Details of One-Year Stay of CPSIA Testing and Certification for Lead Content, Phthalates, Etc . (Underlying Standards Must Still be Met)

Products Must Still Comply with Underlying Standards, Etc.

CPSC states that the stay will not alter or postpone the requirement that all products must meet applicable consumer product safety rules as defined in the Consumer Product Safety Act (CPSA), as amended by the CPSIA, or in similar rules, bans, standards, or regulations under any other Act enforced by the CPSC, including any pre-CPSIA testing requirements (see below).

(Note that the CPSC is scheduled to vote by February 9, 2009 on a request for an emergency stay delaying the effective date of underlying CPSIA lead content limits for children's products. See ITT's Online Archives or 02/05/09 news, 09020505, for BP summary.

In addition, CPSC has posted a recent court decision which ruled that the CPSIA phthalates limits also apply retroactively to goods in inventory. See today's ITT, 09020600, for BP summary.)

CPSIA Testing and Certification Not Required if Subject to Stay

CPSC is staying the applicability to manufacturers, including importers², of the product testing and certification requirements set forth in paragraphs (1), (2), and (3) of Section 14(a)³ of the CPSA, as amended by the CPSIA, for the following:

Lead content, phthalates, toy ASTM-F963, etc. Among other things, the stay will relieve manufacturers, including importers, from the CPSIA testing and certification requirements until February 10, 2010 for children's products⁴ subject to: (1) the total lead content limits; (2) the interim & permanent bans on certain phthalates (in certain children's products); and (3) the mandatory ASTM toy standard F963-07, (4) etc. (e.g, baby bouncers, "all other" children's product safety rules). However, the actual lead content and phthalate limits, mandatory toy standard and other requirements still need to be met.

(Note that under the CPSIA, children's products subject to (1) to (4) above, first require general conformity certification (based on individual testing or a reasonable testing program) for products manufactured after each rule's effective date and then, on a phased-in basis, require conformity certification based on third-party testing by a CPSC-accredited lab. Both types of certifications have been stayed until February 10, 2010.)

Nov. 12th general conformity certification. CPSC states that this one year stay also provides relief from CPSIA's expanded general conformity certification requirements which went into effect for products manufactured on or after November 12, 2008.⁵ However, the stay will not apply to any pre-CPSIA testing and certification requirements, and compliance with all underlying standards, bans, etc. is still required.

For example, under the stay, domestic manufacturers and importers of apparel products will not need to issue a general conformity certificate covering flammability until February 10, 2010. However, they will still need to meet any pre-CPSIA flammability testing requirements, and the underlying flammability standards must be met.

CPSIA Testing and Certification Still Required if Excluded from Stay

According to CPSC, CPSIA-required testing and certification will still be needed for the following, as these requirements are not covered by the stay:

Third-party testing/certification for lead paint, small parts, etc. The stay does not cover the requirement that manufacturers, including importers, of children's products use third-party laboratories to test and certify, on the basis of that testing, compliance of children's products with:

ban on lead in paint and similar surface coatings (for products manufactured after December 21, 2008);

full-size and non-full size cribs and pacifiers (for products manufactured after January 20, 2009);

small parts (for products manufactured after February 15, 2009); and

metal components of children's metal jewelry (for products manufactured after March 23, 2009).

ATV certification. The stay will not apply to the certifications of compliance required for all-terrain vehicles (ATVs) in Section 42(a)(2)(B) of the CPSA, which were added by the CPSIA.

Other Exclusions from Stay

The following are other exclusions to the stay, for which testing and certification will still be required:

Pre-CPSIA testing/certification. The stay will not apply to the requirements of any CPSC regulation, or of subsection 14(a)⁶ of the CPSA as it existed prior to amendment by the CPSIA, for product testing and certification, including existing requirements for certification of automatic residential garage door openers, bike helmets, candles with metal core wicks, lawnmowers, lighters, mattresses, and swimming pool slides.

FFA voluntary guarantees. The stay will not apply to any voluntary guarantees provided for in the Flammable Fabrics Act (FFA) or otherwise (to the extent a guarantor wishes to issue one).

Pool/spa certifications. The stay will not apply to the certifications required due to certain requirements of the Virginia Graeme Baker Pool and Spa Safety Act being defined as consumer product safety "rules."

Stay Needed Due to Public Confusion, Lack of Resources, Pending Rulemakings

According to CPSC, the stay is necessary as there has been substantial confusion surrounding the new CPSIA testing and certification requirements; CPSC's financial and staff resources are stretched; and several proposed and future rulemakings will help define, among other things, which products will be exempt from certain requirements, which tests on what products will be required, etc.

Commissioners Will Vote on Whether to Terminate Stay in February 2010

CPSC states that the stay will remain in effect until February 10, 2010, at which time the CPSC Commissioners will vote on whether to terminate the stay.

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

²A November 18, 2008 CPSC final rule limited the CPSIA conformity certification requirements, to domestic manufacturers and importers, at least initially. (See ITT's Online Archives or 11/18/08 news, 08111805, for BP summary.)

³Paragraph (1) of Section 14(a)discusses general conformity certification; paragraph (2) discusses third-party testing for children's products; and paragraph (3) refers to the schedule for implementing third-party testing.

⁴"Children's products" under the CPSIA are consumer products designed or intended primarily for children 12 years old or younger. In determining whether a consumer product is primarily intended for such children, the CPSIA outlines certain factors to be considered, including a statement by the manufacturer about the intended use of the product, etc.

⁵The November 12, 2008 expansion extended the existent requirement for general conformity certification from "products subject to CPSA consumer product safety standards" to products subject to any CPSC-enforced standard, ban, regulation, etc., such as those under the Flammable Fabrics Act (FFA), Federal Hazardous Substances Act (FHSA), Poison Prevention Packaging Act (PPPA), Refrigerator Safety Act (RSA), the new CPSIA, etc.

⁶The CPSC describes the products under CPSA Section (14)(a) for which testing and certification was previously required as those subject to any requirement of 16 CFR Parts 1201 to 1213.

(See ITT's Online Archives or 10/22/08, 10/28/08, 11/18/08, and 01/08/09 news, 08102205, 08102805, 08111805, and 09010805, for two BP summaries of CPSIA certification requirements, a CPSC final rule limiting therequirements, at least initially, and further clarification of the requirements, respectively.)

CPSC unpublished notice available at http://www.cpsc.gov/businfo/frnotices/fr09/stayenforce.pdf

CPSC Web site on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html

CPSC short summary of CPSIA testing and certification requirements available at http://www.cpsc.gov/about/cpsia/summaries/102brief.html

BP Notes

Press sources indicate that the stay may be a "moot" issue for some as: (i) underlying product compliance is still required; (ii) testing may be necessary to ensure such compliance; and (iii) some major retailers are already requiring their suppliers to test their products and provide proof that they meet CPSIA standards, bans, etc.

Note that the CPSC Commissioners are due to vote by February 9, 2009 on a request headed by the National Association of Manufacturers that CPSC issue an emergency stay delaying the effective date of the CPSIA lead content limits in children's products for 185 days or until 90 days after the CPSC issues final comprehensive rules and interpretive regulations implementing Section 101 of the CPSIA, if later. (See ITT's Online Archives or 02/05/09 news, 09020505, for BP summary.)