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Consumer Product Safety Improvement
Act of 2008
Date: November 24, 2008
The Consumer Product Safety Improvement Act
of 2008 ("CPSIA") which was signed into law on August
14, 2008 as Public Law 110-314 imposes new compliance requirements
upon manufacturers and importers of children's products, toys
and games, children's products containing lead and lead paint
used on those products, products containing phthalates, etc. The
CPSIA requires testing, certificates of compliance, and labeling
of children's products beginning in November 2008 and through
2009 on a phased-in timeline. For the purposes of the CPSIA, "children's
product" is defined as a consumer product designed or intended
primarily for children 12 years of age or younger. While the CPSIA
places emphasis on children's products, all products subject to
a consumer product safety rule, ban, standard or regulation administered
by the Consumer Product Safety Commission ("CPSC") are
affected. These include the Consumer Product Safety Act, Poison
Prevention Packaging Act, Federal Hazardous Substances Act, Flammable
Fabrics Act, Refrigerator Safety Act, among others.
Given the broad scope of the CPSIA and its impact
on a number of existing product safety laws, affected customers
should closely review the CPSIA to determine the requirements
that must be complied with for your specific products. Guidance
on CPSC product safety standards and regulated products may be
obtained here: http://www.cpsc.gov/businfo/regsbyproduct.html
Summary of Key CPSIA Provisions
Section 101: Children's Products Containing
Lead; Lead Paint Rule
The CPSIA lowers the lead content allowed in
children's products. Children's products may not contain more
than 600 ppm of lead after February 10, 2009. Such products will
be banned and must be off store shelves after this date. Sales
of non-compliant children's products can result in civil and criminal
liability. The lead content allowed in children's products will
be lowered to 300 ppm after August 14, 2009 and down to 100 ppm
after August 14, 2011, unless the CPSC determines that such lower
limits are not technologically feasible.
The CPSIA also lowers the lead content allowed
in paint and similar surface-coating materials for consumer use
from 600 ppm to 90 ppm by August 14, 2009. Such products will
be banned and must be off store shelves by this date.
Section 102: Mandatory Third Party Testing for Certain Children's
Products
Third-party testing by an independent CPSC-accredited
testing laboratory will be required for all consumer products
primarily intended for children 12 years or age or younger. Third-party
testing and certification requirements will apply 90 days after
the CPSC issues laboratory accreditation requirements for the
different categories of children's products. The CPSC will issue
laboratory accreditation requirements in accordance with a phased-in
rolling timeline which can be viewed at the following link: http://www.cpsc.gov/about/cpsia/summaries/102brief.html
Products imported without the required certification
will be prohibited entry into the United States. Civil and criminal
penalties may be imposed for failure to provide the required certification
or for providing false certification.
Section 103: Tracking Labels for Children's Products
This section requires manufacturers to have
a tracking label or a permanent and distinguishing mark on any
consumer product primarily intended for children 12 years of age
or younger. The information required on the tracking label should
include the source of the product, the date of manufacture and
detailed information on the manufacturing process such as a batch
or run number.
The requirements of this section become effective
for children's products manufactured on or after August 14, 2009.
Section 105: Labeling Requirement for Advertising Toys and
Games
Advertisement by manufacturers, importers, distributors,
retailers, or private labelers for certain toys and games intended
for use by children which provide for a direct means of purchase
or ordering of such products must contain a warning regarding
choking hazards. When a product's packaging requires a cautionary
statement, the advertising for the product must contain the same
cautionary statement.
The effective date for advertisements on the
Internet is December 12, 2008. For catalogues and other printed
material, the effective date is February 10, 2009.
Section 108: Products Containing Certain Phthalates
Effective February 10, 2009, the CPSIA permanently
prohibits the manufacture, importation, distribution, or sale
of children's toys or child care articles containing more than
0.1% of DEHP, DBP, and BBP. Three additional phthalates, DIDP,
DINP, and DnOP contained in children's toys or child care articles
that can be placed in a child's mouth are prohibited if in concentrations
of more than 0.1%. The prohibition for the additional phthalates
is imposed on an interim basis and is subject to further analysis
by the CPSC and outside experts to determine if the ban will be
continued.
A "children's toy" refers to a product
intended for a child 12 years of age or younger for use when playing,
and a "child care article" refers to a product that
a child 3 years and younger would use for sleeping, feeding, sucking
or teething.
Section 232: All-Terrain Vehicle Standard
On November 14, 2008, the CPSC issued its final
rule on all-terrain vehicles. The final rule which is effective
April 13, 2009, makes the four-wheeled all-terrain vehicle standard
ANSI/SVIA 1-2007 mandatory and requires the filing of an ATV action
plan with the CPSC by the ATV manufacturer and distributor. Unless
a new assembled or unassembled ATV manufactured on or after April
13, 2009 complies with the ANSI/SVIA 1-2007 standard, it may not
be imported into or distributed within the United States.
