Children’s Products Covered by Product Safety Law Defined in CPSC Final Rule

(World Trade Interactive)

The Consumer Product Safety Commission has issued a final interpretative rule that provides additional guidance on the factors considered when evaluating what is a children’s product covered by the requirements of the Consumer Product Safety Improvement Act of 2008.

The CPSIA defined “children’s product” as a consumer product designed or intended primarily for children 12 years of age or younger. This law also specifies certain factors that are to be taken into consideration when making a determination about whether a consumer product meets this definition, including the manufacturer’s intended use of the product; the packaging, display, promotion and advertising of the product; consumer perception; and the CPSC’s Age Determination Guidelines. Read more here.

Toy Makers Fight for Exemption from Rules

(New York Times – Andrew Martin)

Is a football mainly for children? What about a Halloween costume or a model train?

None of the above, manufacturers say, as a new federal crackdown on dangerous toys has left some in the industry crying foul and not wanting to play. The Consumer Product Safety Commission has been swamped with requests to exempt playthings from the new regulations, put in place after extensive toy recalls several years ago.

The Consumer Product Safety Improvement Act of 2008 gave the commission the job of defining a “children’s product” – which includes such things as toys, clothing and household goods – and eventually enforcing the act. But coming up with that definition has become so difficult that the commission has postponed votes three times. Another vote is scheduled for Wednesday, but it is unclear if the five commissioners – three Democrats and two Republicans – can reach an agreement this time. A spokesman for the commission declined to comment. Read more here.

Draft Rule Lays Out Interpretation of “Children’s Product” under Product Safety Law

(World Trade Interactive)

The Consumer Product Safety Commission will vote Sept. 9 on whether to accept a draft final interpretative rule providing additional guidance on the factors considered when evaluating what is a children’s product under the Consumer Product Safety Improvement Act of 2008.

The CPSIA defined “children’s product” as a consumer product designed or intended primarily for children 12 years of age or younger. This law also specifies certain factors that are to be taken into consideration when making a determination about whether a consumer product meets this definition, including the manufacturer’s intended use of the product; the packaging, display, promotion and advertising of the product; consumer perception; and the CPSC’s Age Determination Guidelines. Read more here.

Product Detained by CPSC at a Port? CPSC has Issued FAQS

(Lexology)

Since the Consumer Product Safety Commission (“CPSC”) began issuing its own import detention notices in June, some companies have struggled to obtain the release of detained products, particularly to determine the process the CPSC would follow and minimize the detention period. The CPSC has now issued frequently asked questions (“FAQs”) to help companies navigate the process.

Historically, Customs and Border Protection (“CBP”) had issued notices for potential CPSC violations, so CPSC hopes to eliminate CBP as the middleman

CPSC will send a detention notice to the importer of record, broker, and CBP, typically by e-mail. If CBP has also detained the product, those issues will be resolved first. CPSC will only detain products described in the notice, so the importer or broker should contact CBP to obtain the release of other products in the shipment. Conditional release or exportation of products is also possible on a case-by-case basis. Detention notices are not subject to protest, but companies will have five days to submit information supporting admissibility of the product and can request an administrative hearing. CPSC will try to make admissibility decisions within 30 days of detention.

Given these new procedures, importers of consumer products should be in close contact with their brokers and respond quickly to detention notices. Companies may also take a proactive approach by working with the CPSC compliance officer at CPSC headquarters to facilitate communications with the CPSC representative at the relevant port.

Consumer Product Safety Commission Inspectors Now Responsible for Enforcement of Product Safety Laws at U.S. Ports of Entry

(Robin E. Harvey and Lourdes Perrino, Baker & Hostetler LLP)

Beginning mid-June, 2010, the Consumer Product Safety Commission (CPSC) has been posting inspectors at U.S. ports of entry for the purpose of enforcing product safety statutes and regulations. Before, screening always had been performed by Customs inspectors, who could call in CPSC inspectors when they thought it necessary or appropriate.

