Consumer Product Safety Improvement Act: Compliance Requirements and Clarifications
Concerns over the safety of imports in the aftermath of multiple high-profile recalls of consumer goods including children’s toys and other products the United States Consumer Product Safety Commission (“CPSC”) came under heavy fire in 2008.
A broad and sweeping law was passed to strengthen consumer product safety rules, overhaul the CPSC and provide it more funding. The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) was passed on August 14, 2008.
Substantial confusion, unclear about how to comply with the new law, as a result, the CPSC has issued several clarifications on the law.
The major highlights of the CPSIA include:
- Stricter lead limits in children’s products;
- Ban on phthalates in children’s toys and child care articles;
- Lab testing of certain children’s products;
- Certification of consumer products by manufacturer/importer; and
- Regulation of imports and exports of consumer products.
Major Highlights of the CPSIA
Lead Limits and Deadlines. A major component of the CPSIA is to impose stricter limits on lead in children’s products.
Children 12 years of age or younger
Deadline set for February 10, 2009 is designed or intended primarily for children 12 and younger products may not contain more than 600 parts per million (“ppm”) of lead an accredited lab must test products which are subject to the ppm lead limits.
The 600 ppm limit applies to all existing products, including those in inventory or on retail shelves. Products having above this lead limit cannot be sold any non-compliant product must be destroyed.
As of August 14, 2009, products designed or intended primarily for children 12 and younger may not contain more than 300 parts per million of lead content, and may not contain more than 90 parts per million of lead in paint.
Two years later, as of August 14, 2001, the lead limits increase yet again. Products designed or intended primarily for children 12 and younger may not contain more than 100 parts per million of lead, unless the CPSC determines that is not technologically feasible.
The lead limits apply to the following types of products intended for use by a child: shoes, sporting goods, children’s jewelry (rings, bracelets, and necklaces), decorative room accessories, key chains, painting easels and clothing. Other examples of products to which the lead limits apply include children’s cassettes and CD’s and game boards and game pieces.
Lead limits also apply to some printed materials.
CPSIA imposes a ban on phthalates in children’s toys and child care articles. “Children’s toys” are defined as products designed or intended by the manufacturer for children 12 and younger for use by the child when the child plays.
As of February 10, 2009, children’s toys and child care articles may not contain more than 0.1% concentration of certain phthalates (DEHP, DBP and BBP). Children’s toys that are “mouthable” or child care articles may not contain more than 0.1% concentration of other certain phthalates (DINP, DIDP, and DnOP). An independent and accredited lab must test products which are subject to the phthalate limits.
The phthalates prohibitions are similarly retroactive. Although the CPSC, in an advisory opinion, initially concluded that the phthalates limits did not apply to existing inventory and were not retroactive, it received extensive criticism and a lawsuit was filed against it seeking retroactive application of the ban.
The phthalates ban applies to pool toys, beach balls, blow up rafts and inner tubes designed or intended for children 12 years of age or younger.
Toys vs Children’s products vs Sporting goods
Requires Lab Testing of Certain Children’s Products. Manufacturers must have certain children’s products tested to assess conformity with one or more of the children’s product safety rules.
Requires Product Certification. The new certification requirements apply to all products subject to CPSC standards, bans, rules or regulations. This provision is not limited to children’s products. Domestic manufacturers or importers must certify compliance of products which are distributed into domestic commerce and which are subject to an existing CPSC standard, ban, rule or regulation. The domestic manufacturer or importer is charged with the duty of issuing a General Conformity Certificate certifying that the product complies with all applicable requirements and standards. Certification must be based on a test of each product or on a reasonable testing program. Certification is mandatory and is required for affected consumer products as they are phased in, according to the CPSC’s schedule.
The General Conformity Certificate must contain particular identified items and must accompany the product through the chain of distribution. The General Conformity Certificate must accompany each product and/or shipment of products if all the products are covered by the same certificate. If imported and a General Conformity Certificate is required the product will not be allowed to enter the U.S. without a certificate.
The General Conformity Certificate does not have to be filed with the government. The importer or domestic manufacturer is required to “furnish” the General Conformity Certificate to its distributors and retailers.
