Safety Matters

CPSC Stay on Testing and Certification Requirements: What Does it Mean to Manufacturers and Retailers?

As news broke Friday afternoon that the CPSC has granted a one year stay on certain product testing and certification requirements, manufacturers breathed a collective sigh of relief.  But what does the stay really mean?  How much relief can manufacturers expect?  And, what about the retailers, will this stay hurt more than help?  Let’s take a look at some of the key issues and how they are affected by the stay.

General Conformity Certificates (GCC):

Before the Consumer Product Safety Improvement Act (CPSIA), GCCs were required for products with mandatory standards in place, including bike helmets, automatic garage door openers, lawnmowers, swimming pool slides, mattresses, candles with metal core wicks and lighters.  The CPSIA expanded the requirement of GCCs to include all products subject to any consumer product safety “rules, bans, standards and regulations.”  As before, the GCCs called for under the CPSIA require that, for each product, manufacturers and importers must list all of the applicable rules, and certify by means of reasonable testing that the product complies with each.

According to the CPSIA, GCCs must include certification of compliance with any new, applicable rules imposed by the CPSIA by November 12, 2008, or by the time an applicable rule goes into effect. 

The stay granted Friday effectively reverts US Code Title 15, Section 2063, as it pertains to GCCs, back to the pre-CPSIA state for one year. 

Third-Party Testing for Certification of Children’s Products:

The CPSIA imposed a new rule stating that GCCs alone are not enough for products intended for children aged twelve and under, and that third-party testing would be required for certification.  For children's products, certificates of compliance by accredited third-party testing facilities are required for each applicable rule.  Because accreditation guidelines for testing facilities are to be rolled out over the course of a year from the time the CPSIA was enacted, manufacturers and importers must continually update their testing and certificates to include new rules as the accreditation guidelines become available.

With the stay in place, certificates of compliance by third-party testing facilities are not required until February 10, 2010, but it only applies to rules for which the Commission has not already established third-party accreditation guidelines.  Accordingly, under Section 2063, as amended by the CPSIA, manufacturers and importers of children’s products are still expected to certify by accredited third-party testing that products comply with rules for lead paint and surface coatings, full size and portable cribs, pacifiers, small parts, and lead content of metal jewelry.*

What it Means:

For manufacturers of products not intended for children aged twelve and under, and that were not previously required to provide General Conformity Certificates (GCC), GCCs will not be required until at least February 10, 2010. 

For manufacturers of children's products, the stay means that neither GCCs nor third party testing certificates will be required to prove compliance with new laws regarding baby bouncers, walkers, lead content, phthalates or any other children’s product safety rule for which third-party accreditation requirements have not yet been published, for at least one more year, until February 10, 2010. 

Importantly, although manufacturers and importers may not be required to certify that their products comply with these “rules, bans, standards and regulations,” they are still required to be certain that they do, in fact, comply.  In other words, it is still against the law to violate any rule, ban, standard or regulation imposed by the CPSIA or otherwise, and doing so will result in civil and criminal penalties, which were dramatically increased by the CPSIA.  Therefore, the question remains, how does one know for certain that a product complies with laws, especially hazardous substance bans, without testing?

Some products, such as items made of fabric or printed paper like books, are likely inherently free of lead and phthalates, and those manufacturers will probably take their chances and continue to make and sell products after the bans go into effect on February 10th, 2009.  However, for makers of products that require metal components, for example, the risk of selling a product with lead content exceeding the new limits is much higher.  Those manufacturers will still need to either test products or product-components themselves, or request certification from their suppliers.

Furthermore, retailers, especially large retailers with significant buying power, are unlikely to accept products from any manufacturer, large or small, without some sort of certification that the products are in compliance, regardless of what proof is required by the law.  In addition, many retailers may holdup future orders until manufacturers certify the retailer’s current inventories, produced before February 10, 2009, are also in compliance.  For the same reasons, we can expect to see small retailers joining forces to pressure manufacturers into providing proof of compliance.  In both cases, retailers will incur some costs in both labor and delayed orders while working with manufacturers to solve the problem.  Of course, retailer costs will be much higher if manufacturers are unwilling or unable to cooperate, forcing retailers to either test on their own or simply not sell current inventories.  (More on the effect of the lead ban on retailers here.)

