- Final Consumer Product Safety Commission Rules Published On Product Testing and Compliance Certification
- November 18, 2011 | Author: Lee L. Bishop
- Law Firm: Miles & Stockbridge P.C. - Washington Office
On November 8, 2011, the Federal Register published two final rules regarding compliance certification for consumer products subject to mandatory U.S. Consumer Product Safety Commission (“CPSC”) requirements. The rules cover children’s products as well as myriad other products, from mattresses to refrigerators. In addition, the CPSC requested public comment on ways to reduce the testing burden on manufacturers attempting to comply with these rules.
The testing and certification rules have their genesis in the 2008 Consumer Product Safety Improvement Act (“CPSIA”), passed in response to widely publicized recalls of children’s products imported from China. In addition to imposing tighter limits on lead in toys, the CPSIA included provisions, intended to prevent future recalls, requiring manufacturers of all products subject to CPSC requirements (not just children’s products) to (1) provide a certificate with each product stating the basis for compliance with those requirements; and (2) either test every product for compliance or adopt a “reasonable testing program” to ensure continued compliance. The law also imposed stricter requirements for children’s products, requiring, among other things, certification and periodic re-testing by CPSC-approved third-party laboratories.
The CPSC’s proposed rules to carry out these requirements met with strong opposition, particularly from smaller toy manufacturers citing costly and unnecessary sampling and testing requirements. Responding to industry objections, Congress in August 2011 enacted several modifications to the compliance assurance requirements in the CPSIA. The modifications eliminated some draconian and irrational requirements and required that the CPSC request public comment on ways to reduce testing costs, particularly the costs to “small batch” manufacturers of children’s products.
The CPSC Response
On October 19, 2011, the CPSC Commissioners voted along strict party lines (three Democrats in favor; two Republicans opposed) to approve two final rules. These rules have been formally published in the Federal Register.
1. Children’s Product Testing Rule
This rule applies only to the testing and continued compliance requirements for children’s products. The rule requires that all children’s product manufacturers provide a “high degree of assurance” of continued compliance with all CPSC-enforced requirements. CPSC expressly declined to require or endorse statistically-based random sampling to achieve this requirement, challenging manufacturers to adopt a blend of production testing of “representative” samples and process controls instead. The rule requires “periodic” retesting by CPSC-approved independent laboratories according to the following:
- Annual retesting if no production controls are adopted,
- Retesting every two years if the manufacturer adopts a “production testing plan” which includes “some” actual product testing, or
- Retesting every three years if the manufacturer conducts tests of ongoing products with an internal, ISO certified lab.
In addition, manufacturers must retest the product whenever a “material change” occurs, either to the product design, manufacturing process, or components.
The CPSC delayed the effective date of this children’s product testing rule for 15 months to allow it to carry out Congress’ direction to solicit comments on reducing testing burdens and, presumably, amend the rules to incorporate any modifications.
Testing for Non-Children’s Products
The rule “reserves” any requirements for continued compliance plans for non-children’s products subject to mandatory CPSC rules. Manufacturers are still required to either test all products for compliance with the rules or carry out a “reasonable testing plan,” but the CPSC declined to provide any new regulatory guidance on how it interprets this term.
2. Component Testing Rule
The second final rule, applicable to both children’s and non-children’s product manufacturers, allows component and raw material suppliers to provide certifications of compliance for their component or material which can be relied upon by finished-product manufacturers in their compliance certifications. This rule is effective in 30 days.
The component testing rule is intended to reduce the testing burden on manufacturers, but the requirements for documentation and oversight of suppliers by finished-product manufacturers and importers, traceability of all certified components and assumption of legal responsibility by the supplier undoubtedly will put a damper on any supplier’s willingness to provide these certifications.
The CPSC rules do not contain any “safe harbors” for importers and manufacturers of children’s products; rather, they erect subjective requirements without providing useful instructions on how to comply. There are no presumptively acceptable sampling and testing confidence levels and no assurances that any particular process controls will meet the “high degree of assurance” standard. Manufacturers and importers are obligated to adopt “periodic” retesting plans and testing of “representative” samples when the rules become effective in Ferbuary 8, 2013. There is no indication when the CPSC will determine what “representative” means or if the requirements for retesting by third party laboratories will be changed, as Congress has instructed in H.R. 2715.
Manufacturers and importers of children’s products must look realistically at their own products, risks and supply chains and develop their own compliance assurance plans, knowing that the CPSC is ready to pounce if it determines (after the fact, of course) that those plans are inadequate.
Finally, manufacturers of non-children’s products subject to mandatory CPSC rules are left with no additional guidance on how to conduct a “reasonable testing program,” aside from the preexisting requirements in the mandatory rules themselves. Such manufacturers should take this opportunity to evaluate and document existing testing programs and justify the bases for these programs to prepare in the event the CPSC conducts an inquiry.