On November 3, 2009, the US Consumer Product Safety Commission (CPSC) issued a draft guidance document on the testing and certification requirements established by the Consumer Product Safety Improvement Act of 2008 (CPSIA) (the “Draft Guidance”).

If approved by the Commissioners, this document would provide companies with interim testing guidelines until the Commission issues final, extensive testing regulations next year. 

A summary of the Draft Guidance as it relates to testing appears below.  In contrast to draft CPSC interpretations and policies previously issued to implement the CPSIA, the date by which the Commissioners must vote on the Draft Guidance is not specified.  As such, it must be noted that CPSC could vote to reject this Draft Guidance or it could modify certain provisions, and it is not likely it will take any action until the forthcoming CPSC public workshop on testing, certification and labeling scheduled for December 11-12, 2009.  While we believe this Draft Guidance represents the Commission’s current view on these issues, we recommend that companies wait to implement the testing guidelines outlined in this document until after the December workshop at a minimum, and perhaps even until the Commission votes on the Draft Guidance.

What Would Be Permitted for Pre-Assembly Component Testing of Children’s Products?

To avoid the unnecessary destruction of multiple copies of the same finished children’s product in order to collect a minimum sample size, CPSC staff has proposed changes to the Commission’s current policy on testing pre-assembly components for lead, phthalates, and soluble heavy metals for ASTM F963, particularly:

1. A product manufacturer may rely on third-party testing of pre-assembly components obtained by the component manufacturer using a CPSC-recognized third-party conformity assessment body (“CPSC-recognized laboratory”), so long as assembly into the final product would not materially change the component.

2. A product manufacturer may rely on third-party testing of wet paint arranged by either the paint manufacturer or the product manufacturer using a CPSC-recognized laboratory.  The product manufacturer would be required to keep detailed records of paint purchases and lot/batch records linking the purchases to particular factory runs.

3. Alternatively, a product manufacturer may use the process of “spray sampling”, i.e., over-application of a single type of paint to a specific number of test samples in order to reduce the number of products required for obtaining a sufficient sample size.

4. Multiple testing of a single component that is common to multiple sizes of a finished product is not required. 

Some testing, such as small-parts testing, will continue to require evaluation of the complete finished product, and not pre-assembly components. 

What are the Third-Party Testing Requirements for Children’s Products?

In addition to requiring children’s products to be tested by a CPSC-recognized laboratory before they are introduced into commerce, Section 102 of the CPSIA also mandates third-party testing of children’s products on a periodic basis and when there is a material change in the product’s design or manufacturing process as follows: 

1. Periodic Testing: Until the Commission promulgates implementing regulations, CPSC staff recommends in the Draft Guidance that periodic testing be performed by a CPSC-recognized laboratory at least once a year, or more often when non-compliance poses a substantial product hazard.  CPSC does not prescribe the number of samples that should be selected for periodic testing, but recommends that companies consult with CPSC-recognized third-party conformity assessment bodies and base decisions regarding a reasonable sample size on factors, such as the specific aspects of the product, testing costs, whether testing is destructive or non-destructive, similarities to other products, assumptions about the likelihood of non-compliance, the lot size, and the number of products that will be produced. 

2. “Material Change”: A “material change” can be any change that could affect a product’s ability to conform to a product safety rule, including a product design change, a change in the manufacturing process, or a change in the supplier of a component part.  The Draft Guidance instructs that when testing because of a material change, manufacturers should only assess conformity to the requirements that might have been impacted by the change. 

The Commission is considering whether to require a reasonable testing program for children’s products in addition to the CPSIA’s third-party testing requirements.

What is a “Reasonable Testing Program” for Non-Children’s Products?

A “reasonable testing program” is one that demonstrates with reasonable certainty that all consumer products certified to comply with the applicable standards will meet all the requirements of those standards.  The Draft Guidance instructs that all general conformity certificates for non-children’s products subject to a CPSC rule, ban, or standard that do not already have a specified testing program must be based upon a reasonable testing program that contains, at a minimum, the following elements:

1. Product specifications that describe the consumer product and list the safety rules, standards, etc., with which the product must comply;

2. Certification tests, which are performed on samples of the manufacturer’s consumer product to demonstrate that the product is capable of passing the tests prescribed by the standards;

3. A production testing plan, which describes the tests that must be performed and at what intervals as long as the consumer product is being manufactured to provide reasonable assurance that the products as produced continue to meet all applicable safety rules;

4. Remedial action plans, which must be employed whenever samples of the consumer product or results from any other tests used to assess compliance yield unacceptable or failing test results; and

5. Documentation of the reasonable testing program and how it was implemented. 

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As noted above, on December 10 and 11, 2009, CPSC will hold a public workshop to discuss issues relating to testing, certification, and labeling a product as complying with the certification requirements under the CPSIA.  Members of Arent Fox LLP’s Consumer Product Safety group will attend this meeting.  In the meantime, if you have any questions regarding the Draft Guidance or the CPSIA in general, please do not hesitate to contact any of the following individuals:

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

James H. Hartten
hartten.james@arentfox.com
202.857.8983