Beveridge & Diamond
 

CPSC Implements New Consumer Product Requirements

Beveridge & Diamond, P.C., November 25, 2008

The Consumer Product Safety Commission has taken a number of significant actions in recent weeks to implement the new requirements of the Consumer Product Safety Improvement Act of 2008 (“CPSIA” or “Act”).  Congress passed the CPSIA in August, imposing new consumer product safety requirements for a wide-range of consumer products, including children’s products and toys.  The CPSC has clarified the scope of the expanded conformance certification requirements, issued guidance on the effective dates of new lead and phthalate restrictions and also requested comments on various other provisions of the CPSIA.

Products Subject to Conformity Certification Requirements.  Under the CPSIA, certain consumer products manufactured on or after November 12, 2008, require a certification that the product complies with certain consumer product safety rules and other standards enforced by the CPSC.  The conformity certificate is to be prepared by manufacturers and importers and must be provided to distributors and retailers.  The CSPC recently clarified that the conformity certification requirement applies only to products manufactured on or after November 12, 2008, regardless of when the product is imported or offered for sale.

Streamlined Conformity Certification Requirements.   On November 18, the CPSC published a final rule narrowing the scope of entities required to issue general conformity certifications by designating importers (in the case of imported products) and domestic manufacturers (in the case of domestically produced products) as the sole entities responsible for issuing the certificates.  This relieves private labelers and foreign manufacturers from any of the general certification requirements.   The general conformity certificates must “accompany” each shipment of products and must be “furnished” to each distributor or retailer.  The CPSC has stated that the certificate issuer may comply with these requirements by issuing an electronic certificate, so long as (1) the certificate complies with the statutory content and language requirements and (2) the certificate can be reasonably accessed by information on the product or accompanying the product, such as a URL linking to a website that contains the certificate.

Products Subject to Phthalate Restrictions.  Beginning February 10, 2009, the CPSIA prohibits persons from manufacturing for sale, offering for sale, distributing in commerce, or importing into the United States "children's toys" and "child care articles" containing more than 0.1% of certain phthalates.  On November 17, 2008, the CPSC released a General Counsel advisory opinion concluding that the phthalate restrictions adopted under the CPSIA apply only to products manufactured after the effective date of February 10, 2009.  The advisory opinion has received criticism from some members of Congress.  On November 21, 2008, Sen. Barbara Boxer (D-Calif.) sent the CPSC General Counsel a letter stating that it was the intent of Congress to ban the sale of any children's toy or child-care article containing certain phthalates beginning February 10, 2008, and asked that the advisory opinion be withdrawn.

Request for Comments on Phthalates Ban.  On November 13, 2008, the CPSC published a request for comments on the CPSIA Prohibition on Sale of Certain Products Containing Specified Phthalates.  The CPSC expressed interest in receiving comments on several specific topics, including the use of polyvinyl chloride (PVC), non-PVC plastics, phthalates and phthalate alternatives in children’s products, as well as the toxicity of and exposure to phthalates.  Comments are due no later than January 12, 2009.  For more information on the phthalate ban and the request for comments, please see our November 20, 2008 web alert.  

Retroactive Application of Lead Restrictions.  The CPSIA also imposes new restrictions on lead levels in the substrate of children’s products, beginning February 10, 2009.  Furthermore, beginning August 14, 2009, the CPSIA lowers the existing restrictions on lead in paint, articles intended for children bearing lead paint and furniture bearing lead paint.  The CPSC has issued an advisory opinion stating that the lead and lead in paint provisions are "retroactive," and apply to products “offered for sale” on February 10, 2009 (for lead limits) and August 14, 2009 (for lead in paint limits), regardless of when the product was manufactured.  Therefore, all children's products offered for sale on February 10, 2009 must meet the new lead content limits, and all products subject to the lead in paint standard being offered for sale on August 14, 2009 must meet the new lead in paint limits.  Items not meeting the new limits must be removed from the shelf on the pertinent effective date. 

Final Labeling Rule for Certain Advertisements.  On November 17, 2008, the CPSC issued a final rule implementing new cautionary labeling requirements for internet and catalogue advertising required by the CPSIA.  Section 24 of the Federal Hazardous Substances Act (FHSA), requires cautionary labeling for certain toys or games intended for young children. Section 105 of the CPSIA extends the obligations under Section 24 of the FHSA to require that, when a product’s packaging requires a cautionary statement, any advertising for the product that provides a direct means for purchase or order of the product (including printed materials and Internet Web sites) must bear the same cautionary statement.  The CPSIA provides that the cautionary labeling requirements for advertisements on internet websites becomes effective on December 12, 2008. 

Delayed Effective Date for Labeling in Catalogues and Printed Materials.  The Act also provides that the requirements for cautionary statements in advertising on printed materials is effective on February 10 but allows the CPSC to delay the effective date until August 9, 2009.  The CPSC chose to delay the effective date in the final rule issued on November 17th.   During this grace period, catalogues and other printed materials printed prior to February 10, 2009 may be distributed without the required cautionary statements. Catalogues and other printed materials that are printed on or after February 10, 2009 must bear the required cautionary statements. All catalogues and other printed materials distributed on or after August 9, 2009 must comply with the rule, regardless of when they were printed.

Request for Comments on Civil Penalty Factors.  The CPSC also issued a request for comments on the civil penalty criteria to be used in assessing penalties under the FHSA, the Consumer Product Safety Act, and the Flammable Fabrics Act.  The penalty criteria, as amended by the CPSIA, consider factors such as the nature and gravity of the violation, the nature of the product defect, the severity of the risk of injury, whether an injury occurred, the number of defective products distributed in commerce, and the size of the business.  Within one year of enactment, the CPSIA requires the CPSC to issue regulations providing its interpretation of the penalty criteria.  Comments must be received by the CPSC no later than December 18, 2008.  The CPSC will also issue a notice of proposed rulemaking before it issues a final rule, which will provide an additional opportunity to comment before the rule is finalized.

Upcoming 2008 Deadlines under the CPSIA

Many of the new obligations created by the CPSIA will become effective throughout 2009 and beyond.  However, there are two upcoming deadlines that will become effective in December 2008.

  • Effective December 12, 2008, any internet advertisement for a children’s toy or game that requires a cautionary statement under Section 24 of the FHSA must have a similar cautionary statement.
  • Effective December 22, 2008, third-party testing must be completed and a certification of compliance must be issued before importing, warehousing, or distributing furniture or a children’s product containing paint or any other surface coating.

For more information on these and related CPSC developments, please contact Paul Hagen phagen@bdlaw.com or Angie Colamaria acolamaria@bdlaw.com

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