Trade Supports CPSC Proposal for "Representative" Sample Testing, but Seeks More Options

(This 2011 proposed rule was one of four related notices issued concurrently on CPSIA testing, certification and labeling.¹)

Proposed Rule Would Require "Representative" Samples for 3rd Party Testing

The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires that periodic testing be conducted using random sampling. However, H.R. 2715 amended the CPSIA to instead require the use of "representative" sampling. Therefore, under the proposed rule, children’s product manufacturers (including importers²) would have to select “representative” product samples to be submitted to the third-party lab for periodic testing. The proposed rule also includes a recordkeeping requirement associated with testing representative samples.

(See ITT's Online Archives 11080230 and 11111427 for summaries of H.R. 2715 and CPSC's representative sampling proposed rule, respectively.)

Assns Generally Support Representative Sampling, but Seek More Options

CPSC received 10 comments in response to its proposed rule, five of which were submitted by trade associations³. Comments submitted by the trade associations generally supported CPSC's proposed requirement for "representative" samples to be used for third-party testing instead of "random" samples. One association stated that this shift would reduce the testing burden as some manufacturers (particularly for suppliers of raw materials or components) have substantially similar products that may be representative of the whole body of product to be certified. All of the associations however provided suggestions on how the proposed rule could be modified to allow affected businesses more flexibility.

Concerns Include Need for Definition, Costs, Impact on Small Businesses, Etc.

Associations provided the following suggestions with respect to CPSC's proposed rule:

• "Representative" sampling should be defined. It was noted that CPSC did not define what the proposed rule means by "representative samples" and that this would likely lead to a misunderstanding in the implementation of the regulation. Additionally, while CPSC included some examples of representative testing (e.g. a sample of paint from a well-mixed container, and others), it was recommended that CPSC have a series of public meetings to review the concept of representative sampling as a large range of children's products would be subject to CPSC's proposed rule.
• "Random" sampling should continue to be allowed. One association requested CPSC continue to consider random sampling as a subset of representative sampling. It noted that random sampling methods allow manufacturers the flexibility to select a procedure that is most appropriate for their product production setting.
• Component testing should be used for periodic testing. While the proposed rule accepts the use of component testing for certification purposes, comments noted that it remains silent regarding its use for periodic testing. Associations stated that the use of component testing as an element of a periodic testing program by manufacturers of children’s products would create a much more manageable system. It was recommended that the proposed rule be amended to allow for the use of a component testing program to meet the periodic testing requirements.
• Alternative testing should be allowed for small businesses. Associations noted that the proposed rule would have a negative economic impact on a substantial number of small entities. Therefore, CPSC was requested to consider alternative testing strategies that allow small business to incorporate and use current testing protocols which ensure that all products meet all requirements.

¹In addition to the proposed rule on "representative" samples, (1) a CPSC final rule requires that, after initial third-party testing and certification of a children’s product, all manufacturers (or importers) of children’s products must periodically (every one to three years) submit samples of their product to a CPSC-accredited third-party lab. This final rule takes effect on February 8, 2013, or 15 months after its publication. CPSC states that it delayed the effective date so parties could begin taking steps to develop internal processes and CPSC and interested parties could consider how H.R. 2715 (P.L. 112-28) interacts with the final rule. H.R. 2715 requires CPSC to seek comments on ways to reduce the CPSIA third-party testing costs, etc. See ITT's Online Archives 11110925 for summary of the final rule.

(2) Another CPSC notice requested comments on ways to reduce the cost of third-party testing of children’s products. This notice was required by H.R. 2715. (See ITT’s Online Archives 11111009 for summary of this CPSC notice and 12020109 for summary of the comments submitted in response to it.)

(3) CPSC also issued a final rule, effective December 8, 2011, that provides a voluntary certification option for domestic manufacturers and importers who must certify finished consumer products as complying with CPSC requirements, and which allows them to base their certificates on one or more of the following: (i) component part testing or certification or (ii) another party’s finished product testing or certification - as long as certain conditions are met. (See ITT’s Online Archives 11110817 for summary.)

²CPSC states in the preamble that the term “manufacturer,” for purposes of this proposed rule, includes private labelers and importers of products manufactured by foreign manufacturers.

³Comments were submitted by: the American Apparel & Footwear Association (AAFA); the Retail Industry Leaders Association (RILA); the Specialty Graphic Imaging Association (SGIA); the Arts & Creative Materials Institute (ACMI); the China World Trade Organization/Technical Barriers to Trade National Notification & Enquiry Center; etc.

(See ITT's Online Archives 12020109 for summary of trade suggestions in response to CPSC's request for comments on how to reduce the costs of third-party testing for children's products.

See ITT’s Online Archives 12020231 for summary of Commissioner Nord stating that CPSC did not seriously consider the costs and benefits of new rules under the Consumer Product Safety Improvement Act (CPSIA) before finalizing them.)

All comments are available by searching "CPSC-2011-0082" at www.regulations.gov.