Details of CPSIA Tracking Label Requirement for Children's Products (Expected to Take Effect August 14th)

(On May 13, 2009, the two Commissioners of the Consumer Product Safety Commission (CPSC) voted on an emergency stay of the CPSIA tracking label requirement for children's products, but were unable to reach a decision as one voted for and the other against the stay. Due to this tied vote, the tracking label requirement is expected to take effect as mandated. See ITT's Online Archives or 05/15/09 news, 09051510, for BP summary of the Commissioners' vote.)

Another Vote on Stay Could Occur if New Commissioners Join CPSC

On May 5, 2009, President Obama announced his intention to nominate Inez Tenenbaum (see background below³) as Chair of the CPSC, Robert Adler as CPSC Commissioner, and to fill the fifth and final commissioner position by sometime "later this summer." (See ITT's Online Archives or 05/07/09 news, 09050715, for BP summary.)

While it is possible that the Commission could take up the tracking label issue again if and when there are more than two Commissioners, the direction such a vote would take is not known.

Sources at Assistant Senate Majority Leader Durbin's (D) office state that it is the intent of Senator Durbin (who has been critical of Acting CPSC Chairman Nord) and other Senators to move as quickly as possible with Tenenbaum's nomination, with a goal of having a CPSC chair in place before August 14, 2009. However, the sources recently stated that they have no record that the nominations had been formalized.

CPSIA Law Requires Certain Permanent Marks (for Tracking Purposes)

The CPSIA amends 15 USC 2063(a) to require that effective August 14, 2009⁴, manufacturers of children's products place permanent distinguishing "marks" on those products and their packaging, to the extent practicable, that will enable:

the manufacturer to ascertain the location and date of production of the product, cohort information (including the batch, run number, or other identifying characteristic), and any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks; and

the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).

CPSC Comments on CPSIA Tracking Label Requirement

Over a number of months, CPSC Commissioners and staff have issued various commentary on the CPSIA tracking label requirement.

Labels for certain small toys and products. In a September 2008 short summary of the CPSIA tracking label requirement, CPSC stated, "Congress modified the requirement for tracking labels with the phrase 'to the extent practicable,' recognizing that it may not be practical for permanent distinguishing marks to be printed on small toys and other small products that are manufactured and shipped without individual packaging." CPSC has not offered recent guidance on this issue.

Implementing guidance, label format. CPSC has also previously stated that while it may issue implementing guidance on CPSIA tracking labels for children's products, it is not required to do so by the CPSIA.

In addition, in a May 12, 2009 public meeting on the tracking label requirement, CPSC staff stated that it would be highly unlikely for the CPSC to proscribe a specific format for the tracking label any time soon. Though it would be likely to do so at some point in the future, a mandated format is "years away."

Tracking label scope, purpose. CPSC has previously stated that the scope of this tracking label requirement is quite broad in that it applies to all children's products (for children 12 and younger) including, but not limited to, items such as clothing or shoes, not just toys and other regulated products. CPSC has also explained that this requirement is intended to assist in the event of a recall.

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

²"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.

³The White House states: "Tenenbaum was elected South Carolina's State Superintendent of Education in 1998 and completed her second term in 2007. Throughout her career, Tenenbaum has been an energetic and determined advocate for children and families and has extensive experience in administrative and regulatory matters. During her tenure as South Carolina's State Superintendent of Education, student achievement in South Carolina improved at the fastest rate in the nation, with scores increasing on every state, national, and international tests administered. . . She previously practiced health, environmental, and public interest law with the firm Sinkler & Boyd. Before attending law school, Tenenbaum served as the director of research for the Medical, Military, Public and Municipal Affairs Committee of the South Carolina House of Representatives. She carried out the Committee's responsibilities for all legislation relating to public health, the environment, child welfare, social services, adult and juvenile corrections, state military affairs, and local government. . . Tenenbaum currently serves as special counsel to the McNair Law Firm in the area of public school finance."

⁴Note that CPSC has alternatively interpreted this date as: (i) manufactured on or after August 14, 2009; and (ii) manufactured after August 14, 2009. CPSC sources did not respond to inquiries about the exact effective date.

(See ITT's Online Archives or 05/19/09 news, 09051920, for BP summary of the May 12, 2009 CPSC public meeting on the CPSIA tracking label requirement.

See ITT's Online Archives or 02/25/09 and 09/15/08 news, 09022505 and 08091515, for BP summaries of a CPSCnotice requesting comments and information on CPSIA tracking labels and the CPSIA tracking label requirement, respectively.)

CPSC short summary of the tracking label requirement (September 2008) available at http://www.cpsc.gov/about/cpsia/summaries/103brief.html

CPSC frequently asked questions document on tracking label requirement (dated 12/04/08) available at http://www.cpsc.gov/about/cpsia/faq/103faq.html

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