Commissioners Disagree on Product Tracking Labels

May 15, 2009 — By

It appears that, for the moment, we are at a stand-still with regard to tracking labels for children’s products, which the CPSIA requires as of August 14, 2009.  Earlier, I had predicted a stay as the CPSC works out the details of the label requirements.  As of today, however, a stay remains in limbo as the two-person commission voted 1 – 1 for and against such an action.

Nord, who voted for the stay, argues that there simply is not enough time for manufacturers to develop and implement a labeling system.  She further implies that manufacturers need guidance from the CPSC on exactly what is required before they can comply, and that more time is needed for the CPSC to work out those details as a “one-size-fits-all” system will not work.

Moore counters by stating that, “Unlike other provisions of the CPSIA, section 103 does not require the Commission to adopt regulations as an aid to compliance.”  He points out that the new law does not stipulate, for example, that the labels be a certain size or in a particular location on the product and suggests that this serves as Congress’ understanding that one-size does not fit all.

Should we land on Nord’s side of the fence, manufacturers of all sizes will be relieved of the labeling requirement for another year.  Her hope is that, by then, there will be solid guidelines for a more standardized labeling system, possibly a globally accepted one.  For large manufacturers for whom placing thousands of labels will require costly operations, design and manufacturing changes, a stay could save millions of dollars in future reworking.

By contrast, should the labeling requirements be enforced on schedule, as supported by Moore, companies will be allowed to implement any reasonable system that works with their particular product, keeping in mind the purpose of the statute.  Especially with regard to smaller businesses, this will allow flexibility in developing cost-effective labeling methods.  Although Moore makes room for developing standards in the future, he says that if that becomes necessary, it would be done so over time.

Here is Section 103 of the Consumer Product Safety Improvement Act of 2008 (CPSIA) in its entirety:

SEC. 103. TRACKING LABELS FOR CHILDREN’S PRODUCTS.

(a) IN GENERAL.—Section 14(a) (15 U.S.C. 2063(a)), as amended
by section 102 of this Act, is further amended by adding at the end the following:

‘‘(5) Effective 1 year after the date of enactment of the Consumer Product Safety Improvement Act of 2008, the manufacturer of a children’s product shall place permanent, distinguishing marks
on the product and its packaging, to the extent practicable, that will enable—
‘‘(A) the manufacturer to ascertain the location and date of production of the product, cohort information (including the batch, run number, or other identifying characteristic), and
any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks; and

‘‘(B) the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).’’.

(b) LABEL INFORMATION.—Section 14(c) (15 U.S.C. 2063(c)) is amended by redesignating paragraphs (2) and (3) as paragraphs (3) and (4) and by inserting after paragraph (1) the following:

‘‘(2) The cohort information (including the batch, run number, or other identifying characteristic) of the product.’’.

(c) ADVERTISING, LABELING, AND PACKAGING REPRESENTATION.—
Section 14 (15 U.S.C. 2063) is further amended by adding at the end the following:

‘‘(d) REQUIREMENT FOR ADVERTISEMENTS.—No advertisement for a consumer product or label or packaging of such product may contain a reference to a consumer product safety rule or a voluntary
consumer product safety standard unless such product conforms with the applicable safety requirements of such rule or standard.’’.

You can read the entire Section 2063 of the the CPSA, which this section of the CPSIA amends, in the resources section of this blog.

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