Containers are being seized at both air and sea ports, requiring importers and customs brokers to produce general conformity certificates for all products and product testing compliance certificates for products specifically identified under the Consumer Product Safety Improvement Act (CPSIA) as requiring specialized testing for lead and phthalate content. So far, reports from the field indicate that seized goods are being released almost immediately after the proper certificates are produced. However, seized products not intended for use by children and not tested in conformity with CPSIA requirements are being detained by the CPSC as alleged non-conforming goods, until inspectors are satisfied that the seized goods should not be considered children’s products. Importers and customs brokers benefit from having on hand documentation to support the position that seized merchandise are not children’s products. […]

Impact of CPSC Agents at U.S. Ports

The addition of an agency charged with vigilance at U.S. ports and armed with new powers and penalties may cause concern for foreign exporters and for importers, especially in the handling of Chinese goods because goods from China triggered these developments. Certainly the general move to greater vigilance and penalties was intended to persuade exporters and importers alike to be more vigilant themselves. In addition, despite the increased budget and staffing, the CPSC remains shorthanded for its new tasks. It has been able to deploy only a small number of inspectors at each of the ten largest ports in the U.S.

Importers and exporters might deduce that consumer goods and food will be delayed at major ports. So far, that concern would be misplaced. Early reports from New York’s Kennedy International Airport and the port at Savannah GA indicate that release of detained goods generally has been prompt. The key is to have the proper documentation ready. Inspectors are proving cooperative and responsible. They are not bottling up goods unnecessarily, but they do represent a greater commitment in the United States to protect against unsafe products being imported from other countries. Read more here.

Fixing ‘Unintended Consequences’

(Industry Week – Jill Jusko)

Proposed legislation to modify 2008’s sweeping consumer product safety law is drawing mixed reactions from manufacturers

Sean Hilbert is among the manufacturers keeping a close eye on proposed draft legislation aimed at modifying the Consumer Product Safety Improvement Act of 2008 (CPSIA). So far, the president of Cobra Moto is not entirely pleased with what he sees. “It’s moving in the right direction. It’s not moving fast enough,” he says.

The draft legislation in question is the Consumer Product Safety Enhancement Act of 2010 (CPSEA), introduced by Rep. Henry Waxman (D-Calif.) in March and debated in late April at a hearing before the House Subcommittee on Commerce, Trade and Consumer Protection. It aims to address what some have called the “unintended consequences” of the CPSIA, a sweeping law that reformed U.S. consumer safety laws in the wake of a seeming groundswell of recalls of children’s products, many due to unsafe lead levels.

Among the unintended consequences, the law’s critics say (and proponents as well), is the wide range of children’s products swept up by the lead provisions – even for products not likely to be ingested or mouthed by children, as well as burdensome and expensive testing procedures that could drive smaller manufacturers out of business (and already have, in some instances). The complexity of implementing the legislation is evidenced by several stays of enforcement of lead-content limits for certain products as well as third-party testing requirements. Read more here.

Procedural Changes for Shipments Detained for Product Safety Violations

(World Trade Interactive)

U.S. Customs and Border Protection has announced that effective June 14 the Consumer Product Safety Commission is implementing the use of its detention authority under the Consumer Product Safety Improvement Act of 2008. As a result, unless there is a customs violation, CBP will no longer detain CPSC-regulated products under 19 USC 1499; instead, CPSC will detain under its own authority and CBP will act as custodian of the merchandise.

Notices of detention will be issued by CPSC to the importer with copies to CBP and the customs broker. These notices will provide a description of the suspected violation, a citation of the statute governing the suspected violation and contact information for the CPSC officer. All concerns related to a CPSC detention should be addressed to the CPSC contact and not to CBP. However, if a shipment is detained under both CBP and CPSC authority, detention notices will be issued by both agencies and resolution will need to be sought with both to obtain release of the shipment.

CPSC Takes Over Detention Notices

(Apparelnews.net)

The Consumer Product Safety Commission will begin sending detention notices to importers found to have violated CPSC statutes.

Previously, detention notices were sent by the U.S. Customs and Border Protection.
The two agencies recently held a joint webinar to explain the shift, which begins June 14.

Going forward, detention notices will be sent by a CPSC compliance investigator or field officer. The notices will include information about the violation, including a description of the violation and the corresponding statute, as well as CPSC contact information. The importer will have five days to resolve the initial detention with test results or other relevant information.

According to Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, CPSC hopes to resolve these issues within 30 days. However, the law firm, which specializes in customs and export issues, cautions importers against waiting for the 30 days to pass.

