Administrative requirements under the Consumer Product Safety Improvement Act of 2008 (CPSIA) have been, for the better part of a year, promulgated, modified, and stayed at an unprecedented rate. Yesterday's absolute requirements and implementation dates may no longer be in effect; coverage may have been limited or broadened. Before continuing on an existing or embarking on a new program involving the purchase and sale of any covered item,it is imperative that you consult with counsel or other advisor to be sure you are up to date.

OVERVIEW

Products subject to Consumer Products Safety Commission (CPSC) rules, regulations, testing requirements, bans and standards and of those of other agencies that it enforces must be covered by a new certification of compliance. The categories of merchandise covered is broad, with those covering infants', children's and toddlers' products being particularly stringent. The law covers consumer products manufactured, both domestically and abroad, on and after November 12, 2008 but implementation has been repeatedly delayed for many products, most recently for a wild variety of (but by no means all) products, per an announcement dated December 18, 2009, just about two months before the previously announced cut-off date. This certificate must "accompany" the goods at the time of importation or, for domestic goods, their introduction into commerce. The certificates must also be "furnished" to distributors and retailers by the importer or domestic manufacturer. The law requires the destruction of imports that are not covered by a certificate prepared before importation. Failure to furnish them to a distributor or retailer will result in equally onerous penalties. As having the certificate gives some protection to the distributors and retailers, they can be expected to demand them.
Products covered: Examples: Wearing apparel is subject to the Flammable Fabrics Act which is administered by the CPSC, children's products, refrigerators, off-road vehicles, bicycle helmets, mattresses and toasters, to name a few.

A certification is a means for vouching that the product complies with the CPSC's requirements. There are two types of certifications--(1) a "General Conformity Certificate,” which must provide substantial information about the source of the merchandise, the rule, regulation, etc., to which it is subject and confirmation that testing has confirmed compliance (or that the product is exempt from testing.) Some testing protocols are simple enough to be performed in-house but others require the use of a commercial testing lab, and (2) a special certificate for lead paint and products painted with it and for children’s products. These must be tested by a CPSC accredited laboratory and the specific categories of goods that must be tested by the accredited labs will grow in stages beginning December19th (unless that date is extended). This memorandum primarily addresses the General Conformity Certification.

As mentioned, there has been a great many changes in what is required and when. As recently as December 18, 2009, the CPSC has put off the requirement for the General Conformity Certificate for a large number of products.

While the certificate does not have to be filed with any government agency, at least until the final effective date, must accompany the goods. At first, the CPSC read "accompany" to mean that it had to be physically present with the goods on importation--such as packed with them in their shipping cartons or containers. After much protest, the CPSC agreed that this was impractical and now requires it be immediately accessible on demand on or after the time the goods are available for Customs' or CPSC inspection. The Certificate can even be filed electronically, on a home web page, although if you do so you must be sure to have provided the web site toethe government and your customers (this may be done by a notation on the import and sales invoices) and to the have something in your system to show the date it was prepared or last modified--for it must have been prepared prior to importation.. The certificate must be maintained in the US for a minimum of three years, along with the records of tests that back it up.

The law requires that imported goods not accompanied by a certificate are to be denied entry and are to be destroyed, with the cost of destruction (including government employees salaries) borne by the importer or consignee. If requested by the government and not furnished, or if it is false, there are civil penalties. If a certificate is furnished by one who knows it to be false, criminal penalties apply. However, justifiable reliance on a properly conducted test is a defense--against penalties. A certificate or a test does not assure that a product is in compliance. It will not, for example, insure against a recall should the agency test and find fault.

How the certificates were to be "furnished " to the retailers and distributors was also the subject of dispute. The CPSC is now interested in being assured that they will either have it in hand or know where to get it. You could attach it to our invoice, for example or list on your invoices the web address where it is posted, if you go that route.

Delay in implementation: The CPSC plans to delay enforcement of the certification requirements until February 10, 2010 except for

1. Lead paint and other surface coatings, for products made after January 20, 2008;
2. the standards for full and non-full size cribs and pacifiers, for products made after January 20, 2009;
3. the ban on small parts, for products made after February 15, 2009; and
4. the limits on lead content on metal components of children's jewelry for products made after March 23, 2009.

Of course, certifications that were formally required remain. Further, while certification requirements as to your products may have been suspended, compliance with the applicable standards, regulations, etc., remains your responsibility.

SOME DETAILS ABOUT THE CERTIFICATE:

The certificate must of course be in English and maintained in the United States, along with the test reports in English that corroborate it . While the law states that the manufacturer, by the importer, and by any private labeler (such as third party trademark owner) must all certify, the CPSC has allowed, at least during the early period of the law's implementation, that only the importer or domestic manufacturer need certify.

The CPSC also lessened the information the certificate must contain, again as an interim measure. Below is the information the law appears to require and you might need in the future. The COMMENT follows indicated whether there has been a modification. The contents and modifications might be changed in the future; so you must check if you are unfamiliar with this program before using one.

Contents

Product description, detailed enough to link it to the specific goods it accompanies. COMMENT: Unchanged.

Contact information (name, address, contact party, telephone/e-mail) of the manufacturer who issued the certificate. COMMENT: As of this date, you need only list the city, state, or administrative region and country where made--a street address is need only if the manufacturer has more than one facility in the same city.

