Understanding CPSIA

A legislative column by Mike Dwyer, JPMA

Mike Dwyer -- Kids Today, 6/1/2009 12:00:00 AM

 

Mike Dwyer

The federal Consumer Product Safety Improvement Act of 2008, which became law last August, imposes a number of new requirements on consumer product manufacturers, distributors and retailers.

Looming Deadlines

Industry has been subject to increasing pressure and a chaotic implementation of the CPSIA when key provisions went into effect on Feb. 10. The CPSC was forced to retrench and granted a stay of new testing and certification requirements until Feb. 10, 2010. However, bans on the sale of lead containing product or accessible parts (in excess of 600 ppm) and certain restricted phthalates (plastic softeners) in certain toys and childcare articles for children under 3 used to facilitate sleep, feeding, sucking or teething have already gone into effect.

Unintended consequences have been widespread as products have been withdrawn from the marketplace and CPSC has complained that they lack the flexibility to exclude products that historically have not presented any health hazard from the new requirements.

Looming deadlines also will result in the following requirements being implemented by Aug. 14, 2009:

• The limit for lead in substrates will be reduced from the current 600 parts per million to 300 ppm

• The limit for lead in paint and surface coatings will be reduced from 600 ppm to 90 ppm

• Consumer registration requirements will be developed and required of manufacturers of certain durable nursery products, so that consumers can register their products creating a database of contacts in the event of a recall of such products

• Tracking labels, to the extent practicable, for children's products manufactured after Aug. 14, 2009

Tracking capability for products

Section 103 of the CPSIA, Tracking Labels for Children's Products, goes into effect on Aug. 14, 2009 and would apply to all "children's products" manufactured after that date. Under the CPSIA, a "children's product" is a consumer product primarily designed or intended for use by children ages 12 and younger.

Section 103 requires, "to the extent practicable," the placement of permanent, distinguishing marks on children's products and packaging to enable manufacturers and consumers to ascertain the location, date of production and other identifying information regarding the source of the product in the event of a recall.

More than 130 comments were received and are now being analyzed by the CPSC and a public meeting was held on May 12 to gain additional information.

On May 13, the CPSC did not grant the National Association of Manufacturers' request for emergency stay of the Section 103 labeling requirements. (JPMA is a member of the NAM CPSC Coalition and was a signatory to the request.) Acting Chairman Nancy Nord voted to grant the request for a stay, while Commissioner Thomas Moore voted to deny the request. Because a unanimous decision was required to grant the stay, it was effectively denied.

In her statement in favor of a one-year stay of enforcement, Nord noted that one of the most important responsibilities of the CPSC is its ability to recall products found to be harmful to consumers and that tracking labels could facilitate these efforts. She recognized, however, that compliance with the provisions would cause significant disruptions and adverse impacts on manufacturers, especially small companies. She suggested that high-value, long-lasting products with a history of recall issues should be targeted first and that the CPSC could then determine how tracking labels should apply to additional products.

In his statement against the stay, Commissioner Moore stated that he expects the tracking label provisions to evolve over time as the CPSC learns more about manufacturers' attempts to comply with these provisions of the statute. He suggested that as long as manufacturers label their products with the information required by the statute and do not take a "cavalier" approach to the "to the extent practicable" language, they will not be found to violate the law.

He recognized that in the past the CPSC had stayed enforcement of the CPSIA for certain products, but that it has not granted such a blanket stay of enforcement for every affected product.

The vague requirements have resulted is some confusion for sellers of children's products. However, a few things are clear. The requirement only applies to products manufactured in the traditional sense after Aug. 14, 2009, and it is clear that a flexible approach based upon a variety of manufacturer identification systems will as of necessity be employed by manufacturers. JPMA has been very involved in efforts to provide reasonable comments and guidance to industry and will continue to do so.

Changes at the Consumer Products Safety Commission

On May 5, President Obama named a new chairman of the CPSC (Inez Moore Tenenbaum), added a fourth commissioner (Robert Adler), and promised a fifth commissioner. Adler is currently a Professor of Legal Studies at the University of North Carolina at Chapel Hill's Kenan-Flagler Business School. Prior to joining UNC, he served as Counsel on the Committee on Energy and Commerce where he advised on CPSC legislative and oversight issues under the leadership of Henry Waxman. Prior to that, he spent 11 years (from 1973–1984) as an attorney-advisor to two Commissioners at the CPSC. Tenenbaum was elected South Carolina's State Superintendent of Education in 1998 and completed her second term in 2007.

On May 27, 2009, news broke that Acting Chair Nancy Nord plans to step down and fellow Commissioner Moore would take over as acting head on June 1 until a new chairman is confirmed by the Senate. In a statement, Nord said she plans to remain a commissioner until the end of her term in 2012.

President Obama also confirmed $107 million for the CPSC's budget, a figure that is a 71% increase over 2007 funding. Many feel that these changes will likely result in increased enforcement of safety requirements set forth in the CPSIA.

For more information about CPSIA, visit cpsc.gov/about/cpsia/cpsia.html or jpma.org.