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The Comprehensive Consumer Product Safety
Improvement Act Of 2008
:
New Testing And Certification Requirements For Imported Children’s Products

October 30, 2008

On August 14, 2008, the President signed into law H.R. 4040—the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which amends a number of existing product safety laws, including the Consumer Product Safety Act, the Federal Hazardous Substances Act, and the Flammable Fabrics Act.

Details of CPSIA, as well as progress on implementation can be found at: http://www.cpsc.gov/en/Business--Manufacturing/Import-Safety/.

Key Provisions of the CPSIA

The Act imposes a number of new requirements upon importers and manufacturers, yet many of the details remain unclear at this time. Key elements of the Act, by section, include:

101

Children’s Products Containing Lead; Lead Paint Rule

102

Mandatory Third Party Testing for Certain Children's Products

103

Tracking Labels for Children's Products

104

Standards and Consumer Registration of Durable Nursery Products

105

Labeling Requirement for Advertising Toys and Games

215

Inspection of Proprietary Laboratories; Identification of Supply Chain

222

Import Safety Management and Interagency Cooperation

232

All-Terrain Vehicle Standard

Perhaps most significant for importers and others in the trade community are new testing, certification and labeling requirements for children’s products that will be phased in over a period of time, beginning in November 2008. There are significant monetary penalties for non-compliance.

The legislation was an agenda item at the August 7, 2008, trade-CBP COAC meeting in Seattle and more recently CPSC has been conferring with CBP and the public regarding implementation of the new law as the phase-in dates near.

Highlights And Phase-In Dates For The New Law

General Certification Requirements Broadened (Section 102)

The new legislation extends a general certification requirement for all consumer products that are subject to any rule, standard, ban, or regulation under the Consumer Product Safety Act, as well as any other act enforced or administered by the CPSC.

Every manufacturer of a product that is subject to a consumer product safety rule will be required to certify, based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product under any provision enforced by the Commission.

An example of a Certificate of Compliance and instructions on completion can be found at: http://www.cpsc.gov/about/cpsia/faq/elecertfaq.pdf

This new general certification requirement applies to products manufactured on or after November 12, 2008 (the earliest phase-in date for any of the new requirements).

There are a number of unresolved issues regarding the general certification procedure, particularly with respect to textile and apparel products that may be flammable. For example, the new statute is unclear as to what must be tested (both components and finished products?), how the certificates are to be made available, and how they are to be retained. CPSC has scheduled a public information session and webcast for November 6, 2008, and hopefully these issues can be resolved prior to the phase-in date.

Mandatory Third-Party Testing And Safety Certificates Required For Certain Children’s Products (Section 102)

Section 102 also imposes third-party testing requirements for all consumer products “primarily intended” for children 12 years of age or younger.

The third party testing requirements for children’s products will apply to any product manufactured 90 days after the publication by CPSC of the requirements for accreditation of third party assessment bodies with a children’s product safety rule related to the following:

CPSC Topic

CPSC Publishes Accreditation
Procedure

Third-Party Testing Required

Lead Paint

September 22, 2008

December 22, 2008

Cribs And Pacifiers

October 2008

January 2009

Small Parts

November 2008

February 2009

Metal Jewelry

December 2008

March 2009

Baby Bouncers, Walkers And Jumpers

March 2009

June 2009

300 ppm Lead Content

May 2009

August 2009

CPSC Children’s Product Safety Rules

June 2009

September 2009

Merchandise without the above-required general and special children’s product certificates will be considered prohibited and not permitted entry into the U.S.

The certificate must accompany the product or product shipment and must be made available to CPSC and CBP officials upon request. (Just how the certificates must be “made available” remains an open issue.) Presumably, at some date in the future the certificate can be submitted by way of ACE/ITDS.

Failure to provide the requisite certificate or the furnishing of a false certificate may result in imposition of civil and/or criminal sanctions against the manufacturer or private labeler, and the merchandise can be seized and destroyed, unless re-exportation is permitted.

Tracking Labels For Children’s Products (Section 103)

This provision of the new law requires manufacturers to place a “tracking label” or other permanent distinguishing mark on any consumer product primarily intended for children 12 years old and younger.

The tracking label must contain the source of the product, the date of manufacture and additional data regarding the manufacturing process, such as the batch or run number.

The requirement extends to all children’s products, including those made abroad and imported into the U.S. It is anticipated that there will be some problems with enforcement of this provision, as Congress added the language “to the extent practicable,” recognizing that it may be difficult or impossible to affix tracking labels to small toys or similar products that are shipped without individual packaging.

The effective date for affixing the tracking labels is August 14, 2009, and the label would be required on any product imported into the U.S. after that date.

Labeling Requirement For Advertising Toys And Games (Section 105)

The CPSIA amends the Federal Hazardous Substances Act to impose yet another labeling requirement for children’s products.

The new requirement is that any advertisement by a retailer, manufacturer, importer, distributor, or private labeler (including advertisements on Internet websites or in catalogues or other printed materials) that provides a direct means for the purchase or order of a product for which a cautionary statement is required shall include the appropriate cautionary statement displayed on or immediately adjacent to that advertisement. Retailers will have a duty to ask importers and the other parties in the chain if such labels are required for a particular product.

There are two effective dates for this provision – for advertisements on Internet websites, the effective date is December 12, 2008.

For catalogues and other printed advertising materials, the date is February 10, 2009.

Prohibition Of Sale Of Certain Products Containing Specified Phthalates (Section 108)

This provision makes it unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the U.S., any children’s toy or child care article that contains concentrations of more than 0.1 % of DINP, DIDP, or DnOP.

The effective date of this new prohibition is February 10, 2009.

Inspection Of Proprietary Laboratories, Identification Of Supply Chain, And Recordkeeping Requirements (Section 215)

The new legislation clarifies CPSC’s authority to inspect labs that will be testing children’s products to support manufacturer certification of those products.

In addition, there will be certain recordkeeping requirements for every importer, retailer or distributor of a consumer product over which the CPSC has jurisdiction. Those parties will now be required to identify the manufacturer of the product by name and address, or such other identifying information as the official may request, to the extent such data is known or can readily be determined by the importer, retailer or distributor.

 Penalties (Section 217)   

Monetary penalties and criminal sanctions are increased significantly under the new law.

Civil Penalties – What were formerly $5,000 penalties for violations of the Consumer Product Safety Act are increased to $100,000, and the former $1,250,000 cap on civil penalties is increased to $15,000,000.

Penalties for violations of the Federal Hazardous Substances Act that were formerly $5,000 are enhanced to $100,000, and the $1,250,000 cap on civil penalties is increased to $15,000,000. The same hefty penalty increases will apply to the Flammable Fabrics Act.

CPSC is scheduled to issue final regulations providing its interpretation of the “penalty factors” to be considered in assessing and enforcing penalties under these three Acts no later than August 14, 2009.

The next CPSC public information session and webcast is set for November 6, 2008. In the meantime, for more information regarding the matters discussed above, please contact George Tuttle, III at (415) 986-8780 or geo@tuttlelaw.com.

George R. Tuttle, III is an attorney with the Law Offices of George R. Tuttle in San Francisco.

 

 

The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.

Copyright 2008 by Tuttle Law Offices.

All rights reserved. Information has been obtained from sources believed to be reliable. However, because of the possibility of human or mechanical error by our offices or by others, we do not guarantee the accuracy, adequacy, or completeness of any information and are not responsible for any errors, omissions, or for the results obtained from the use of such information.

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