After numerous stakeholder petitions, industry meetings with regulatory and legislative officials, and widespread media coverage, late on Friday, January 30th, the US Consumer Product Safety Commission (CPSC) voted unanimously (2-0) for a one-year delay in enforcement of the testing and certification requirements for certain products, including various children’s products, established under the Consumer Product Safety Improvement Act of 2008 (CPSIA). 

This “stay of enforcement” is effective February 10, 2009 and will remain in effect until February 10, 2010, at which time the Commission will vote on whether to continue or terminate the stay.

It is critical to understand that this “stay of enforcement” on the testing and certification requirements for certain products does NOT postpone the effective dates for compliance with the new lead restrictions, phthalate limits, and ASTM F963 toy standards, which become effective on February 10, 2009.  We will explain below how compliance is still required despite the removal of the requirement to test and certify in many cases.

What No Longer Requires Testing or Certification Under the Stay?

Prior to this stay of enforcement, Section 102 of the CPSIA required domestic manufacturers or importers (if the goods were foreign-origin) to issue General Conformity Certifications (GCC) on all products manufactured after November 12, 2008 that were subject to any applicable Consumer Product Safety Act (CPSA) rules and/or similar rules, bans, standards, and regulations under any other laws administered by the CPSC, including the Federal Hazardous Substances Act and the Flammable Fabrics Act.  As we have explained in prior Arent Fox Alerts, GCC’s must be supported by actual testing or a reasonable testing program. This one-year stay of enforcement now eliminates the testing and GCC requirements for most products (with some notable exceptions discussed in the next section) regulated by CPSC until February 10, 2010. For example, testing and GCC’s will NOT be required to evidence compliance with the following standards:

• Lead in substrate materials of “children’s products” (600 ppm restriction, lowered to 300 ppm as of August 2009)

• Phthalates in children's toys and child-care articles (1000 ppm restriction)

• ASTM F963 standards applicable to children’s toys

• Flammability standards applicable to both general wearing apparel and children’s sleepwear (although any “Guaranty” issued by a company must still be supported by reasonable and representative testing).

• PPPA standards applicable to child-resistant packaging for certain pharmaceuticals and other household products

• Other standards not specifically listed in the section below concerning testing and certifications that are going to be required

What Still Requires Testing or Certification Under the Stay?

CPSC specifically excluded several standards and products from the stay. As a result, domestic manufacturers and/or importers will be required to continue testing and issuing certifications for the following standards and products:

• Certain Children’s Products Requiring Tests by Third-Party Laboratories:

• Toys and other children’s products (including apparel) with lead in painted or coated surfaces made on or after December 21, 2008

• Cribs made on or after January 20, 2009

• Pacifiers made on or after January 20, 2009

• Products subject to the Small Parts standards made on or after February 15, 2009

• Children’s Metal Jewelry made on or after March 23, 2009

• Examples of Other Products Requiring Tests and Certification:

• ATV’s (All-Terrain Vehicles) made on or after April 13, 2009

• Other Products including those with Pre-CPSIA Testing and Certification Rules:

  • Residential Garage Door Openers

  • Bike Helmets

  • Candles with Metal Core Wicks

  • Lawnmowers

  • Lighters

  • Mattresses

  • Swimming Pool Slides

  • Pool Drain Covers

What Has Not Changed as a Result of the Stay?

While the stay of enforcement certainly reduces the burden on companies to test and certify many products, it has NOT changed the requirements to comply, test or certify, as follows:

• Companies must still comply with any and all CPSC and CPSIA standards, even if they are not required to test and certify to many of these standards. This means that the February 10, 2009 effectiveness of the new total lead limits, phthalate limits, and ASTM F963 toy standards will remain and all products subject to these limits must comply if they will be sold on or after February 10th. The stay merely removes the risk of exposure to penalties for the lack of testing or certifications—it does not remove the risk of penalties for knowingly selling violative goods. 

• The stay of enforcement does not impact the General Counsel’s previous decision that the lead ban for substrate materials applies to children’s products produced before February 10, 2009 (i.e., it is retroactive to existing inventory).

CPSC’s Expectations for State Attorneys General

According to its press release, the CPSC expects State Attorneys General to “respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements” and to “focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.”

CPSC’s Underlying Rationale for the Stay

CPSC issued the stay because of the “substantial confusion” surrounding the testing and certification requirements under the CPSIA.  According to the Notice of Stay of Enforcement of Testing and Certification Requirements, CPSC “has received literally thousands of e-mail, telephone, and written inquiries as to how to comply, when to comply, what is required in support of the various certifications, what form the required certificates must take, and who must issue them.” It also “received innumerable inquiries seeking relief from the expense of testing children’s products that either may not contain lead or may be subject to exemptions” possibly announced in the future. The Commission’s usual compliance and regulatory activities, its obligation to issue fourteen proposed and final rules in accordance with the strict CPSIA deadlines, and budget constraints prevent CPSC staff from responding to these multiple inquiries.

The Commission further acknowledged that the four rulemakings on lead present complex scientific and technical issues that will not be resolved by February 10, 2009. It also recognized that the changes scheduled to take effect on February 10, 2009 — including restrictions on the phthalates content of children’s toys and child care articles and adoption of the ASTM F963 voluntary toy standard as a mandatory CPSC consumer product safety standard — apply to an extensive variety of products and impact an infinite number of businesses, including small businesses and craft and handmade toys businesses. CPSC noted that it requires time to validate testing methodologies for lead and to identify a testing methodology for phthalates, including a screening method for preliminary testing that would circumvent the destructive testing required for the chemical analysis to measure phthalate concentrations. In addition, the Commission must coordinate with testing laboratories to ensure uniform understanding of the testing requirements and educate the multiple businesses that will be impacted by these new requirements.

Finally, the stay is intended to allow the Commission to focus in the immediate future on certain “high priority enforcement matters,” including those related to cribs, small parts, and lead in children’s metal jewelry. CPSC’s staff also intends to concentrate on areas such as children’s wearing apparel and children’s books, which may be exempted or otherwise offered some regulatory relief from the requirement to comply with certain provisions of the CPSIA.

Referenced Document:

• Notice of Stay of Enforcement of Testing and Certification Requirements

Please contact any of the Arent Fox attorneys below if you have questions regarding the stay.

Georgia Ravitz
ravitz.georgia@arentfox.com
202.857.8939

James R. Ravitz
ravitz.james@arentfox.com
202.857.8903

Scott A. Cohn
cohn.scott@arentfox.com
212.484.3984

Robert G. Edwards
edwards.robert@arentfox.com
202.857.6346

Amy S. Colvin
colvin.amy@arentfox.com
202.857.6338