Safety Matters

WeMakeItSafer is Prepared for New Tracking Label Laws

By the end of August, consumers should start to see some changes on the children’s products they buy.   Products intended for children aged twelve and under that are manufactured on or after August 14, 2009 will be required to include permanent markings on both the packaging and the item itself.  The markings will include information that allows consumers to identify who the manufacturer or private labeler is as well as when and where the product was made.

The labels, mandated by the Consumer Product Safety Improvement Act (CPSIA) passed last August 2008, are designed to make identification of recalled products easier.  While initially presenting a challenge to manufacturers who must create new systems for marking products and tracking label data, lower costs may be realized in the event of a product recall. 

The thought is that the labels will 1) help manufacturers narrow down the scope of a recall to a specific, affected batch of products, 2) help retailers to more easily locate and remove items from store shelves and 3) help consumers to quickly know whether or not their version of a product is included in the recall.

WeMakeItSafer is prepared for the new law and has already added a Search by Tracking Label option to its product Recall Search tool and Inventory Checker systems.  As children’s products manufactured on or after August 14th begin to make their way to store shelves, this tracking information, including the name of the manufacturer, should be all the information you need to know whether the product has been recalled.

A Summary of Requirements and Exceptions for Tracking Labels, CPSIA Section 103a

Commissioner Nord had previously voted to stay product labeling requirements until the CPSC could determine specific rules for labels, while Commissioner Moore voted to keep the August 14th deadline, stating that specifications from the CPSC were not necessary. 

Earlier this week, the CPSC published policy guidance that sides with Moore.  Permanent tracking labels will be required on all products primarily intended for children aged 12 and under, as well as the products’ packaging, beginning August 14, 2009.

Here is a summary of the requirements and exceptions as the law is interpreted by the CPSC:

1)    The domestic manufacturer or importer is responsible for labels.

2)    “Permanent labels” are any distinguishing mark remaining intact throughout the useful life of product (or packaging).

3)    Each manufacturer is to determine the type of marking best suited for their product and packaging.

4)    Consumer must be able to identify:
        a.    Manufacturer or Private Labeler
        b.    Location (City, State, Country) of manufacture¹
        c.    Date product was assembled or packaged
        d.    Cohort information (eg. batch and run number), if applicable

5)    Manufacturer must also be able to determine the exact source of product and components
    
6)    Information need not be together in one location or marking.

7)    Manufacturer can employ a code or number for their markings if consumers can use it access the required information (e.g. online).

8)    Exceptions to labels on packaging include:

        a.    If label on product can be seen through packaging.

9)    Exceptions to labels on products include:

        a.    Products too small to be marked.
        b.    Products sold with multiple pieces (only one piece needs to be marked).
        c.    If product includes storage container for multiple pieces, container and one piece must be marked.
        d.    Items sold through vending machines.
        e.    Marking weakens or damages product.
        f.    Surface impossible to mark.
        g.    Aesthetics of product would be ruined by marks.
        h.    For socks and hosiery, follow Care Label rules.

10)    Penalties for non-compliant companies will be assessed based on a company’s “good-faith effort” to comply, as determined by company records and comparison with the company’s peers.

¹ The CPSC specified that, in case of multiple parts being manufactured on multiple dates, the date of production can identified as a range or as the date of assembly or package.  They did not, however, specify the definition of "location of production" when multiple parts are produced in different locations.

http://www.cpsc.gov/about/cpsia/sect103policy.pdf
http://www.cpsc.gov/about/cpsia/faq/103faq.html

Registration Card Requirements for Durable Infant and Toddler Goods Effectively Postponed for up to Seven Months

Section 104(b) of the Consumer Product Safety Improvement Act (CPSIA of 2008) requires the Consumer Product Safety Commission (CPSC) to set in place a final ruling regarding product registration cards for durable infant and toddler goods by August 14, 2009.  However, the notice of proposed rule making (NPR) published in the federal register today indicates that public comments are not due until September 14, 2009.  Furthermore, the notice proposes that the effective date for registration cards will be 180 days after the final rule is published, rather than the customary 30  to 90 days. 

Assuming the final rule is published 30 days after all comments are received, registration cards may not be required until mid-April 2010. 

For manufacturers and importers who had anticipated having to include cards and develop database tracking systems by fall 2009, this news will come as a welcome, if only temporary, reprieve.  To consumer advocates who had been promised the hope of a more effective product recall system, the news is undoubtedly disappointing.

