Capitol Comments

The CPSIA Continues To Lurch Forward

By Jessica Franken, INDAu2008Director of Government Affairs | March 16, 2011

The Consumer Product Safety Improvement Act of 2008 (CPSIA): anyone who has followed its discombobulated implementation or felt the effects of its frequently unrealistic and overly burdensome requirements probably isn't surprised to learn that it made several appearances in House Oversight Chairman Darrell Issa's nearly 2000-page report detailing government regulations that are harming U.S. businesses.

The good news for manufacturers is that there is a growing awareness about the ill-effects of over-regulation and with that a growing feeling that the CPSIA is running wild and needs to be tamed.The not-so good news, however, is that until legislative reform actually happens (and who knows when that will be), the CPSIA is continuing its dastardly race forward. Here's a summary of some of the more recent developments and what you need to know.

CPSIA: It's Not Just for Children's Products
Although most know that the CPSIA created new, stringent limits for lead and phthalate content in children's products (those intended for children 12 and under), what they don't realize is that it also contains provisions that affect non-children's products as well. One of those, the anticipated March 11 launch of an online product safety incident database, has received a fair amount of press coverage. However, a number of other far-reaching requirements are moving under the radar and threatening to catch manufacturers unawares.

For example, the Consumer Product Safety Commission recently lifted the stay of enforcement on certification for compliance with flammability standards for certain adult products—vinyl plastic film, clothing textiles, carpets and rugs, which went into effect January 26. This means that manufacturers, private labelers and importers of these goods must now include with each product or shipment a "General Certificate of Conformity" (GCC) that certifies compliance with the relevant standards (for carpets and rugs, 16 CFR parts 1630 and 1631; for vinyl plastic films, 16 CFR part 1611; and for wearing apparel, 16 CFR part 1610) and identifies the manufacturer/importer/private la­beler name, mailing address, phone number, contact information, date and time of manufacture, and date and place where it was tested.Failure to meet these stipulations could mean imposition of civil penalties of up to $100,000 per violation. To learn more, visit: www.cpsc.gov/about/cpsia/smbus/SBOLiftStayCert16CFR1610.pdf

Meanwhile, any day now, the commission is expected to finalize a "Testing and Labeling" rule that will require all consumer products (children's and otherwise) subject to product safety rules to be certified for compliance based on CPSC-prescribed testing protocols.

Specifically, Section 102 of the CPSIA requires private labelers and makers of non-children's products t subject to CPSC rules, standards or bans to issue a GCC based either on testing of each individual product or the findings of a "reasonable testing plan" as defined by the agency. According to the proposed rule, a "reasonable testing plan" would contain the following elements: 1) a product spe­cification that provides a detailed description of the item and applicable CPSC rules; 2) certification tests on samples proving that the design is capable of meeting the relevant requirements; 3) a production testing plan for each manufacturing site that specifies testing intervals to ensure samples are representative of all products;4) a remedial action plan to address deviations or changes in the product that cause non-compliance, and 5) an established system of recordkeeping that documents these various elements for the duration or production/importation, plus five years.

The proposed protocols for testing and certifying children's products are similar, with the key difference being that the testing must be done by an accredited third party conformity assessment body.To establish the initial certification, manufacturers must submit a sufficient number of samples to a third party test lab to "provide a high degree of assurance that the tests conducted for certification purposes accurately demonstrate the ability of the children's product to meet all applicable children's product safety rules."Companies making or importing more than 10,000 units will need to re-test products annually basis, unless they maintain a "reasonable testing program," in which case, tests need to be run semi-annually. Children's products makers must also maintain a remedial action plan for samples that fail and perform new certification testing for any products that have undergone"any change in the product's design, manufacturing process or sourcing of component parts, that a manufacturer using due care knows, or should know, could affect the product's ability to comply with applicable rules, bans, standards, or regulations." Children's product manufacturers would also be required to establish formal policies aimed at preventing"undue influence" on a third party testing body and conduct annual personnel training on these guidelines. Again, companies would have to maintain documentation detailing these initiatives for the duration of production/importation, plus five years.

Confused? Overwhelmed? Head about to explode? You're not the only one. Leave it to the feds to take the fun out of toys.Industry critics say the proposed testing protocols will impose layers of needless, costly and confusing bureaucracy upon businesses that are already effectively testing their products. Absent some sort of legislative remedy, however, these rules are expected to be finalized in March and will likely be effective by August/September of this year.

To view the proposed rule on Testing and Certification, visit: www.gpo.gov/fdsys/pkg/FR-2010-05-20/pdf/2010-11365.pdf.
To view a CPSC webcast on this topic, visit: http://www.cpsc.gov/vnr/asfroot/cm04152010p3.asx


Stays of Enforcement For Lead and Phthalates
One recent bright point was the Commission's January 31 extension until the end of this year of an existing stay of enforcement for testing and certifying of lead content in children's products that was set to expire on February 10. Although industry was mollified by the delay, CPSC Chairman Inez Tenenbaum made clear this is the last time the stay will be extended and that it will automatically lift on December 31, 2011. She also reminded stakeholders that companies continue to be required to comply with the limits for total lead content in children's products, which are currently set at 300 parts per million (ppm) and at this point, are set to drop to 100 ppm on August 14, 2011 (although the commission is currently evaluating the technological feasibility of the 100 ppm limits).Meanwhile, the stay of enforcement in place for testing for phthalates in children's products is expected to be lifted sometime in 2011 once the CPSC has issued interpretations of "toy" and "child care article" which are subject to the phthalate standards.


Conclusion
The bottom line is that consumer product manufacturers are looking at some fairly significant testing, certification and recordkeeping obligations in the near future. The one bit of good news is that the increased Republican presence on Capitol Hill and a bipartisan emphasis on preventing agency red tape excess likely mean that rules proposal forTesting and Labeling" will likely be the target of great scrutiny once finalized and there will be even more momentum for a meaningful legislative remedy to address these regulatory excesses. INDA will continue to back comprehensive legislative reforms and will seek member input when opportunities arise.

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