CPSC Stay on Testing and Certification Requirements: What Does it Mean to Manufacturers and Retailers?January 31, 2009 — By Jennifer P. Toney
As news broke Friday afternoon that the CPSC has granted a one year stay on certain product testing and certification requirements, manufacturers breathed a collective sigh of relief. But what does the stay really mean? How much relief can manufacturers expect? And, what about the retailers, will this stay hurt more than help? Let’s take a look at some of the key issues and how they are affected by the stay.
General Conformity Certificates (GCC):
Before the Consumer Product Safety Improvement Act (CPSIA), GCCs were required for products with mandatory standards in place, including bike helmets, automatic garage door openers, lawnmowers, swimming pool slides, mattresses, candles with metal core
wicks and lighters. The CPSIA expanded the requirement of GCCs to include all products subject to any consumer product safety “rules, bans, standards and regulations.” As before, the GCCs called for under the CPSIA require that, for each product, manufacturers and importers must list all of the applicable rules, and certify by means of reasonable testing that the product complies with each.
According to the CPSIA, GCCs must include certification of compliance with any new, applicable rules imposed by the CPSIA by November 12, 2008, or by the time an applicable rule goes into effect.
The stay granted Friday effectively reverts US Code Title 15, Section 2063, as it pertains to GCCs, back to the pre-CPSIA state for one year.
Third-Party Testing for Certification of Children’s Products:
The CPSIA imposed a new rule stating that GCCs alone are not enough for products intended for children aged twelve and under, and that third-party testing would be required for certification. For children’s products, certificates of compliance by accredited third-party testing facilities are required for each applicable rule. Because accreditation guidelines for testing facilities are to be rolled out over the course of a year from the time the CPSIA was enacted, manufacturers and importers must continually update their testing and certificates to include new rules as the accreditation guidelines become available.
With the stay in place, certificates of compliance by third-party testing facilities are not required until February 10, 2010, but it only applies to rules for which the Commission has not already established third-party accreditation guidelines. Accordingly, under Section 2063, as amended by the CPSIA, manufacturers and importers of children’s products are still expected to certify by accredited third-party testing that products comply with rules for lead paint and surface coatings, full size and portable cribs, pacifiers, small parts, and lead content of metal jewelry.*
What it Means:
For manufacturers of products not intended for children aged twelve and under, and that were not previously required to provide General Conformity Certificates (GCC), GCCs will not be required until at least February 10, 2010.
For manufacturers of children’s products, the stay means that neither GCCs nor third party testing certificates will be required to prove compliance with new laws regarding baby bouncers, walkers, lead content, phthalates or any other children’s product safety rule for which third-party accreditation requirements have not yet been published, for at least one more year, until February 10, 2010.
Importantly, although manufacturers and importers may not be required to certify that their products comply with these “rules, bans, standards and regulations,” they are still required to be certain that they do, in fact, comply. In other words, it is still against the law to violate any rule, ban, standard or regulation imposed by the CPSIA or otherwise, and doing so will result in civil and criminal penalties, which were dramatically increased by the CPSIA. Therefore, the question remains, how does one know for certain that a product complies with laws, especially hazardous substance bans, without testing?
Some products, such as items made of fabric or printed paper like books, are likely inherently free of lead and phthalates, and those manufacturers will probably take their chances and continue to make and sell products after the bans go into effect on February 10th, 2009. However, for makers of products that require metal components, for example, the risk of selling a product with lead content exceeding the new limits is much higher. Those manufacturers will still need to either test products or product-components themselves, or request certification from their suppliers.
Furthermore, retailers, especially large retailers with significant buying power, are unlikely to accept products from any manufacturer, large or small, without some sort of certification that the products are in compliance, regardless of what proof is required by the law. In addition, many retailers may holdup future orders until manufacturers certify the retailer’s current inventories, produced before February 10, 2009, are also in compliance. For the same reasons, we can expect to see small retailers joining forces to pressure manufacturers into providing proof of compliance. In both cases, retailers will incur some costs in both labor and delayed orders while working with manufacturers to solve the problem. Of course, retailer costs will be much higher if manufacturers are unwilling or unable to cooperate, forcing retailers to either test on their own or simply not sell current inventories. (More on the effect of the lead ban on retailers here.)
Overall, for small manufacturers and crafters who make and sell products directly to the public – and those products are not painted, are not cribs, are not pacifiers, do not contain small parts and are not metal jewelry – the stay lifts a huge burden for at least one year. For most other manufacturers, whether because their products fall into one of the categories unaffected by the stay, or because retailers are unwilling to sell their products without them, certificates of some sort are still going to be a requirement.
*New rules regarding ATVs, Pool and Spa Safety and voluntary guarantees under the Flammable Products Act, also are not included the stay.