According to a release from the law firm, “Goods will not be deemed excluded if CPSC fails to make a determination within 30 days. This is significant as the importer will not be able to file a protest on the 31st day as is the case when goods are detained by CBP.”

Additional information about the CPSC and the 2010 Consumer Product Safety Improvement Act is available at the CPSC’s website.

CBP, CPSC Sign Agreement to Promote Consumer Safety

(CBP)

U.S. Customs and Border Protection Commissioner Alan Bersin and U.S. Consumer Product Safety Commission Chairman Inez Tenenbaum today [April 26] signed a memorandum of understanding for CBP’s Import Safety Commercial Targeting and Analysis Center. The MOU will allow CPSC personnel to access CBP commercial automated systems for import safety risk assessments.

“This is an important first step in strengthening our ability to promote consumer well-being and safety,” said Commissioner Bersin. “With this memorandum of understanding, CBP and the Consumer Products Safety Commission will be able to further protect consumers against the importation of dangerous goods into the U.S.”

The MOU gives CPSC the capability to conduct import safety risk assessments and perform targeting work using CBP’s Automated Commercial System.

“This cooperation between federal partners is making U.S. consumers more safe. By identifying and checking consumer products at our ports, we can reduce the flow of dangerous products into our homes,” said CPSC Chairman Inez Tenenbaum.

The Import Safety CTAC reflects the three core principles announced by President Obama’s Food Safety Working Group in July 2009: prevention, surveillance and response. Created in March 2009, the Working Group was tasked with advising President Obama on how to upgrade the U.S. food safety system for the 21st Century.

CBP established the CTAC Oct. 1, 2009, as a fusion center for agencies to share targeting resources, analysis, and expertise to achieve the common mission of protecting U.S. citizens from unsafe imports. In addition to CBP, the government agencies represented at CTAC include the Consumer Product Safety Commission, the Food and Drug Administration, and the U.S. Department of Agriculture’s Food Safety Inspection Service.

Related: Lawmakers Consider Bill to Address Problems with Product Safety Law (World Trade Interactive)

Factors to be Considered in Determining Civil Penalties for Consumer Product Safety Violations

(Levine & Slavit)

The Consumer Product Safety Commission has issued a final rule providing its interpretation of the factors it must consider in determining the amount of civil penalties for knowing violations of the Consumer Product Safety Act, the Federal Hazardous Substances Act and the Flammable Fabrics Act.

These penalties increased substantially as of Aug. 14, 2009, to a maximum of $100,000 per violation (from $8,000) and $15 million (from $1.825 million) for a related series of violations. This final rule clarifies certain information and terms based on comments received concerning and further CPSC review of, the Commission’s Sept. 1, 2009, interim final rule. Read more here.

Pending House Bill Would Require Foreign Manufacturers to Consent to Jurisdiction in U.S. Courts

(Lexology – Charles E. Joern, Holland & Knight LLP)

On February 24, 2010, a bill was introduced in the U.S. House of Representatives that would require foreign manufacturers of certain products imported into the United States to establish registered agents in this country who are authorized to accept service of process against such manufacturers. Of particular importance is the provision of the bill establishing that by registering an agent, the foreign manufacturer would thereby consent to personal jurisdiction of the state and federal courts in the state where the agent is located. This consent would be for the purposes of any civil or regulatory proceeding. […]

Under the legislation, the heads of the Food and Drug Administration, the Consumer Product Safety Commission and the Environmental Protection Agency would be charged with requiring foreign manufacturers or producers to establish the registered agents in a state with a “substantial connection” to the importation, distribution or sale of their products. The bill does not define or provide guidance as to just what constitutes a substantial connection to a state where a product is imported, distributed or sold. Read more here.

CPSC Outlines Lead Ban Exemptions for Children’s Electronic Devices

(World Trade Interactive)

The Consumer Product Safety Commission has issued a final rule concerning certain electronic devices for which it is not technologically feasible to meet the limits on lead content in children’s products.

The Consumer Product Safety Improvement Act of 2008 provides that as of Aug. 14, 2009, products designed or intended primarily for children 12 and younger may not contain more than 300 ppm of lead. This limit will be further reduced to 100 ppm as of Aug. 14, 2011, unless the CPSC determines that it is not technologically feasible to meet this lower limit. The CPSIA further provides that these lead limits do not apply to component parts of a product that are not accessible to a child; i.e., parts that are not physically exposed by reason of a sealed covering or casing and do not become physically exposed through reasonably foreseeable use and abuse of the product, including swallowing, mouthing, breaking or other children’s activities, as well as the aging of the product. Paint, coatings or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child. Read more here.

