Happy New Year with the CPSIA!

In a flurry of activity at the end of December 2009, the CPSC issued several important notices, many of which have significant impact on product testing and compliance in 2010 and beyond.  

First came the Commission’s decision to extend the stay of enforcement on testing and certification for many children’s products.  The stay of enforcement was due to expire on February 10, 2010 and third party testing of all children’s products could have been required.  While third party testing will be required on four additional categories of children’s products manufactured after 2/10/10 – bicycle helmets, bunk beds, infant rattles, and dive sticks – many other requirements fall under the extended stay and will not (yet) require third party testing.  These include phthalates and the ASTM F963 toy safety standard, which will require third party testing 90 days after CPSC publishes the laboratory accreditation requirements.   

Of particular concern to industry is the lead content requirement which applies to accessible substrate materials used in all children’s products.  The Commission voted separately on this, and extended the stay of enforcement for third party testing and certification of lead content for another full year, until 2/10/11.  It’s important to remember that, regardless of any of the stay extensions, compliance to CPSIA limits is still mandatory. 

In addition to the extensions of the stay of enforcement, the CPSC voted to adopt an interim enforcement policy allowing component part testing for lead in paint and lead content.  Component testing was included in CPSC’s November 2009 draft guidance document regarding CPSIA Testing and Certification, and was a major topic of discussion at the December 2009 CPSC Workshops.  Under this interim enforcement policy, which became effective on December 16, 2009, manufacturers and importers can certify product compliance in one of two ways:

·                     have the final product tested by a recognized independent third party testing laboratory (which is how compliance had been handled prior to this interim enforcement policy), or

·                     accept certificates from component suppliers that declare that the component complies with CPSIA limits based on appropriate testing.

This acceptance of certificates from component suppliers is a major change in product testing, and will help reduce redundant testing (when the same component is used on multiple final products) and the need for a large number of samples to perform certain tests (when there is a small painted area for example).  It does raise some concerns, though, with regards to traceability.  For example, how can a company be sure that the testing was performed on the same paint used on the final product or that contamination didn’t occur during the manufacturing process.  The CPSC policy does try to address these concerns by requiring traceability of the component down to the batch or part number and requiring that testing be performed on “representative” samples.  The manufacturer or importer is ultimately responsible for product compliance, and issuance of false or misleading certificates for any paint or component is subject to penalties.

Other end-of-year activities by the Commission with regards to the CPSIA include:

·                     Appointment of Chronic Health Advisory Panel (CHAP) to “examine the potential effects on children’s health of phthalates and phthalate alternatives as used in children’s toys and child care articles.”  The second set of three phthalates in Section 108 of the CPSIA – DINP, DIDP, and DnOP – is under an interim ban pending the recommendation of the CHAP.  The CPSIA requires that the CHAP complete its examination within 18 months after its appointment.

·                     Establishment of a new rule requiring manufacturers of durable infant or toddler products to establish and maintain a registration card program.  Interestingly, this new rule applies not just to the 12 product categories listed in Section 104 of CPSIA but applies to an additional six products as well – children’s folding chairs; changing tables; infant bouncers; infant bathtubs; portable toddler bed rails; and infant slings.  The rule goes into effect 180 days (after publication in the Federal Register) for the 12 initial product categories, and 365 days for the additional six products.

·                     Announcement of two day public workshop (January 11 and 12, 2010) regarding the establishment of a public consumer product safety incident database.  Previous public meeting on the database was held on November 10, 2009.  During the January workshop, the Commission is seeking input from stakeholders on five aspects of the public database – data analysis and reporting, reports of harm, manufacturer notification and response, additional database content, and materially inaccurate information.  There is a March 2011 deadline for implementation of the public consumer product safety incident database.

Based on their recent activities, particularly those related to testing, the CPSC seems to be making an effort to be reasonable and responsive to industry challenges while enforcing the CPSIA as written and continuing with their overall mission to protect the public from unreasonable safety risks from consumer products.