The two Commissioners at the US Consumer Product Safety Commission (CPSC) split their vote on a request from the National Association of Manufacturers (NAM) CPSC Coalition to issue an emergency stay of enforcement of the tracking label requirements under Section 103 of the Consumer Product Safety Improvement Act of 2008 (CPSIA). The tie vote means a decision has not been reached and, as a result, the tracking label requirements will take effect as scheduled on August 14, 2009.

Section 103 of the CPSIA requires, to the extent practicable, manufacturers to place permanent, distinguishing marks on any consumer product (and its packaging) primarily intended for children ages 12 and under beginning August 14, 2009. The permanent mark must enable the manufacturer and consumer to ascertain certain minimum information, including the source of the product (e.g., manufacturer or private labeler), location and date of production, and cohort information (e.g., batch, run number, or other identifying characteristic). 

Acting Chairman Nancy Nord voted to grant the request for a stay of enforcement.  Her decision stemmed in part from the considerable confusion concerning the statutory requirements, the consensus that a “one size fits all” tracking label approach is not appropriate for the wide variety of companies that manufacture children’s goods, and the recognition that considerable lead time is necessary for companies to implement their labeling programs in accordance with any CPSC guidance. She argued that the Commission should first focus on “high value products with long useful lives and a history of recall issues.” In contrast, Commissioner Thomas Moore voted to deny the request, stating the Commission lacks the authority to postpone the statutory effective date for every product that is subject to Section 103. Commissioner Moore, however, assured companies the Commission will not “punish an unwitting mistake,” but will work with manufacturers who diligently try to comply with the statutory requirements.

At this time, CPSC has not issued any guidance with respect to the tracking label requirements. The Commission currently is considering more than 130 comments that it received in response to its request for information from the public on a tracking label implementation program. Industry guidance on the tracking label requirements could be issued by June. 

As noted above, to the extent practicable, children’s products (and their packaging) manufactured beginning August 14, 2009 must bear certain tracking information.  Please contact any of the individuals below if you have questions regarding this requirement.

Related document:

• CPSC Decision on NAM’s Request for Emergency Stay of Enforcement of the Tracking Label Requirements

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, PhD
edwards.robert@arentfox.com
202.857.6346

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