The CPSC final rule on all-terrain vehicles
may be accessed here:
http://edocket.access.gpo.gov/2008/pdf/E8-26974.pdf
Certificates of Compliance Requirements and Summary of Final Rule
As a result of the new legislation, testing
and certification will be required for a broader range of products.
Certificates of compliance are now required for all products subject
to bans and standards under the Consumer Product Safety Act as
well as for products subject to any similar rule, standard, ban,
or regulation under any other Act enforced by the CPSC. The new
general certification requirement is effective for products manufactured
on or after November 12, 2008 and must be based on a test of the
product or a "reasonable testing program". For certain
children's products, certification must be based on testing by
a third-party laboratory that has been accredited by the CPSC.
Given the extremely short deadline for compliance
with the new certification requirements and to address a deluge
of inquiries and concerns from affected parties in the trade community,
the Consumer Product Safety Commission issued a final rule on
November 18, 2008 to clarify the requirements for certificates
of compliance.
The final rule amends the regulations and limits
the certification requirements to importers and domestic manufacturers.
At this time foreign manufacturers and private labelers will not
be subject to certification requirements. For products manufactured
outside the United States, the importer must certify and provide
the certificate of compliance. The certificate must be made available
to the CPSC as soon as the product or shipment is available for
inspection in the United States. For domestic products, the manufacturer
must certify and provide the certificate of compliance. The certificate
must be made available to the CPSC prior to introduction of the
product or shipment into the commerce of the United States.
The certificate of compliance may be in hard
copy or electronic form and must accompany each product or shipment
of products and be furnished to each distributor or retailer of
the product. The certificate must be provided in English and contain
the following information:
- Identification of the product covered by
the certificate.
- Citation to each CPSC regulation to which
the product is being certified. The certificate must separately
identify each applicable consumer product safety rule under
the Consumer Product Safety Act and any similar rule, ban, standard
or regulation under any other act enforced by the CPSC that
is applicable to the product.
- Identification of the importer or domestic
manufacturer certifying compliance of the product, including
the name, full mailing address and telephone number.
- Contact information for the individual maintaining
records of test results, including the custodian's name, email
address, full mailing address, and telephone number.
- Date (month and year at a minimum) and place
(including city and state, country, or administrative region)
where the product was manufactured. If the same manufacturer
operates more than one location in the same city, the street
address of the factory in question should be provided.
- Date and place (including city and state,
country or administrative region) where the product was tested
for compliance with the regulation cited in #2 above.
- Identification of any third-party laboratory
on whose testing the certificate depends, including name, full
mailing address and telephone number of the laboratory.
Electronic certificates are subject to the following
conditions:
- The certificate is identified by a unique
identifier and can be accessed via a World Wide Web URL or other
electronic means, provided the URL or other electronic means
and the unique identifier are created in advance and are made
available, along with access to the electronic certificate itself,
to the CPSC or to Customs as soon as the product or shipment
is available for inspection.
- The distributor or retailer of the product
is provided a reasonable means to access the certificate.
- The electronic certificate must have a means
to verify the date it was created or last modified.
The final rule states that the certifying entity
(the importer or domestic manufacturer) is legally responsible
for the accuracy and completeness of the certificate and its availability
in a timely fashion. The CPSC recommends that the certifying entity
maintain test records supporting the certification for at least
3 years.
At this time a certificate of compliance is
not required to be submitted to U.S. Customs and Border Protection
at the time of entry of the products into the United States.
It is important that importers review the CPSIA
to determine which regulations apply to their products, if any,
and to ensure full compliance with all requirements. The CPSC
states that after an initial period of adjustment, failure to
comply with the certification requirements will subject shipments
to refusal of admission and possible destruction.
Penalty Assessments
The CPSIA increases civil penalties to $100,000
per violation and increases the maximum cap to $15,000,000.
CPSIA and Certificates of Compliance Information
Information and additional details on the CPSIA
and summaries of the sections may be accessed here:
http://www.cpsc.gov/about/cpsia/legislation.html
http://www.cpsc.gov/ABOUT/Cpsia/cpsia.html
http://www.cpsc.gov/ABOUT/Cpsia/faq/faq.pdf
The CPSC's final rule on Certificates of Compliance published
in the November 18, 2008 Federal Register may be accessed here:
http://edocket.access.gpo.gov/2008/pdf/E8-27356.pdf
The information
accompanying this webpage contains confidential information. The
information is intended only for the use of customers of James
J. Boyle & Co. You are hereby notified that any disclosure,
copying, distribution or the taking of any action in reliance
on the content of this information is strictly prohibited. James
J. Boyle & Co. will also not be held accountable for any discrepant
information. The service we provide is based on our "Terms and
Conditions of Service", which is available upon request.
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