Overall, for small manufacturers and crafters who make and sell products directly to the public - and those products are not painted, are not cribs, are not pacifiers, do not contain small parts and are not metal jewelry - the stay lifts a huge burden for at least one year.  For most other manufacturers, whether because their products fall into one of the categories unaffected by the stay, or because retailers are unwilling to sell their products without them, certificates of some sort are still going to be a requirement.

*New rules regarding ATVs, Pool and Spa Safety and voluntary guarantees under the Flammable Products Act, also are not included the stay.

Full Text of CPSC Stay Announcement

CPSC General Counsel Publishes Clarification on Lead Testing and Certification Requirements

Earlier this week, the CPSC General Counsel published a letter (dated January 15, 2009) regarding lead testing and third-party certification requirements for children’s products.  Notably, General Counsel indicated that there could be changes that would allow third-party testing of product components rather than requiring testing of every finished product.

In addition, General Counsel clarified that, beginning February 10, 2009 (until August 2009) children’s products do not need to be certified by a third-party with regard to lead, but rather only need a General Conformity Certificate.  General Conformity Certificates can be based on a reasonable testing program, including X-Ray Fluorescence (XRF) technology “if that technology is used in a reliable manner.”  In addition, for General Conformity Certificates, the final product does not need to be tested if the component parts have been tested and the manufacturing process does not introduce potential new sources of lead.

Similarly, a retailer may rely on General Conformity Certificates provided by a manufacturer with regard to lead until August 2009.

As of August 14, 2009, General Conformity Certificates will not be enough to certify children’s products with regard to lead content.  At that point, certification by an accredited third-party will be required, and, based on the rollout schedule set forth in the CPSIA, lead limits will drop to 300ppm.  Further, as written, the CPSIA requires third-party tests to be completed on finished products; component testing is not allowed.   However, General Counsel provided some indication that that may change before the testing requirements take effect: 

“The Commission staff has been considering the issue of whether and when component testing will be sufficient for the certification of products based on third-party testing.  We anticipate addressing the use of component testing for third-party certification by rule or guidance before the third-party testing requirements go into effect for lead content in August [2009]”

I will post additional information as it becomes available.

Source: January 15, 2009 Letter of CPSC Gerneral Counsel

UPDATE 01/30/09:  CPSC grants one year stay on certain certificate and testing requirements.

Comparing Old and New Consumer Product Saftey Acts Proves Difficult - Showing Edits Inline May Help

The Consumer Product Safety Improvement Act of 2008 has generated quite a bit of angst and confusion for companies trying to do the right thing.  Manufacturers, importers and retailers struggle to figure out which of their current practices are still acceptable versus what actions need to be changed.

Currently, the published version of US Code Title 15, Chapter 47 (Commerce and Trade - Consumer Product Safety) only includes laws passed prior to January 3, 2007.  However, in my last post, I published a chart that lists the amendments enacted by the CPSIA of 2008, the full text of which is readily available.  Hence, everything a company needs to ensure it is compliant is right here - the old laws and the revisions.  So why all the trouble? 

Part of the problem is that reading through these documents is not such a simple task. Companies would need to go through passages like the one below with both, lengthy documents side by side in order to figure out exactly what the new laws are.

Section 14(b) (15 U.S.C.2063(b)) is amended—

(1) by striking ‘‘consumer products which are subject to

consumer product safety standards under this Act’’ and

inserting ‘‘any product which is subject to a consumer product

safety rule under this Act, or a similar rule, regulation,

standard, or ban under any other Act enforced by the Commission,’’;

and

(2) by striking ‘‘or testing programs.’’ and inserting ‘‘,unless…. 

I know the pain well, as I was one of those who flipped back and forth between the two documents the very day the CPSIA was published in August of this year.  It is a time consuming and tedious task for anyone who cannot afford to wait for the law books to be updated.

