh in on the impact these rules will have on businesses.

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