2nd Update on Expected Effect of New CPSC Law on Textile and Apparel Products

BP is updating its previous article on the same topic that appeared in our 11/05/08 news, 08110510, to reflect CPSC clarifications during a November 6, 2008 meeting on CPSIA's lead provisions, a recent CPSC final rule which streamlined the conformity certification process and enforcement, etc.

Conformity Certificate Requirements for Textiles and Apparel

The CPSIA greatly increases the range of products that require conformity certificates² (usually called a "supplier's declaration of conformity") for products imported for consumption or warehousing, or distributed in commerce, that are manufactured on or after November 12, 2008, including certain textile and apparel products.

Through conformity certificates, the importer or domestic manufacturer, as applicable, must certify based on individual testing or a "reasonable testing program" that a product complies with each CPSC-enforced rule, standard, ban or regulation applicable to the product.

Under the CPSIA, such certificates are not only required for consumer products subject to a Consumer Product Safety Act (CPSA) standard, but also to products subject to a CPSA ban, and products subject to any "similar" rule, standard, ban, or regulation under any other act enforced by CPSC.

This means that conformity certification is required for textile and apparel products manufactured on or after November 12, 2008 that are subject to current CPSC-enforced standards, rules, bans, and regulations (such as the Flammable Fabrics Act (FFA) standards, the lead paint (and other surface-coating materials) ban of 16 CFR 1303, etc.) and to any such new standards, etc. once they take effect.

Third-party testing. The CPSIA imposes an additional requirement on children's products (designed or intended for children 12 and under³) by requiring that importers or domestic manufacturers, as applicable, of children's products subject to a children's product safety rule⁴ certify based on testing by a CPSC accredited third-party testing lab that the product or shipment in question complies with all applicable CPSC-enforced requirements.

The CPSIA sets a rolling schedule for implementing this third-party testing requirement for children's products requiring certification, which is estimated to be complete by October 2, 2009. (See ITT's Online Archives or 09/10/08 and 10/08/08 news, 08091005 and 08100810, for BP summaries of these CPSIA requirements.)

Only importers, domestic manufacturers certify. On November 18, 2008, the CPSC issued a final rule limiting, at least initially, the conformity certification requirement to importers or domestic manufacturers, as applicable, instead of making manufacturers (including foreign), importers, and private labelers each certify, as required by the CPSIA. (See ITT's Online Archives or 11/18/08 news, 08111805, for BP summary of the final rule.)

Limited enforcement focus. In addition, CPSC states in its November 18, 2008 final rule that at least in the initial implementation phase, its enforcement efforts will concentrate more on the substantive requirements underlying the certificate than on the certificate or the form of the certificate itself.

Certificates must "accompany" shipment, can be electronic. The CPSIA requires that conformity certificates (whether based on testing or a reasonable testing program, or third-party testing) "accompany" each affected product or shipment of products covered by the same certificate and that they be "furnished" to each distributor and retailer. There is currently no requirement to "file" these certificates with CBP as part of the entry process.

The CPSC has stated that electronic certificates⁵ can be used to satisfy both the "accompanying" and "furnishing" requirements as long as CPSC has "reasonable access" to the certificate electronically; it contains all of the information required by the CPSIA; certain conditions are met regarding unique identifiers; and as long as distributors and retailers are provided a reasonable means to access to the certificate.

CPSC-Enforced Standards, Bans, Etc. That May Affect Textiles/Apparel

The following are examples of current and upcoming CPSC-enforced standards, rules, bans, and regulations affecting textile and apparel.

(As stated above, textile and apparel products manufactured on or after November 12, 2008 that are subject to any current CPSC-enforced standards, bans, rules, etc., must not only comply with those standards, bans, etc. but also be tested and certified as complying. Textile and apparel subject to any future CPSC-enforced standards, bans, rules, etc., will likewise have to comply with those standards, bans, etc. as well as be tested and certified as complying once effective.)

Flammability standards. As the FFA standards are existing CPSC-enforced standards, conformity certification, based on individual testing or a "reasonable testing program" will be required for all products subject to⁶ the standards that are manufactured on or after November 12, 2008.

