- CPSC Issues Draft Guidance, Plans Workshop on CPSIA Training Testing and Certification Requirements
- November 19, 2009 | Authors: Sheila A. Millar; Jean-Cyril Walker
- Law Firm: Keller and Heckman LLP - Washington Office
On November 4, 2009, the Consumer Product Safety Commission (CPSC or Commission) released a draft guidance document regarding compliance with the testing and certification requirements of Section 102 of the Consumer Product Safety Improvement Act (CPSIA), and the Commission staff briefed the Commissioners on the draft guidance at a public meeting on November 6. The draft guidance follows on the heels of the October 29 announcement that the Commission will hold a public workshop on the topic on December 10 and 11. The workshop will explore elements of the interim guidance on which product safety rules require a general conformity certification, the essential elements of a reasonable testing program, information on the third-party certifications for children's products and periodic testing requirements, and information on use of component part testing. The guidance appears to offer some welcome flexibility, but many questions remain. It will therefore be important for companies and associations to provide their input.
Section 102 of CPSIA amended the Consumer Product Safety Act (CPSA) to require that domestic manufacturers or importers provide general conformity certifications for all consumer products subject to a standard, ban, rule, or regulation administered by the CPSC. Section 102 also sets forth a phased-in scheme of accredited third-party testing for children's products. On January 30, 2009, except for standards CPSC had already issued for testing by accredited third-parties, the Commission stayed the requirements of Section 102 until February 10, 2010. Unless the Commission votes to extend the stay, the stay of enforcement will expire in less than three months, a worrisome possibility given supply chain realities for design approvals and testing and the evolving nature of guidance.
General Conformity Certifications
The guidance explains that all non-children's products subject to a consumer product safety rule under the CPSA or similar rule, standard, ban, or regulation enforced by the Commission, require a general conformity certification based upon a reasonable testing program.
- Products Requiring a General Conformity Certificate: The specific standards, bans, and rules applicable to non-children's products for which products would need a general conformity certification are listed in Appendix A. Interestingly, Appendix A does not cite the child-resistant packaging requirements of the Poison Prevention Packaging Act (PPPA) or labeling provisions of the Federal Hazardous Substances Act (FHSA). Questions arose last year about whether certifications to these rules would be required, and in some Frequently Asked Questions, the Commission indicated that products subject to the PPPA's packaging requirements would require certification. Appendix B of the guidance outlines the standards, bans, rules and regulations applicable to children's products.
- Reasonable Testing Program: A reasonable testing program is one that demonstrates with reasonable certainty that all consumer products certified to comply with the applicable standards and should, at a minimum, contain the following 5 essential elements: (1) product specifications that describe the consumer product and list the safety standards with which the product must comply; (2) certification tests; (3) a product testing plan; (4) remedial action plans (for use when tests yield failing results); and (5) sufficient documentation of the testing program and how it was implemented.
Third-Party Testing and Certification of Children's Products
CPSC reiterates in the guidance that the phase-in schedule for third-party certification for children's products is linked to the issuance of standards regarding the accreditation of testing laboratories. A children's product will require a certification based upon a CPSC-recognized third-party conformity assessment body 90 days after the Commission publishes the notice of requirements pertaining to accreditation. Until such accreditation standards are released, manufacturers should issue general conformity certifications (when the stay is lifted) based upon a reasonable testing program.
Section 102 of the CPSIA also requires additional third-party testing of children's products periodically and when there is a material change in the product's design or manufacturing process. In this regard, the guidance clarifies the following:
- Material Change in the Product's Design or Manufacturing Process: A material change is any change that could affect a product's ability to conform to a product safety rule. For example, changing the color of paint used on a product would be a material change since the new paint might have a different lead content. When a material change occurs, a manufacturer need only assess the product's conformity with the requirements that might have been impacted by the change. In the case of a new paint color, fresh third-party testing for compliance with the lead in paint regulations would be required.
- Periodic Testing: To ensure that children's products continue to meet applicable standards, the Commission strongly encourages testing of random samples at least once per year. Periodic testing should be conducted by a CPSC-recognized third-party conformity assessment body. The guidance also provides a list of eight factors that would increase the need for more frequent (more than once per year) periodic testing (e.g., severity of risk, production volume, product samples test close to the specified safety limit on the chemical, experience, and test costs).
- Small Volume Producers: Small volume producers must obtain the initial third-party certification but need not conduct periodic testing every year; rather, the guidance suggests that periodic testing need only be conducted when production reaches 10,000 units of a product.
Tests of Component Parts of Children's Products
The guidance explains that the Commission will accept certificates based upon a component supplier's test results, provided that the supplier obtained the results from a CPSC-recognized third-party assessment body. (However, testing of the entire product and not just a component part may be required to show compliance for specific requirements (e.g., crib regulations)). For example, a children's product manufacturer could rely on its paint manufacturer's third-party test results. When certifying based on a component supplier's test results, a manufacturer should do the following:
- Ensure that its production process does not introduce possible contamination (e.g., introduce lead into the supplied paint);
- Obtain a copy of its supplier's test results to ensure the tests comply with CPSC requirements; and
- Perform some product testing to ensure the integrity of their manufacturing process.
The Commission also states that an importer's certification may be based on test results conducted by a foreign manufacturer, provided that the test results were obtained using a CPSC-recognized third-party assessment body. The foreign manufacturer cannot, however, certify the product for the importer.
Comments on the draft guidance must be submitted to the Commission by January 11, 2010. The Commission will also hold a public workshop on December 10-11, 2009, to discuss, among other topics, testing and certification requirements, and encourages interested parties to provide input. Many technical questions will arise about how and how frequently to test. Interested parties should certainly submit their input to the CPSC.