The official code is scheduled to be revised in January 2009 and will then incorporate all the recent amendments, including those passed by the CPSIA of 2008.  Until then, the CPSC has developed and “unofficial compilation” of the laws with all the amendments up to and including the CPSIA of 2008.  This is an extraordinarily helpful tool, especially for companies that want or need to start from scratch to ensure that they are compliant with all laws – old and new.  

However, for companies that have been through a compliance audit in the past and are certain that they were correctly following all of the rules up until the CPSIA was passed in August 2008, starting from scratch by referring to a complete, revised document may not be as useful since one cannot identify the changes from the revised version alone. 

In attempt to help with this problem, I have contemplated publishing a “redlined” version of the laws that would show all the changes.  To test whether this may be a useful tool, I have posted an edited version of Section 2063: Product Certification and Labeling, showing all revisions imposed by CPSIA  Section 102: Mandatory Third Party Testing for Certain Children’s Products, and Section 103: Tracking Labels for Children’s Products.

The compiling process takes a bit of effort, so if you find the version with revisions shown inline useful, please do let me know either via a comment to this post or via email (Jennifer [at] WeMakeItSafer.com).  If I receive enough feedback to suggest it is a worthwhile task, I will post additional sections with the amendments identified.

CPSC to Streamline Certification Requirements Under CPSIA Sec. 102

Due to apparent mass confusion surrounding the new product certification rules, the Commission’s final ruling limits the types of companies that must provide certifications and trims down some of the administrative requirements.

Background:

Section 14 of the Consumer Product Safety Act [US Code Title 15, Chapter 47, Section 2063] covers Product Certification and Labeling. The section was recently amended by Sections 102 and 103 of the CPSIA of 2008.   This post will cover the amendments specified by Section 102 and the changes that the CPSC ruled on today.

Originally, Sec. 102 of the CPSIA specified that:

• As of tomorrow, November 12, 2008 (90 days after enactment of CPSIA), every manufacturer, importer and private labeler of a product intended for import, consumption, storage or sale in the USA must, for each product, provide a certificate that lists every applicable rule, standard and law and certifies that the product complies with each.


• Every manufacturer, importer and private labeler of a children’s product intended for import, consumption, storage or sale in the USA, must first issue a certificate of proof that the product has been tested for compliance by an accredited third party. 
  

The accreditation requirements for third parties are to be published by the CPSC on a rolling basis by the dates listed below.  Once published, companies will then have 90 days to comply.

Third Party Accreditation Requirements to be Released by:

September 13, 2008:   Lead Paint (p. 54564 of the Federal Register (FR))
October 13, 2008:       Full-Size Cribs, Non-Full-Size Cribs, Pacifiers (p. 62965 FR)
November 12, 2008:    Small Parts (p. 67840 FR)       
December 12, 2008:   Children’s Metal Jewelry (p. 78334 FR)       
March 12, 2008:         Baby Bouncers, Walkers, Jumpers         
June 13, 2008:           All other children’s product safety rules.

I will continue to post links to the accreditation requirements as they become available.

Commission’s Final Ruling on Sec. 102:

Today, the Commission issued its final rule regarding Section 102.  In it, the Commission designates "the importer as the sole entity that must issue the certificate required by Sec. 14 (a) in the case of an imported product.”  The certificate must be available upon arrival for inspection in the US, or sooner.

For domestically produced products, the Commission designated “the domestic manufacturer as the sole entity that must issue the certificate required by Sec. 14 (a).”  The certificate must be available before the “product or shipment is introduced into domestic commerce.”

In both cases, the Commission ruled that certificates may be provided electronically if they can be uniquely identified to a particular product and can be reasonably accessed.  Electronic and paper certificates must include the following information (summarized here):

1.    Product(s) covered by the certificate

2.    List of applicable safety rules, bans, standards or regulations

3.    Name, address and phone number of importer or domestic manufacturer providing certificate

4.    Contact information for person maintaining test records

5.    Date and location where product was manufactured

6.    Date and location where product was tested

7.    Name and contact information for any third-party tester or lab used

In addition, although the Commission stated that it expects all companies to put forth their best effort to comply with the new certification rules, due to limited resources it will initially focus on compliance with the safety rules and laws rather than the format of the certificate itself.

 
Commission's final rule regarding Section 102