Once third-party testing becomes mandatory for children's products subject to FFA standards, such products manufactured after that date must be certified based on testing by a CPSC-accredited third party lab. The FFA standards include:

Standard for Flammability of Clothing Textiles. (16 CFR 1610) Clothing and textiles intended to be used for clothing. Note that certain products are exempt from the standard and therefore will not require certification or testing to it (partial list): certain interlining fabrics, certain hats, certain gloves, and certain footwear.

Also note that the following types of fabrics, or products made entirely from one or more of these fabrics, are exempt from testing, however conformity certification is still required: (i) plain surface fabrics, regardless of fiber content, weighing 2.6 ounces per square yard or more; and (ii) all fabrics, both plain surface and raised-fiber surface textiles, regardless of weight, made entirely from any of the following fibers or entirely from combination of the following fibers: acrylic, modacrylic, nylon, olefin, polyester, wool. (See ITT's Online Archives or 10/30/08 news, 08103010, for BP summary of these distinctions.)

Standard for the Flammability of Vinyl Plastic Film (16 CFR Part 1611). Clothing that contains vinyl plastic film and vinyl plastic film intended or sold for use in clothing. See standard for any exemptions.

Standards for the Flammability of Children's Sleepwear (16 CFR Parts 1615 and 1616). Children's sleepwear (as defined) or any fabric or related material intended or promoted for use in children's sleepwear, in sizes (i) 0 through 6X and (ii) 7 through 14, are subject to the more stringent children's sleepwear standards, rather than the standards for flammability of clothing textiles (16 CFR Part 1610) and vinyl plastic film (16 CFR Part 1611).

Certain diapers and underwear, certain infant garments, and certain tight-fitting garments are not defined as sleepwear, and are exempt from the stricter children's sleepwear standards, but must comply with the standards for flammability of clothing textiles (16 CFR Part 1610) and vinyl plastic film (16 CFR Part 1611). See standards for details.

Standard for the Surface Flammability of Carpets and Rugs(16 CFR Part 1630). Carpets and rugs made in whole or in part of fabric or related material and intended for use or which may reasonably be expected to be used as a floor covering, etc. See standard for any exemptions.

Standard for the Surface Flammability of Small Carpets and Rugs (16 CFR Part 1631). Small carpets and rugs made in whole or in part of fabric or related material, and intended for use or which may reasonably be expected to be used as a floor covering, with no dimension greater than 6 feet, etc. See standard for any exemptions.

Standard for the Flammability for Mattresses and Mattress Pads (16 CFR Part 1632). Mattresses (as defined) used alone or in combination with other products intended or promoted for sleeping upon. Mattress pads (as defined) for use on top of a mattress. See standard for any exemptions.

Standard for the Flammability of Mattress Sets (16 CFR Part 1633). Mattress sets, which are either a mattress and foundation labeled by the manufacturer for sale as a set or a mattress labeled by the manufacturer for sale without any foundation. See standard for any exemptions.

Lead paint ban. The lead paint ban under 16 CFR 1303, which was in effect before the CPSIA was enacted, pertains to lead in: (1) paint for consumer use; as well as the paint used on (2) toys and other articles intended for use by children that bear paint; and (3) furniture for consumer use that bears paint.)

As an existing CPSC-enforced ban, all products subject to it that are manufactured on or after November 12, 2008 require conformity certification, based on individual testing or a "reasonable testing program," including articles intended for use by children that bear paint, such as children's textile and apparel products with (partial list):

painted buttons, buckles, zippers, snaps, grommets⁷ or ornaments, etc.;

inks that coat the fiber (like some thermoset printing inks); etc.

However, children's articles subject to the ban that are manufactured after December 22, 2008,⁸ will need conformity certification based on third-party testing.

