No Stay of Enforcement for CPSIA Tracking Labels

Consumer Products Safety Commission (CPSC) announced the results of the commissioners’ vote on a request by the National Association of Manufacturers for an emergency stay of enforcement of the tracking label requirement in Section 103 of the CPSIA. (The full signing statements are available at here.)  The stay was not granted, due to a split vote -- Acting Chairman Nord voted to grant the request for a stay and Commissioner Moore voted to deny the request.  Accordingly, tracking labels will be required on children’s products manufactured on or after August 14, 2009.  

However, both commissioners issued signing statements indicating that CPSC does not plan to take a hard-line approach in enforcing the requirement.  Rather, the commissioners anticipate that companies that sincerely attempt to comply with the requirement will not be punished if they miss the mark.  Acting Chairman Nord anticipates that the Commission will issue guidance “that will assure companies that they should reasonably exercise the judgment anticipated by the loose language of the statute.”  Commissioner Moore also tried to reassure companies that CPSC will be reasonable in enforcing the requirement:  “ ‘Guesses’ . . . are not going to be ‘wrong’ as long as they have the information required by the statute and do not take a cavalier approach to the ‘to the extent practicable’ language in the statute.  If we find manufacturers who have diligently tried to comply with the statute, but miss the mark on devising a complying tracking label, we will work with them (and learn from them) to make their marks comply with the law.  This will be a learning process for all of us and not an excuse to punish an unwitting mistake.”

In addition, both commissioners recognize that a “one size fits all” approach with respect to tracking labels may not be possible, and indicate that CPSC will allow companies to develop their own compliant labels.  Acting Chairman Nord states that “companies need to be able to develop labels that work for their individual products and situations, yet meet the needs of the agency to increase recall effectiveness.”  Commissioner Moore notes that “[a]s long as the tracking information required by the law is ascertainable from that tracking information, there is no need for the Commission to dictate a particular format.”  Commissioner Moore further recognizes that, while some companies may be able to use or easily adapt their existing labels, others such as small businesses will need help in devising a way to meet the requirement.  Both commissioners anticipate that CPSC will issue guidance to help companies meet the requirement, and that such guidance will not be the final word on the subject.

The take-away message from these statements seems to be that while CPSC will enforce the tracking label requirement for children’s products, CPSC will likely give companies some latitude if they demonstrate a good faith effort to comply. 

 - Eric Rubel