- Consumer Product Safety Improvement Act of 2008
- December 21, 2009
- Law Firm: Sheppard, Mullin, Richter & Hampton LLP - Los Angeles Office
In August of 2008, President Bush signed into law the Consumer Product Safety Improvement Act ("CPSIA") which, among other things, mandated implementation of a certification protocol for all consumer products subject to safety rules under the jurisdiction of the Consumer Product Safety Commission ("CPSC"). Broadly, "consumer products" are defined as any product used in a residence, school, or for recreational or personal use (subject to enumerated exceptions). Various CPSC bans and standards already in place will now operate in conjunction with CPSIA, such as the Federal Hazardous Substances Act ("FHSA"), the Flammable Fabrics Act ("FFA"), the Poison Prevention Packaging Act ("PPPA") and the Refrigerator Safety Act ("RSA"). While, for the most part, the CPSIA does not alter pre-existing safety standards for products, it does require that all such consumer products now certify compliance. Products not certified must be refused entry into the US and destroyed unless permission is given for re-shipment. The CPSIA expands independent, state-level enforcement activities authorizing State Attorneys General to initiate proceedings in federal courts. The CPSIA also imposes stricter civil penalties up to $100,000 per violation, with an overall cap on penalties of $15 million.
For the majority of consumer products, the sole impact of CPSIA is the certification requirement. As of November 12, 2008, all products subject to a ban or safety standard must be accompanied by a General Certificate of Conformity (GCC). The GCC must contain the following information: 1) date and place of manufacture; 2) date and place of testing; 3) a suitable identification of the manufacturer or private labeler issuing the certificate (including the name and contact information for the individual responsible for maintaining records of test results); and 4) certification of conformance with any and all applicable Consumer Product Safety rules, along with a specification of those applicable standards. For non-children's products, the testing program need not be one of those specifically accredited by the CPSC, but need only be "reasonable". The other requirement related to the GCC is that it must "accompany" the certified product. The CPSC has issued a final rule construing this provision, which allows for GCCs to be made available through electronic means. Electronic GCCs can be posted on a website for inspection or included with other electronic documents accompanying shipments through Customs. The critical factor is that the GCCs can be readily accessed upon demand.
Finally, there has been some confusion over which parties in the stream of commerce bear the responsibility for obtaining and issuing GCCs. The CPSC has mandated a streamlined approach, limiting the number of parties who must issue conformity certifications. Under this approach, for imported products, only the importer needs to issue the conformity certificate. Foreign manufacturers and private labelers of imported products will not be required to issue GCCs, nor be listed as parties on GCCs. For products manufactured in the US, only the domestic manufacturer is required to supply a GCC. The CPSC has further announced that enforcement efforts will, at least initially, primarily be directed towards compliance with the safety requirements themselves, rather than strict adherence to form.