Note that:

(1) effective August 14, 2009, the CPSIA makes the lead paint ban more stringent by reducing the maximum amount of allowable lead from 0.06% to 0.009%;

(2) the CPSC has issued an advisory opinion stating that once the more stringent lead paint limit takes effect on August 14, 2009, any products that exceed the CPSIA lead paint limit cannot be sold from inventory or on store shelves. (See ITT's Online Archives or 09/17/08, 08091705, for BP summary.); and

(3) 16 CFR 1303 regulates "paint and other surface-coating material" - this term does not include printing inks or those materials which actually become a part of the substrate, such as the pigment in a plastic article, or those materials which are actually bonded to the substrate, such as by electroplating or ceramic glazing. CPSC staff has stated that dyes that become reactive with fiber are not considered surface coatings; they are considered to be like ink, where they become part of the substrate. (Note that CPSC staff has stated that some thermoset printing inks are considered surface coatings, as noted above.)

Lead content ban for children's products. The CPSIA also requires a progressive ban on children's products containing a certain amount of lead, with the first phase beginning February 10, 2009. CPSC staff has stated that on this date, a children's product containing more than 600 parts per million total lead content by weight in any part of the product (including the fabric, snaps, rivets, buttons, zippers, eyelets, etc.) will be considered a banned hazardous substance.

As an upcoming CPSC-enforced ban, CPSC staff have stated that conformity certification, based on individual testing or a "reasonable testing program" will be required for children's products (such as children's textile and apparel products) subject to the lead content rules that are manufactured after February 10, 2009.

Certification based on testing by a CPSC-accredited third party test lab becomes mandatory for children's products subject to the lead content rules that are manufactured after August 14, 2009.

Note that:

(1) the CPSC has recently reiterated a previous advisory opinion that children's products that exceed the CPSIA lead content limit cannot be sold from inventory or on store shelves after February 10, 2009. See ITT's Online Archives or 11/24/08 news, 08112405, for BP summary.)

(2) there are exceptions to the lead content ban for inaccessible parts, however, paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate inaccessible to a child, or to prevent absorption of any lead into the human body, through normal and reasonably foreseeable use and abuse of the product. (See ITT's Online Archives or 10/01/08 news, 08100105, for BP summary of CPSC'srequest for comments on inaccessibility, etc.)

Phthalates bans for certain children's products. The CPSIA imposes both permanent and interim bans⁹ on (i) children's toys¹⁰ and (ii) child care articles for children age three and younger¹¹ containing more than 0.1% of certain phthalates, beginning February 10, 2009.

As an upcoming CPSC-enforced ban, conformity certification, based on individual testing or a "reasonable testing program" will be required for children's products subject to the phthalates bans that are manufactured after February 10, 2009, until the requirement for third-party testing/certification of such products takes effect.

Note that:

(1) the CPSC has recently stated that the CPSIA phthalates bans do not apply retroactively to inventory. (See ITT's Online Archives or 11/24/08 news, 08112405, for BP summary);

(2) the CPSC has issued an advisory opinion stating that children's shoes would not be considered "toys"¹⁰ within the meaning of CPSIA provisions on phthalates unless they have some play value (e.g., a shoe made for a doll).

(3) the CPSC has issued an advisory opinion stating that children's apparel (including theatrical costumes) is generally not considered a toy subject to the phthalates ban because it is not intended to be played with by a child; however, sleepwear or bibs for children age three and younger, while not toys, would be considered child care articles, as they are designed or intended to facilitate sleep or the feeding of children age three and younger. See advisory opinion for CPSC views on play costumes sold as part of a toy set and intended to be worn during play, Halloween costumes, and plastic rainwear. (See ITT's Online Archives or 12/03/08 news, 08120310, for BP summary.)

Tracking Labels to be Required for Children's Products in August 2009

The CPSIA also requires tracking labels on children's products (and packaging) designed or intended for children 12 years of age or younger, manufactured after August 14, 2009. Such labels must enable the manufacturer (and ultimate purchaser) to ascertain the manufacturer, location and date of production, cohort information, etc. According to the CPSC, this tracking requirement is broad in scope and includes apparel and shoes. (See ITT's Online Archives or 09/15/08 news, 08091515, for BP summary.)

