CPSC Final Rule Requires Continued Kid Product Testing, Has All-Product Label Option, Etc.

The final rule, which has been significantly revised from the May 2010 proposed version, implements Section 102(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) on “additional requirements.” CPSC has often referred to this rulemaking as the “15 month” rule as it was meant to be issued 15 months after enactment of the CPSIA -- or by November 2009.

(Note that this is one of four related notices issued concurrently on CPSIA testing, certification and labeling. The others are: (i) a notice seeking comments on ways to reduce the CPSIA third-party testing requirements which could conceivably change some of these testing requirements; (ii) a final rule on relying on component part testing or certification, or another party’s finished product testing or certification, to meet the CPSIA testing and certification requirements; and (iii) a proposed rule that would provide for the testing of representative (instead of random) samples for continued compliance testing of children’s products.)

Children’s Product Third-Party Testing for Certification Purposes

The final rule adds a new 16 CFR Part 1107 on testing and labeling pertaining to product certification. New Part 1107 establishes the following third-party testing requirements to support a Children’s Product Certificate of compliance with applicable children’s product safety rules (see pg. 69524 for complete list of such rules):

Initial testing -- Manufacturers (or importers¹) of children’s products will have to submit a sufficient number of samples of the product to a third-party lab whose accreditation has been accepted by CPSC. The number of samples submitted must be sufficient to provide a high degree of assurance that the tests accurately demonstrate the ability of the product to meet all applicable children’s product safety rules. If any sample fails, the manufacturer (or importer) will have to investigate and address the cause of the failure. The manufacturer (or importer) may not issue a Children’s Product Certificate until they establish with a high degree of assurance that the product complies with all applicable children’s product safety rules. Component part testing (addressed in a separate, related final rule²) may be used to support these testing and certification requirements.

Periodic additional testing every 1-3 years -- After initial certification, all manufacturers (or importers) of children’s products will have to periodically submit samples of their product to a CPSC-accredited third-party lab. This will have to be done every one to three years, depending on the frequency needed to ensure a high degree of assurance of compliance and on the procedures opted for as follows: (1) at least every year for manufacturers who do not undertake other production testing; (2) at least every two years for manufacturers who implement a production testing plan; or (3) at least every three years if they use a lab accredited to ISO/IEC 17025:2005(E),³ which CPSC says are mostly in-house testing labs. CPSC may require modifications to the chosen option if the product fails to provide a high degree of assurance of compliance. Component part testing (addressed in a separate final rule²) may be used to support the periodic testing requirements.

Testing after material change. Whenever a children’s product undergoes a material change in product design or manufacturing process, including the sourcing of component parts, that a manufacturer exercising due care knows or should know could affect the product’s ability to comply with an applicable children’s product safety rule, the manufacturer (or importer) must submit a sufficient number of samples of the materially changed product to a CPSC-accredited third-party lab for testing. The testing can be limited to the component part of the finished product that was changed if the change does not affect the ability of the rest of the product to comply. The manufacturer (or importer) will not be able to issue a new Children’s Product Certificate for that product until it meets the applicable children’s product safety rule(s).

Protection against undue influence on lab. Each manufacturer (or importer) of children’s products will have to establish procedures to safeguard against the exercise of undue influence on a third-party lab.

Recordkeeping. Manufacturers (or importers) of children’s products will have to maintain the following records for five years and make them available (can be electronically) to CPSC upon request: (i) a copy of the Children’s Product Certificate for each product; (ii) records of each certification test; (iii) records of periodic testing (and the periodic test plan if opted for); (iv) records of all material changes and certification test results; and (v) records of the undue influence procedures. Records may be maintained in a language other than English as long as they are translated accurately with 48 hours of a request by CPSC, or longer as negotiated.

Partial exception for small batch manufacturers. H.R. 2715, or Public Law 112-28, recently amended CPSC's third-party testing requirements for children's products by requiring CPSC to establish alternative testing requirements for small batch manufacturers (firms up to $1 million in revenue and less than 7,500 units in the previous year), or if alternatives are unavailable or impracticable, an exemption from certain of the CPSIA third party testing requirements.

The preamble of the final rule states that until CPSC determines what alternative requirements are suitable for small batch manufacturers, they are not required to obtain third party testing results to confirm that their children’s products conform to most children’s product safety rules except with respect to: the lead content of paint; full-size and non-full-size cribs; pacifiers; small parts; children’s metal jewelry; and baby bouncers, walkers, and jumpers.

CPSC states that it will implement the small batch manufacturer provisions of H.R. 2715 in a separate proceeding, and it held a public hearing on the topic on October 26, 2011. (See ITT’s Online Archives 11102712 for summary of the public hearing.)

Optional “Meets CPSC Requirements” Labeling for All Consumer Products

The final rule also establishes a voluntary program by which any manufacturer (or importer) or private labeler of a consumer product may label the product as complying with applicable CPSC certification requirements. If the manufacturer (or importer) has certified that a consumer product complies with all applicable consumer product safety rules, standards, bans or regulations, a visible and legible label may be affixed to the product which states that the product: “Meets CPSC Safety Requirements.”

Rule Takes Effect 15 Months after Publication to Consider H.R. 2715

CPSC has decided to make the final rule effective 15 months after publication in the Federal Register so that parties can begin taking steps to develop internal processes, such as recordkeeping, and so that CPSC and interested parties can consider how H.R. 2715 (Public Law 112-28) interacts with the final rule.

This is because in addition to the small batch manufacturer provisions, H.R. 2715, requires CPSC to seek comments on ways to reduce the CPSIA third-party testing costs, requires it to exempt certain products such as ordinary books from the third-party testing requirements, requires certain testing of representative (instead of random) samples, etc. (See ITT’s Online Archives 11080230 for summary of H.R. 2715.)

(Note that CPSC staff and the two minority Commissioners had recommended the Commission re-propose this rulemaking to give it time to consider the effects of H.R. 2715 instead of finalizing the rule now and giving it a 15 month effective date. See ITT’s Online Archives 11102829 for summary of Commissioner Northup’s statement that finalizing this rule now is an “indefensible” policy choice.)

Many Proposed Topics Removed from Final Rule

The following is a partial list of issues that were included in CPSC’s May 2010 proposed rule, but are not part of the final rule (some are referred to as "reserved" for future rulemaking):

• Reasonable testing program for non-children’s products;
• Selection of random samples for children’s products;
• Testing of random samples to ensure continued compliance;
• Requirements for remedial action for children’s products;
• Partial exemption from periodic testing for low-volume products

¹Under the final rule, manufacturer means the parties responsible for certification of a consumer product pursuant to 16 CFR Part 1110 (i.e, the importer in the case of imports or the domestic manufacturer in the case of domestic products).

²See ITT’s Online Archives 11110817 for summary of CPSC’s related final rule allowing “finished product certifiers” (domestic manufacturers or importers) to base their certificates on one or more of the following: (a) component part testing and/or certification; (b) another party’s finished product testing and/or certification.

³General Requirements for the Competence of Testing and Calibration Laboratories

(See ITT’s Online Archives 11092610 for summary of the draft final rule.

See ITT’s Online Archives 10052028 for summary of the May 2010 proposed rule.)

(FR Pub 11/08/11, D/N CPSC--2010--0038)

CPSC contact - Randy Butturini (301) 504--7562; email RButturini@cpsc.gov