The US Consumer Product Safety Commission (CPSC) issued a Final Rule, effective immediately, on the compliance certificates that are required for certain products manufactured on or after November 12, 2008. 1 CPSC issued the Final Rule in response to thousands of inquiries it received regarding the certification requirements, specifically stating the commission has been “hampered” in its efforts to implement the Consumer Product Safety Improvement Act of 2008 (CPSIA) because of its limited funds and need to focus on other, early statutory deadlines established in the new legislation. According to CPSC, it “expects every company to make best efforts to comply” with the general certificate requirements, but acknowledges that its resource limitations require it to “focus more on a product’s compliance with [its] safety rules.” The Final Rule continues to state that “[t]he certificate is evidence of compliance and therefore it is appropriate to concentrate initially more on the substantive requirements underlying the certificate than on the certificate or the form of the certificate itself.” 

As discussed in more detail below, the Final Rule now limits the certification requirements to only domestic manufacturers and importers in an attempt to streamline the certification program, minimize industry confusion and permit CPSC staff to focus on the most pressing CPSIA implementation challenges during this initial certification implementation phase.

Issuers of Certificates: Under the CPSIA, manufacturers, importers and private labelers, if applicable, must issue a certificate. The Final Rule, however, now requires that only the following entities issue certificates:    

• Importers: Except as otherwise provided in a specific standard, for products manufactured outside the United States, only the importer must issue a certificate certifying that the product or shipment in question complies with all applicable CPSA rules and all similar rules, bans, standards and regulations applicable to the product or shipment. The importer must make the certificate available to CPSA as soon as the product or shipment is available for inspection in the United States. After an initial implementation period, an importer’s failure to comply with the general certificate requirements will subject the shipment to refusal of admission into the United States and potential destruction.

• Domestic Manufacturers: Except as otherwise provided in a specific standard, for any product manufactured in the United States, only the manufacturer must issue a certificate certifying that the product or shipment in question complies with all applicable CPSA rules and all similar rules, bans, standards and regulations applicable to the product or shipment. The manufacturer must make the certificate available to the CPSA prior to introducing the product or shipment in question into domestic commerce.

It appears that private labelers and foreign manufacturers are not required at this time to issue a general certificate. In addition, it does not appear that certificates must identify the name of the foreign manufacturer. Nevertheless, we are seeking clarification from CPSC on this point. The city and country or region where the factory is located, as well as the street address of the factory if the manufacturer operates more than one factory in the same city, must be provided. 

The certificate must be based upon a test of each product or a reasonable testing program, and importers must review test results before issuing any certificates of compliance.

Information Required on Certificate: The Final Rule modifies the information that is required to appear on the certificate and now requires only the following: 

• Identification of the product covered by the certificate.

• Citation to each CPSC product safety regulation to which the product is being certified.

• Identification of the importer or domestic manufacturer certifying compliance of the product, including the importer or domestic manufacturer’s name, full mailing address and telephone number. 

• Contact information for the individual maintaining records of test results, including the custodian’s name, e-mail address, full mailing address and telephone number.

• Date (month and year at a minimum) and place (including city and country or administrative region) where the product was manufactured. (If the same manufacturer operates more than one location in the same city, the street address of the factory in question should be provided).

• Date and place (including city and country or administrative region) where the product was tested for compliance with the regulation(s) cited above.

• Identification of any third-party laboratory on whose testing the certificate depends, including name, full mailing address and telephone number of the laboratory.

Electronic Certificates: The CPSIA requires the certificate to “accompany” each product or shipment and to be “furnished” to each distributor and retailer of the product in question. The Final Rule specifies that an electronic certificate may satisfy the “accompany” requirement if the certificate is identified by a unique identifier and can be accessed via a World Wide Web URL or other electronic means. The URL or other electronic format and the unique identifier must be created in advance and be made available, along with access to the electronic certificate, to the Commission or the US Customs and Border Protection authorities as soon as the product or shipment is available for inspection. An electronic certificate will be considered “furnished” if the distributor(s) and retailer(s) of the product are provided a reasonable means to access the certificate. 

The electronic certificate must have a means to verify the date of its creation or last modification. While any entity may maintain the electronic certificate platform and enter the requisite data, the certifying entity (i.e., importer or domestic manufacturer) is legally responsible for the accuracy and completeness of the certificate.

Recordkeeping: CPSC recommends that each issuer maintain test records supporting the certification for at least three years. 

The changes noted above were likely the result of comments the commission received from interested stakeholders, including a comment letter that Arent Fox submitted on October 28, 2008. Our letter stressed that industry needs time to comply with the certification requirements and that there was virtually no compliance guidance for private labelers that are not involved in any part of the distribution stream of a licensed product. CPSC continues to request comments from interested stakeholders on the CPSIA’s provisions. The commission has demonstrated its willingness to consider, and implement, industry suggestions, and we strongly recommend that companies continue to submit comments to CPSC on the CPSIA requirements.

CPSC specifically noted that after the CPSIA’s certification requirements have been in place for a period, it would consider revising the Final Rule. We will continue to monitor CPSC’s activities with respect to the Final Rule. In the meantime, please do not hesitate to contact any of the attorneys below if you have any questions regarding the Final Rule or the CPSIA in general:

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

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

1 Section 14(a)(2) of the Consumer Product Safety Act imposes additional testing requirements to support certificates of compliance for “children’s products”.