Formaldehyde Study

Not later than 2 years after CPSIA's enactment, the Comptroller General, in consultation with the CPSC, must conduct a study on the use of formaldehyde in the manufacture of textile and apparel articles, or in any component of such articles, to identify any risks to consumers caused by the use of formaldehyde in the manufacturing of such articles, or components of such articles.

¹Enacted as Public Law 110-314 on August 14, 2008.

²The CPSC also refers to these certificates as general conformity certificates.

³In determining whether a consumer product is primarily intended for children 12 years of age or younger, the CPSIA outlines certain factors to be considered, including a statement by the manufacturer about the intended use of the product, etc.

⁴For the purposes of third-party testing/certification, a "children's product safety rule" means "a consumer product safety rule under the CPSIA or similar rule, regulation, standard, or ban under any other Act enforced by the CPSC, including a rule declaring a consumer product to be a banned hazardous product or substance."

⁵In addition to an electronic version of the certificate, unless otherwise prescribed, conformity certificates can be in the form of a label on the product, an attachment on the shipping container, a separate document, or included in another document such as an invoice, bill, statement, or bill of lading.

⁶CPSC has stated that products that are exempt under a rule, standard, ban, or regulation are not "subject to" such rule, standard, etc. and will not require conformity certification to it. However, products that are only exempt from testing to a rule, standard, ban, etc. but remain "subject to" such rule, standard, etc., will require conformity certification to it (e.g. the "test exempt" fabrics under 16 CFR 1610 will require conformity certification.)

⁷Note that CPSC recently recalled certain children's board skirts because the paint on the grommets contained an excess level of lead, violating the lead paint ban.

⁸The CPSC has also stated "after December 21, 2009" on certain documents.

⁹ The CPSIA imposes both permanent and interim bans on certain phthalates in specified children's products that are manufactured after February 10, 2009 as follows: (1) children's toys or child care articles containing more than 0.1% of benzyl butyl phthalate (BBP), dibutyl phthalate (DBP), or di-(2-ethylhexyl) phthalate (DEHP) are permanently prohibited; and (2) child care articles or children's toysthat can be placed in a child's mouthcontaining more than 0.1% of diisodecyl phthalate (DIDP), diisononyl phthalate (DINP), or di-n-octyl phthalate (DnOP) are prohibited, on an interim basis until the CPSC determines whether to continue the ban. (See below for certain definitions.)

¹⁰''Children's toy'' (for CPSIA phthalates provision purposes) means a consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.

¹¹"Child care articles" (for CPSIA phthalates provision purposes) are consumer products designed or intended by the manufacturer to facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething. In addition, a toy is considered a "toy that can be placed in a child's mouth" (for CPSIA phthalates provision purposes) if any part of the toy can actually be brought to the mouth and kept in the mouth by a child so that it can be sucked and chewed. If the children's product can only be licked, it is not regarded as able to be placed in the mouth. If a toy or part of a toy in one dimension is smaller than 5 centimeters, it can be placed in the mouth.

(See ITT's Online Archives or 08/04/08 news, 08080410, for comprehensive BP summary of the CPSIA.

See ITT's Online Archives or 11/14/08, 10/08/08 and 09/18/08 news, 08111410, 08100810 and 08091805, for BP summaries of CPSC public meetings on CPSIA lead provisions, certification, and an overview, respectively.)

CPSC November 6, 2008 webcast on lead and presentations available at http://www.cpsc.gov/about/cpsia/cpsialead.html

CPSC's website on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html

CPSC list of accredited third-party labs available at http://www.cpsc.gov/about/cpsia/labaccred.html

CPSC timetable for CPSIA lead paint and lead content provisions available at http://www.cpsc.gov/about/cpsia/faq/sec101ltimta2.pdf

CPSC final rule limiting the CPSIA certification requirements (FR Pub 11/18/08) available at http://www.cpsc.gov/businfo/frnotices/fr09/certification.pdf

CPSIA available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ314.110.pdf.