Other Provisions Of The CPSIA
Expands Recall Authority. The CPSC now has the power to order manufacturers, distributors and retailers to stop distributing a product that it believes violates a product safety rule.
Requires Identification of Complete Supply Chain on Demand. The complete supply chain must be identified upon CPSC request. Manufacturers must identify each retailer or distributor to which they directly supplied a consumer product. Importers, retailers and distributors must identify the manufacturers of their consumer products.
Increases Civil and Criminal Penalties. New civil and criminal penalties take effect on August 14, 2009 or the date the CPSC issues a final regulation interpreting the penalty factors, whichever is earlier. Civil penalties increase to $100,000 per violation, with a maximum of $15 million for a series of related violations. Criminal penalties for knowing and willful violations of consumer product safety laws also increase.
Creates Right of Action by State Attorneys General. The state may seek injunctive relief to stop the manufacture and sale of products.
Establishes Consumer Product Safety Information Database. The CPSC will develop and maintain a publicly-accessible and searchable database.
Recap of Conference Call
- The main topic of discussion for this call is the classification of our products as “sporting goods”. Then we discussed “play value” and how do we better measure play value in our determination of a toy.
- A distinction between towables and non-towables, towable items are active sporting goods products. Non-towables then become an issue, of play value, whether they are intended for children, etc.,
Four factors determining if a product is a toy (or children’s toy) are:
1. statement by the manufacturer about the intended use of the product (i.e. if it is targeted for children 12 and under only),
2. whether the product is represented in its packaging, display, promotion or advertising as for children 12 and under.
3. whether the product is commonly recognized by consumers as intended for children 12 and under, and
4. the Age Determination guidelines issued by the CPSC in 2002 or any successor guidelines. A word document “Template Product v. Toy Analysis is attached for your review. Using this “test” on each product will show your interest in properly classifying products and may help protect you legally, if you are ever asked for the reason or logic for how a product was classified. Documentation of your logic and decision making is important.
Family products are generally exempt from the definition as a toy if they are not “primarily intended for children under 12”.
All towable are exempt from the phthalates rule since they are not toys
Snow tubes and/or sleds are considered toys and should be subject to the phthalate ban. (These products can be used on the street, backyard, parks, etc. that do not require adult supervision, and have a certain degree of “Play value”).
16CFR1303 ban on lead in paint/coatings applies to ALL consumer products, then most every one of our industry’s products would require a GCC for each SKU stating that it complies with this lead in paint standard.
Gary suggested that we craft a ‘Policy Statement’, with his assistance, that would be used by each individual manufacturer to send to the retailers. His key point was to be consistent within our industry – we will need to stress this to all of the members, not only for the Policy Statement, but also other factors such as warning labels, GCC’s, etc. Consistency is important to Manufacturers and retailers alike so we also do not have to deal with conflicting information and procedures. This is a real benefit of the WSIA pulling together as a group to deal with this issue.
We also discussed related legislation such as California’s Proposition 65 and AB 1108 that have some impact on our products. My understanding was that we need to add the warning label on packaging and products concerning chemicals that are known to cause cancer (or language to that effect).
The specific language for the warning should be as follows:
“Warning: This product contains chemicals known to the State of California to cause cancer, birth defects or other reproductive harm.”
Regarding GCC’s all consumer products made on or after November 12, 2008, subject to an effective standard, ban, rule, or regulation under the jurisdiction of the CPSC have to be self-certified in a General Conformity Certification. Only children’s products need to be tested and certified by a 3rd party accredited laboratory when the standard becomes effective. So, for instance, the only such standard, ban, rule, or regulation that probably applies to Association members’ products that needs to be certified by a 3rd party accredited lab is for lead-in-paint. 3rd party testing for lead content and phthalates has been stayed until at least February10, 2010. However, the CPSC has said that manufacturers must still self-certify compliance with respect to the lead content (600 PPM) and phthalate limits. What this means is that all Association members MUST have GCC’s for all new shipment of goods. There is no getting around it, and it is the only way to assure that a company can keep its product moving. *Tracking labels must be used on all children’s products (this is not based on lead or phthalates).
Regarding internal reasonable testing programs, if Association members do not have them in place then such programs need to be developed.