Contact information of a third party conducting the test (not all products need to be tested by a testing laboratory--see below. COMMENT: This is required now only if the test was perfomed by a third-party laboratory.

Contact information of the importer and private labeler, if any. COMMENT: Only that for the importer need be listed.

Location where the goods were manufactured, if different from the address given for manufacturer (as some companies operate plants in different locations.) COMMENT: See above regarding place of manufacture. That suffices.

Date of manufacture and date of testing. COMMENT: You need only list month and year.

The specific regulation(s), standard(s), etc., to which the merchandise is subject. COMMENT: Unchanged

Contact information for person who maintains the test records: COMMENT: Unchanged.

Identity and contact information of any third party testing laboratory.COMMENT: Unchanged.

The certificate need not be signed but the issuer remains responsible for its accuracy.

Testing:

Unless the regulations require testing by an accredited laboratory or set forth specific testing requirements, the CPSC requires a test of each product or a “reasonable testing program.” It wants to give manufacturers wide latitude in designing tests or the test program. The testing must provide reasonable assurances that the product meets all requirements and is stringent enough to detect variations that would cause a product to fail. Generally, the specific nature and the frequency of the testing is left to the discretion of the certifier, but the discretion must be exercised reasonably. For specific products, such as lead-painted articles, items that can be expected to be placed (or find their way) into infants' mouths) and fabrics, there are specific test method that must be used. For certain fabrics, such as sheer rayon and silk, sherpa, and cotton terry, to name a few, testing must be more frequent because of variability in test results.

An importer may issue a certification based on testing preformed by or for a manufacturer, but must maintain the test records (in English) in the US and have them available for submission if requested by the government.

Importation:

As mentioned, there is no requirement for filing the certification with any government agency. However, the statute says that merchandise unaccompanied by the certificate “shall” be denied admission. Given the difficulty in establishing that goods were manufactured before November 12th, especially if imported much later, it should be expected that Customs will expect to see the certification for such goods or strong evidence of an early date of production.

Children’s Products:

The law’s requirements are too varied to address in a general memorandum. To summarize a few points:

1. A child is someone who is 12 years of age or younger. We interpret this to mean before one's 13th birthday--bear in mind that in many countries of Asia, one's 13th year begins on his 12th birthday. Often the question of whether the item is a children's product is subjective. because the product must be "designed or intended" for children The CPSC recently issued a proposed final rule which specifies four determining factors: number of factors can be considered, such as

a. the manufacturer's statements and representations as to the intended use of the product (unless unreasonable),

b. labeling, promotion, display and advertising of the product as appropriate for use by children,

c. how the product is recognized by consumers, and

d. CPSC age determination guidelines.

2. Required testing includes:

a. Testing for lead in surface coatings such as paint and similar coatings, effective for products manufactured on and after November 12, 2008. The current maximum is 600 ppm; it will be lowered to 90 ppm on August 14, 2009.

b. Testing for lead content in chidlren's articles, commencing for goods made after February 10, 2009, at which time the maximum lead content for the article, including all its "accessible" comnponets, cannot have a lead content exceeding 600 ppm For goods made on and after August 14, 2009, the lead content maximum will be 300 ppm.

c. Testing for specified phthalates. There is a total ban on children's toys or child care articles containing more than a maximum amount of certain pathalate chemicals and of other phalates that contain them if the toy or child care article can be placed in the child's mouth or is used to facilitate the sleeping or feeding of children age 3 or younger, or which is used to help such children with suckling or teething.

3. Accreditation of laboratories. The CPSC will require the use of CPSC -accredited labs only, first for the testing paint and other surface coatings. For lead content within the article, accredited labs will have to be used for goods made on and after August 14, 2009.

4. Product labeling. Effective August 14, 2009, a tracking label must be permanently affixed to children’s products, to the extent practicable, and this label is to contain such information as manufacturer, date of production and lot number.

Special requirements as to infants' or toddlers' durable products:

The CPSC is planning to issue a final rule no later than August 14, 2009 regarding such products. As presently drafted, the rule would require that such goods must be accompanied with a postage paid registration form so that consumers may register, in order to provide a data base should there be a product recall. The registration form must be maintained by the manufacturer/importer. Very exact specifications as to the size, typeface and format of the registration form have been prescribed in the draft rule.

The manufacturer's/importer's name must appear on the product as well as contact information, model name/number and date of manufacture.

It s expected that a "durable"product is one that would be expected to have a useful life of at least three years. Such articles as cribs, high chairs, bath seats, gates and enclosures for confining a child, strollers, swings, and basinets, to name a few, would be covered.

And:

The law increases civil penalties for violations of laws administered by the CPSC and can be used to impose criminal liability on corporate officers.

Important Note:

The complexity of the law and the fact that the CPSC has not yet thought through its position on a number of issues means that the requirements can be expected to change. This memorandum is of a general nature and must not be regarded as legal advice applicable to your situation. Further, the specifics of your manufacturing or import program may trigger obligations not covered in this memorandum or perhaps release you from the general requirements. We would be pleased to provide you with legal advice and assistance tailored to your needs and acquainting you and your staff with this law.