CPSC Delays Lead Testing Enforcement

(The Associated Press – Jennifer C. Kerr)

Makers of toys and other children’s products won a reprieve Thursday from federal regulators trying to implement legislation Congress passed more than a year ago after a holiday season marred by scores of lead-tainted toy recalls. The Consumer Product Safety Commission voted to delay for another year – until February 2011 – the certification and independent third-party testing rules on the amount of lead allowed in children’s products. Those rules were set to kick-in last February but have been delayed twice.

Manufacturers and importers still must test their products to make sure they’re safe and meet federal limits on lead. But the commission’s decision late Thursday means they won’t have to produce compliance certificates and perform third-party testing for now, though many are already doing so at retailers’ requests.

Even so, the commission’s action was aimed at giving businesses more time to comply with the many additional requirements spelled out in the 2008 product safety law. “The extension of the stay was needed in order to give the agency more time to promulgate rules,” CPSC Chairman Inez Tenenbaum said in a statement. Read more here.

CPSC Delays Reporting Deadline [Bicycles]

(Bicycle Retailer – Nicole Formosa)

The Consumer Product Safety Commission has delayed the deadline for bicycle manufacturers to file reports detailing the lead content in their children’s products until October 9.

The deadline was initially set for the end of August, but the Bicycle Product Suppliers Association lobbied the Commission for an extension due to uncertainty as to which components needed to be included in the report. In a 5-0 vote, the Commission agreed last week to grant the request.

The report is required by manufacturers who want to take advantage of the two-year stay of enforcement for a strict new lead limit, as dictated by the Consumer Product Safety Information Act. The law eventually limits the amount of lead in children’s products to 100 parts per million.

The stay specifies that each manufacturer covered by the stay must file a report with the Commission identifying each model of bicycle produced between May 1, 2008 and May 1, 2009, and each component on that bicycle that is accessible to children, the material used for each part and the lead content in parts per million. Suppliers must also explain what their plans are to change the lead content in those products and what the scientific basis is to use a material that includes lead for a particular component. Read more here.

Tools to Track Imports Are Limited

(Aaron Kessler — Herald Tribune.com)

Consumer safety agency can do little about items such as tainted drywall

The Consumer Product Safety Commission is unable to access key shipping information to target suspicious products entering the United States, has no long-term plan for ensuring the safety of those imports and has yet to implement critical provisions of a law passed last year to strengthen its regulatory authority.

Those were the findings of a new report issued by the Government Accountability Office, which acts as the investigative arm of Congress. The report found that the CPSC — the lead agency in the investigation of tainted Chinese drywall — lacks vital tools as well as manpower to effectively stop faulty imports.

The CSPC has limited presence at U.S. ports and has to rely on U.S. Customs and Border Protection officials who are, in turn, under pressure to move shipments quickly, the report says. Read more here.

GAO Urges Consumer Agency to Speedily Implement Laws on Imports

(NASDAQ – Darrell A. Hughes, Dow Jones Newswires)

The U.S. Consumer Product Safety Commission should work “expeditiously” to implement key provisions of federal law to ensure that imported consumer products are better regulated, a government report released Friday said.

The report by the Government Accountability Office also recommends that the commission resolve issues it has with the U.S. Customs and Border Protection, saying that it “does not have access to key [customs] import data it could use to target incoming shipments for inspection.”

The Consumer Product Safety Commission has agreed with the GAO’s recommendations, according to the report.

Consumer advocates have criticized the commission for not implementing portions of the Consumer Product Safety Improvement Act that address U.S. consumer protection. Read more here.

CPSIA Raises Civil Penalties, Lowers Acceptable Lead Levels

(ConsumerReports.org)

This Friday three important provisions of the Consumer Product Safety Improvement Act take effect that lower acceptable lead levels, raise the amount of civil penalties and require tracking of children's products. Here are the details:

Lead
The legislation reduces the total lead content in children's products to 300 parts per million (ppm) from 600 ppm and also limits the amount of lead in surface coatings or paint to 90 ppm.

