On November 5, 2009, the U.S. Consumer Product Safety Commission (CPSC) published a draft statement of policy providing guidance on the testing and certification requirements of section 102 of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The draft has been presented to the commissioners for ballot vote, and if approved will be published as a formal statement of policy.
Manufacturers and importers -- who have been struggling to comply with CPSIA requirements in the absence of regulations or sufficient guidance from CPSC -- will likely welcome this interim guidance if approved by the Commission.
Background: CPSIA Section 102
Enacted on August 14, 2008, in the wake of several high-profile product recalls, the CPSIA imposes new product standards, particularly for children’s products (consumer products intended primarily for those 12 years and younger). The CPSIA also imposes new requirements for compliance testing of products subject to a consumer product safety rule under the Consumer Product Safety Act (CPSA) or a similar rule, standard, ban, or regulation under any other Act enforced by CPSC, and for certifying such products’ compliance before they are introduced into commerce.
Specifically, (1) for children’s products, certification must be based on testing by a CPSC-recognized third-party conformity assessment body (“third party laboratory”), and additional third-party laboratory testing periodically and when there has been a material change in the product’s design or manufacturing process, including the sourcing of component parts; and (2) for products other than children’s products, a “general conformity” certification must be based on a test of each product or upon a “reasonable testing program.”
On February 9, 2009, CPSC stayed the applicability of the certification requirements imposed by the CPSIA as to most standards, but products nevertheless must comply with applicable standards. The Commission has not yet announced when that stay will be lifted. However, the draft Guidance clarifies that, for standards covered by the stay, certification will be required only for products manufactured after the stay is lifted.
Implementation Questions
The CPSIA requirements for testing and certification fall on manufacturers (defined to include importers of record), who have struggled to interpret CPSIA requirements and develop compliance programs while awaiting the promulgation of rules or issuance of guidance. The uncertainty has also hampered efforts by retailers to help ensure that the products that they sell and the certificates they receive from suppliers comply with the law. Open issues have included the following questions:
- What constitutes a “reasonable testing program” to support a general conformity certification under CPSIA Section 102?
- Which specific rules are “similar” to consumer product safety rules, and thus require a general conformity certification?
- Will the CPSC require a general conformity certification showing that a product is not banned?
- What are the requirements for initial certification of children’s products, and when do those requirements take effect?
- After a children’s product has initially been tested for certification, what ongoing testing is required?
- Will the same frequency of periodic testing be required for small volume producers of children’s products?
- How many samples of a children’s product or a component of a children’s product should be tested?
- Will CPSC accept certifications based on testing of component parts of children’s products or must testing be done on the final product?
The Draft Guidance
The draft Guidance addresses, at least in part, each of the questions above. For example:
- The draft lists in an appendix all standards, bans and rules applicable to non-children’s products for which a general conformity certification of compliance (GCC) is required. Notably, although the draft Guidance states that standards include requirements for warnings and instructions, it does not require a GCC to show that a hazardous substance is labeled in accordance with the Federal Hazardous Substances Act. Similarly, the staff proposes not to require a GCC to confirm that products contain child-resistant packaging as required by the Poison Prevention Packaging Act (PPPA) -- an enormous help to manufacturers of drugs, cosmetics and other household products covered by the PPPA.
- The draft Guidance indicates that CPSC will accept testing of component parts and raw materials, with certain limitations aimed at ensuring that the parts and materials that go into the product are materially the same as those tested. However, the draft also notes that CPSC is considering a separate enforcement policy to address component testing to show compliance with lead paint and content limits.
- In a FAQ, CPSC has added a new interpretation regarding how a certificate issuer can make a certificate “available” to a retailer. Specifically, if the manufacturer puts a telephone number on a product so that a retailer can call to request a certificate, CPSC is requiring that the “number has to be answerable at all times.” CPSC does not provide a rationale for this requirement, nor is it evident why someone would need to be able to request a certificate 24/7. Further, the draft does not indicate whether “answerable” means a human being must answer, or whether a messaging system is acceptable.
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The CPSC’s draft Guidance -- assuming it is approved by the Commission -- will provide some much needed clarity pending CPSC’s adoption of regulations that implement Section 102. The draft Guidance leaves some questions unanswered, however, so stay tuned for further information.
- Eric Rubel and Jennifer Karmonick
