The Consumer Product Safety Improvement Act of 2008 (“the CPSIA”) significantly impacts both foreign and domestic manufacturers of children’s products and other goods through the regulation of these manufacturers’ products. Many of the CPSIA’s requirements came into effect last year. Others are being phased in. The new, drastically lower maximum lead limits come into effect on August 14, 2009.
Affected manufacturers should take note of these new rules and regulations, because the CPSIA increases substantially the civil and criminal penalties for violations. Under the CPSIA, “manufacturer” includes importers and anyone who makes, produces, or assembles a product. Foreign manufacturers of relevant products are effected directly, through liability as a manufacturer, and indirectly, through new U.S. customer requirements as those customers seek to ensure compliance with their own obligations under the CPSIA. This blog addresses issues that affect most products under the CPSIA’s regime. A subsequent blog will discuss certain temporary exemptions that have been granted to specific industries.
The CPSIA establishes new limits on the lead content of the products that it regulates, with said limits decreasing over time. For children’s products, the maximum allowable total lead content will decrease from 600 ppm to 300 ppm on August 14, 2009, and to 100 ppm on August 14, 2011. For lead paint, the maximum amount of lead that it can contain will be reduced from 600 ppm to 90 ppm on August 14, 2009. The CPSIA also authorizes the Consumer Product Safety Commission (“the Commission”) to revise the lead content levels of consumer products downward, provided such a revision is technologically feasible.
Additionally, the Commission is granted discretion to determine whether a commodity, class of materials, or a specific material automatically does not exceed the lead content limits discussed above or whether it exceeds such limits, but is excluded from such regulations. The Commission recently published a final rule detailing the procedures and requirements for a Commission determination or exclusion. If the Commission determines that a material in question automatically does not exceed the relevant lead content limits, that material would not be subject to the testing requirements prescribed by the CPSIA (discussed below). On the other hand, if a product or component unavoidably has a lead content higher than the CPSIA allows, that item must be granted an exclusion by the Commission in order to be sold in the United States. In order to qualify for an exclusion, normal and foreseeable use of the item in question must not result in the absorption of any lead into the human body nor have any other adverse impact on public health or safety.
The CPSIA places restrictions on the amounts of phthalates that children’s toys and other child care articles can contain. A “children’s toy” is defined as a product intended for a child 12 years old or younger for use when playing, and a “child care article” is a product that a child 3 years old and younger would use for sleeping, feeding, sucking, or teething. These products are not allowed to contain concentrations of DEHP, DBP, or BBP higher than 0.1%. Additionally, on an interim basis, a product falling under one of these two categories cannot contain DINP, DIDP, or DnOP in concentrations higher than 0.1% if the product can be placed in the child’s mouth or brought to the mouth to be sucked or chewed. The CPSC has published on its website answers to frequently asked questions about the phthalates restrictions.
Certificates of Compliance
For any product manufactured after November 12, 2008, the CPSIA initially required that all manufacturers, importers and private labelers of such products certify that they comply with all applicable consumer product safety rules, regulations, bans, and standards that are issued by Congress or the Commission. The CPSIA also granted the Commission the authority to designate by rule one or more of the above-mentioned parties to issue the required certificate and to relieve the other parties from the requirement to furnish certificates. In the case of products manufactured outside of the U.S., the Commission has designated the importer as the sole entity that must issue such certificates. Nevertheless, while the importer has the legal duty to certify, in order to make that certification it is likely to contractually impose certification requirements on its foreign suppliers. Additionally, the Commission has determined that these certificates may be furnished in electronic form, provided that the electronic certificate is available to the Commission upon request before the product or shipment is introduced into domestic commerce. The CPSC published its final rule regarding certificates of compliance on November 18, 2008.
The Commission is required to establish deadlines by which manufacturers of CPSIA-regulated products are to begin third-party testing and certification of their products. Due to the Commission’s limited resources, it was unable to meet the CPSIA’s deadline for establishing these testing and certification requirements, which has resulted in a stay of enforcement of those requirements until February 10, 2010. This stay of enforcement currently applies to all products regulated by the CPSIA, with the exception of: products that were subject to such requirements prior to the CPSIA, lead paint, full-size and non-full size cribs and pacifiers, small parts, metal components of children’s metal jewelry, certain ATV’s, and other products governed by different acts incorporated into the pre-existing Consumer Product Safety Act. Testing guidelines and a list of approved third-party testing laboratories will be provided for CPSIA-regulated products on a rolling basis. Nevertheless, all products regulated by the CPSIA, regardless of whether they are currently subject to testing requirements, must still comply with the other certification requirements discussed above.