The lead rules also apply to children's jewelry.

In 2007, dubbed the "Year of the Recall," millions of toys were recalled because they violated lead levels.

Civil penalties
The Consumer Product Safety Commission is also hiking its civil penalties for companies that fail to report hazardous products to the agency in a timely manner from $8,000 per violation with a maximum of $1.825 million to $100,000 per violation with a maximum of $15 million.

"If the record of recent CPSC-announced recalls is any indication of the approach companies have taken to date in complying with this reporting requirement, then many manufacturers, importers, distributors and retailers could be subject to increased penalties for reporting violations" commented Alan Schoem, a former CPSC compliance director, in the Product Safety Letter.

He added that a "reinvigorated Commission" led by new chairman Inez Tenenbaum could pose a challenge for companies that do not have processes and procedures in place to report a product defect or potential defect to the CPSC. A quick look at some recent recalls that we've written about (string trimmers, tea kettles, baby floats) shows that many companies wait far too long to alert the CPSC after getting reports of defective products.

Tracking labels
Also starting Friday, U.S. companies are required to put tracking information on all toys and children's products. The requirement is for a tracking label or other distinguishing permanent mark that contains certain basic information, including the source of the product, the date of manufacture, and more detailed information on the manufacturing process such as a batch or run number.

"The primary purpose of the distinguishing marks is to aid in the quick and effective facilitation of recalls involving children’s products," said Tenenbaum in a written statement.

CPSC Eases Up on Tracking Label Rule

(Kids Today)

U.S. Consumer Product Safety Commission members voted unanimously this week to approve a draft statement that will give manufacturers credit for “good faith” compliance with the tracking label requirements of the Consumer Product Safety Improvement Act that go into effect next month.

“I believe that the guidance unanimously approved by the Commission... will help to achieve the goals of improved recall effectiveness and better protection of consumers while also providing industry with assurance that the Commission does not intend to penalize manufacturers for inadvertent violations of the statute when they have made a good faith effort in attempting to comply with the tracking label requirements,” said Inez Tenenbaum, CPSC’s newly appointed chairman.

Section 103(a) of the CPSIA requires manufacturers to place permanent, distinguishing marks on children’s products and the packaging “to the extent practicable” as aid for parents and retailers to quickly recognize whether a toy they own or stock is the same as one involved in a recall.

The regulation has caused several concerns, three of which Tenenbaum acknowledged in her statement: that one size does not fit all when it comes to tracking labels; that small volume manufacturers say they can’t feasibly comply with the statute because their production patterns “do not lend themselves to lot, batch and run labeling systems”; and that confusion over how to meet the requirements comes too late to meet the August 14 deadline for enacting them.

Click here to see the CPSC’s new interpretation and policy statement about Section103(a).

According to Commissioner Nancy Nord, “It is important to note that the guidance issued today probably will not be the last word on this important issue.”

Lead-Footed Safety Issues

(Washington Times – Carter Wood, National association of Manufacturers)

It’s a safe bet that no member of Congress has ever given a speech proudly endorsing a bill to close mom-and-pop businesses, hurt low-income shoppers, cause libraries to discard children’s books and ban products ranging from dirt bikes to ballpoint pens.

Last year, Congress overwhelmingly passed a law that did all these things – forcing small businesses to close and punishing manufacturers, retailers and consumers. Yet the Consumer Product Safety Improvement Act (CPSIA) became law with few warnings – and no congressional floor speeches – about the serious economic harm it would cause.

To be sure, the CPSIA came in response to the public’s legitimate concern about dangerous toys and products, especially those contaminated by lead paint. Reports in 2007 produced a media storm and political pressure. Manufacturers and retailers alike welcomed increased funding and staffing for the CPSC. But Congress went further. Read more here.

CPSC Staff Recommends Specific Registration Form for Durable Infant/Toddler Goods

(World Trade Interactive)

The Consumer Product Safety Commission will vote May 28 on a staff recommendation for a proposed rule requiring manufacturers of durable infant or toddler products to provide consumers with registration forms with each such product. The rule would also require manufacturers to (a) maintain a record of the names, addresses, e-mail addresses and other contact information of consumers who register their ownership of such products in order to improve the effectiveness of recall efforts and (b) permanently place their name and contact information, model name and number, and date of manufacture on each covered product.