Earlier this year CPSC stayed enforcement of the CPSIA testing and certification requirements for most but not all standards. Today, CPSC announced decisions to lift the stay of enforcement on testing and certification requirements as to certain standards and to keep the stay in place as to other standards. (A link to CPSC’s press release can be found here.
Changes to the stay are identified below, grouped by when the stay will be lifted as to particular standards. However, remember that products must comply with all applicable standards, even if the testing and certification requirements have been stayed.
Standards For Which Stay Is To Be Lifted February 10, 2010
“Children's products” (as defined in the CPSIA) that are subject to the following standards, and are manufactured after February 10, 2010, will require a certificate of compliance based upon testing by an accredited third-party lab:
- Bicycle helmets (16 CFR part 1203);
- Bunk beds (16 CFR part 1513);
- Rattles (16 CFR parts 1510, 1500.18(a)(15) and 1500.86(a)(1 )); and
- Dive sticks (16 CFR parts 1500.18(a)(9) and I500.86(a)(7) and (a)(8)).
Non-children’s products that are subject to the following standards, and are manufactured after February 10, 2010, will require a general conformity certificate (“GCC”) based upon a reasonable testing program:
- Ban on Lead-In-Paint in paint and on furniture (16 CFR part 1303);
- Requirements for child-resistance on portable gas containers (Section 2 of the Children's Gasoline Burn Prevention Act);
- Regulations for special packaging required under the Poison Prevention Packaging Act (16 CFR part 1700);
- Ban on extremely flammable contact adhesives (16 CFR part 1302);
- Ban of unstable refuse bins (16 CFR part 1301); and
- Standard for refrigerator door latches (16 CFR part 1750).
Bicycles: Stay To Be Lifted May 17, 2010
Bicycles manufactured on or after May 17, 2010 that are subject to 16 CFR part 1512 will require (1) a certificate of compliance based upon testing by an accredited third-party lab, if the bicycles are children’s products, or (2) a GCC based upon a reasonable testing program, if the bicycles are not children’s products. CPSC has determined that there is currently insufficient laboratory capacity for third-party testing of bicycles, despite the requirements for accreditation having been issued on September 2, 2009, and thus extended the stay.
Lead Substrate: Stay To Be Lifted February 10, 2011
CPSC has extended the stay with respect to the lead substrate standard until February 10, 2011.
Standards For Which Stay Is Continuing Until Further Notice
Due to pending rulemaking proceedings, lack of lab accreditation requirements, and other issues, CPSC has decided to continue the stay of enforcement for consumer products or children's products listed below:
- Carpets and rugs (16 CFR parts 1630 and 1631, except that the continuation of the stay of enforcement does not extend to guarantees under the Flammable Fabrics Act);
- Vinyl plastic film (16 CFR part 1611, except that the continuation of the stay of enforcement does not extend to guarantees under the Flammable Fabrics Act ));
- Wearing apparel (16 CFR part 1610, except that the continuation of the stay of enforcement does not extend to guarantees under the Flammable Fabrics Act ));
- Caps and toy guns (16 CFR part 1500.18(a)(5));
- Phthalates (section 108 of the CPSIA);
- ASTM F963 (Consumer Safety Specifications for Toy Safety) (section 106 of the CPSIA);
- Clacker balls (16 CFR parts 1500.18(a)(7), 1500.86(a)(5));
- Baby walkers (On September 3, 2009 (74 FR 45704), the Commission issued a proposed rule pertaining to baby walker standards);
- Bath seats (On September 3, 2009 (74 FR 45719), the Commission issued a proposed rule pertaining to bath seats);
- Children's sleepwear (16 CFR parts 1615 and 1616);
- Electronic toys (16 CFR parts 1500.18(b) and 1505); and
- Durable infant products (section 104 of the CPSIA).
Standards For Which Stay Is To Be Lifted 90 Days After CPSC Issues Notices of Accreditation
Children's products that are subject to the following standards, and are manufactured more than 90 days after third-party lab accreditation requirements are issued, will require a certificate of compliance based upon testing by an accredited third-party lab:
- Youth-sized ATVs
- Mattresses (primarily intended for use in cribs or exclusively in children's sized beds)
Standards For Which Certification Is Required Even Now
Note that the stay never applied to the following standards:
- products for which testing and certification had been required prior to enactment of the CPSIA (e.g. bike helmets, lawnmowers, and lighters);
- requirements applicable to children’s products for which CPSC had already published accreditation requirements for third-party testing (lead paint, full size and non-full size cribs, pacifiers, small parts, and metal components of children’s metal jewelry);
- any and all certifications expressly required by CPSC regulations (e.g. mattress flammability; candles with metal-cored wicks);
- certifications required under the Pool and Spa Safety Act;
- certifications for ATVs that were added by the CPSIA; and
- any voluntary guarantees provided for in the Flammable Fabrics Act.
Thus, certification based on third-party testing by an accredited lab is required even now for children’s products subject to the following standards:
- Lead Paint, 16 CFR Part 1303 (effective for products manufactured after 12/21/2008)
- Full-Size Cribs, 16 CFR Part 1508 (effective for products manufactured after 1/20/2009)
- Non Full-Size Cribs, 16 CFR Part 1509 (effective for products manufactured after 1/20/2009)
- Pacifiers, 16 CFR Part 1511 (effective for products manufactured after 1/20/2009)
- Small Parts Rule, 16 CFR Part 1501 (effective for products manufactured after 2/15/2009)
- Lead Content in Children’s Metal Jewelry as Established by the CPSIA (effective for products manufactured after 8/10/2009)
Certification Not Required for FHSA Labeling
Finally, CPSC has concluded that certifications of conformity are not required for labeling requirements under the Federal Hazardous Substances Act. CPSC reasoned that those requirements are not sufficiently similar to consumer products safety standards or bans to warrant certification.
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Please note that, this post is intended to be a general summary of the law and does not constitute legal advice.
- Eric Rubel and Jennifer Karmonick
