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CPSC Holding Third Party Testing Exemptions Workshop




by:
Matthew R. Howsare
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. - Washington Office

 
March 3, 2014

Previously published on February 21, 2014

The CPSC is voting soon on whether to hold a workshop to discuss potential ways to reduce third party testing costs through additional “determinations” that certain products or materials do not require third party testing. Although the agency refers to these as determinations, they are essentially exemptions from the third party testing requirements for products or materials the CPSC determines do not require such testing because they are always expected to be compliant. If approved by the Commission, the workshop will take place on April 3rd and also be available via webcast. You can sign up to participate here (link will not be active until after the vote).

The workshop will exclusively discuss the following three areas in which future CPSC determinations may be made:

  1. Lead content
  2. Phthalate content
  3. The solubility of the eight elements listed in the federal toy standard (ASTM F963)

The agency is also seeking information on various factors relevant to making these types of determinations, including consideration of raw material sourcing, the manufacturing processes used, whether recycled materials are or may be included, and the potential for contamination.

The CPSC’s draft federal register notice states the goal of the workshop is to collect ”information and evidence concerning possible determinations that certain materials, irrespective of their manufacturing origin or manufacturing process, comply with the applicable content or solubility limits of applicable children’s product safety rules with a high degree of assurance, without requiring third party testing.” In the original determinations rule, which was limited to lead content determinations, the agency stated it would make “determinations that certain commodities or classes of materials or products do not, and, by their nature, will not exceed the lead limits.”

Interestingly, this notice appears very deliberately use the defined term “high degree of assurance” when describing the standard needed to achieve a determination. This term was recently introduced in 16 CFR 1107 (commonly referred to as the “testing rule“) and means “an evidence-based demonstration of consistent performance of a product regarding compliance based on knowledge of a product and its manufacture.” It is not clear from the notice whether the CPSC is somehow changing its previous requirements for a determination or just articulating a similar standard utilizing a term that was not yet codified in the CFR when the original determinations rule was finalized in 2009.

The workshop will be held from 9am-4pm on April 3. Individuals interested in serving on panels or presenting should register by March 13. All others who wish to attend should register by March 27. Written comments are due by April 17.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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Matthew R. Howsare
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Business Law
 
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