Whether you agree or disagree with the proposals, now is the time to speak up.  The Commission is seeking comments on everything from whether a definitive list of “durable goods” ought to be made available to whether or not the prepaid return cards should follow a mandatory format.  Above is an image of the proposed cards that the Commission is currently suggesting every manufacturer adopt (click the image to enlarge).

The proposed layout is a perforated card whereby the top half can be kept by the consumers for their records and the bottom half returned to the manufacturer.  The CPSIA mandates that the cards include the model name and number and the manufacture date, which the Commission proposes can be be pre-printed or affixed with a label.

One of the questions raised is whether the proposed design is likely to improve safety.  For example, are consumers likely to keep the stub they tear off and, should they have a safety question several years later, are they likely to refer to the card rather than look up the manufacturer online or in a directory?  If the answer is no, then perhaps the double-sized, perforated card is unnecessary.  Another question the Commission asks is whether or not manufacturers should be allowed to offer registration by email rather than maintaining a webpage where consumers can register their products.

You can submit your comments to the CPSC via the regulations.gov website, here.  Please note that your name, contact information and comments, as submitted, will be printed for public view.

Commissioners Disagree on Product Tracking Labels

It appears that, for the moment, we are at a stand-still with regard to tracking labels for children’s products, which the CPSIA requires as of August 14, 2009.  Earlier, I had predicted a stay as the CPSC works out the details of the label requirements.  As of today, however, a stay remains in limbo as the two-person commission voted 1 – 1 for and against such an action.

Nord, who voted for the stay, argues that there simply is not enough time for manufacturers to develop and implement a labeling system.  She further implies that manufacturers need guidance from the CPSC on exactly what is required before they can comply, and that more time is needed for the CPSC to work out those details as a “one-size-fits-all” system will not work. 

Moore counters by stating that, “Unlike other provisions of the CPSIA, section 103 does not require the Commission to adopt regulations as an aid to compliance.”  He points out that the new law does not stipulate, for example, that the labels be a certain size or in a particular location on the product and suggests that this serves as Congress’ understanding that one-size does not fit all. 

Should we land on Nord’s side of the fence, manufacturers of all sizes will be relieved of the labeling requirement for another year.  Her hope is that, by then, there will be solid guidelines for a more standardized labeling system, possibly a globally accepted one.  For large manufacturers for whom placing thousands of labels will require costly operations, design and manufacturing changes, a stay could save millions of dollars in future reworking.

By contrast, should the labeling requirements be enforced on schedule, as supported by Moore, companies will be allowed to implement any reasonable system that works with their particular product, keeping in mind the purpose of the statute.  Especially with regard to smaller businesses, this will allow flexibility in developing cost-effective labeling methods.  Although Moore makes room for developing standards in the future, he says that if that becomes necessary, it would be done so over time.

Here is Section 103 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) in its entirety: 

SEC. 103. TRACKING LABELS FOR CHILDREN’S PRODUCTS.

(a) IN GENERAL.—Section 14(a) (15 U.S.C. 2063(a)), as amended
by section 102 of this Act, is further amended by adding at the end the following:

‘‘(5) Effective 1 year after the date of enactment of the Consumer Product Safety Improvement Act of 2008, the manufacturer of a children’s product shall place permanent, distinguishing marks
on the product and its packaging, to the extent practicable, that will enable—

‘‘(A) the manufacturer to ascertain the location and date of production of the product, cohort information (including the batch, run number, or other identifying characteristic), and
any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks; and

‘‘(B) the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).’’.

(b) LABEL INFORMATION.—Section 14(c) (15 U.S.C. 2063(c)) is amended by redesignating paragraphs (2) and (3) as paragraphs (3) and (4) and by inserting after paragraph (1) the following:

‘‘(2) The cohort information (including the batch, run number, or other identifying characteristic) of the product.’’.

(c) ADVERTISING, LABELING, AND PACKAGING REPRESENTATION.—
Section 14 (15 U.S.C. 2063) is further amended by adding at the end the following:

‘‘(d) REQUIREMENT FOR ADVERTISEMENTS.—No advertisement for a consumer product or label or packaging of such product may contain a reference to a consumer product safety rule or a voluntary
consumer product safety standard unless such product conforms with the applicable safety requirements of such rule or standard.’’.

You can read the entire Section 2063 of the the CPSA, which this section of the CPSIA amends, in the resources section of this blog.

CPSIA Rulings – A Long Road Still Ahead

 

For as many rulings as have been handed down by the Consumer Product Safety Commission (CPSC) over the last seven months since the Consumer Product Safety Improvement Act (CPSIA of 2008) was enacted, there are as many still to come.  From the content of mandatory product recall announcements to the specifics surrounding registration cards and tracking labels, the extent of the unknowns that linger, as effective dates draw nearer, is as daunting as ever. 

The CPSC still has a huge task ahead.  At a point when, theoretically, about half the rulings should be already worked out, it seems unlikely that the remaining deadlines can be met.  I would not be surprised if we see more “grace periods” or official stays similar to the one we saw in January for certain certification and third-party testing requirements. 

One such case where a stay is possible is with regard to permanent labels for children’s products (CPSIA Section 103).  The CPSC is currently seeking advice as to whether or not to work toward a universal, international labeling and tracking system.  While a global system may be a good move, manufacturers of children's products sold in the US are required by the CPSIA to begin using permanent labels on products and packageing by August 14th of this year.  Although talks are already underway, with a meeting being held this week (see below), given that public comments are not even due until April 27, 2009, my guess is that the effective date for tracking labels will need to be pushed out. 

In the meantime, manufacturers struggle with whether to take steps toward planning the redesign of their production lines and business processes to accommodate the new labeling laws and internal tracking that will be needed – a nontrivial task to say the least – or to wait until they know exactly what the requirements will be.

Either way, there is something manufacturers and others can do besides sit and wait for the CPSC to resolve the ambiguities of the CPSIA.  That is, participate in public meetings and comment requests.  Now is the best time to influence the final rulings on these laws.  Once they become official regulations, it is incredibly difficult to get them reversed.  

Opportunities to make your voice heard for this week are listed below.  You can find more information regarding location, times and links to official announcements on the Consumer Product Safety Information Calendar .  By clicking on the event title you will see additional details as well as a link to copy the event to your own calendar.

Monday, March 16 – Thursday March 19
CPSC Mtg re: ASTM F15 

Tuesday, March 17
CPSC Mtg re: Lead Testing and Tracking Labels for Jewelry

Wednesday, March 18 – Thursday, March 19
CPSC Mtg re: Barrier Fabrics

Wednesday, March 18
Product Labeling Mtg w/ CPSC re: a Proposed Global Traceability

Thursday, March 19
CPSC Mtg re: Certification Requirements, Specialty Products

All Children’s Products Soon to Require Permanent Identification Labels

Section 103 of the Consumer Product Safety Improvement Act (CPSIA), “Tracking Labels for Children’s Products,” amends US laws regarding Product Certification and Labeling (15 U.S.C. 2063).  (A redlined version of Section 2063, showing all changes imposed by the CPSIA is available here.)

As amended, beginning August 14, 2009, product labeling laws will require manufacturers of all children’s products to place permanent identification labels on both the packaging and the actual product, “to the extent practicable.” The new labels are to include information that will allow a consumer to identify the name of the manufacturer or private labeler, when and where the product was made, and any additional information necessary to distinguish the product from a similar item, such as the number of a production run.

As was the case before the CPSIA passed, the Consumer Product Safety Commission (CPSC) has the right to require private labelers to also include information on product labels that will enable a retailer to identify and, upon request, reveal to consumers the actual manufacturer.  Additionally, under section 2063, the CPSC maintains the authority to require certain products to include labels that specify which safety standards apply to the product and a certification that the product does in fact comply. Bicycle helmets are a good example of where the CPSC has exercised its authority regarding mandatory labels (image here).

Section 103 is one of the shortest sections of the CPSIA, which may actually make it one of the more challenging sections for the CPSC, as Congress specified few details regarding implementation of the new requirements.  Phrases like “to the extent practicable” are not defined, and the types of “cohort” and “other information” that ought to be included on the labels are vague.

Recognizing the challenge before them, the CPSC has issued a request for comments and information on just about every aspect of the new labeling laws, from what should be considered practicable to whether or not the US should work to help develop and adopt a uniform, international product-labeling system.  Addressing the latter, the CPSC directs interested persons to:  “Feasibility Study: Postmanufacturing Traceability System between the PRC and the EU, November 2008,” though the CPSC is careful to note that it does not necessarily agree with or endorse the study.

Comments are due to the CPSC by April 27, 2009. They can be emailed to: TrackingLabels@cpsc.gov .   More details on the specific information sought and how to fax, phone or mail comments can be found here.

The CPSC also announced today that a meeting will be held on March 18, 2009 to discuss a proposed action plan for the development of a global traceability system.  More information about the meeting can be found on the Consumer Product Safety Information Calendar.