CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008 – ADDITIONAL DOCUMENTATION REQUIRED

The Consumer Product Safety Improvement Act of 2008 (CPSIA) introduced requirements aimed at improving the safety of a wide range of consumer products, including wearing apparel, toys, children’s products, jewelry, sporting goods, all-terrain vehicles and furniture.

As a result of the CPSIA, importers and manufacturers must certify in writing that any regulated products manufactured on or after November 12, 2008 which are imported into the US for warehousing and/or consumption conform with the rules, regulations, and standards administered by the Consumer Product Safety Commission (CPSC). Under the CPSIA, such certificates are required for products subject to a consumer product safety rule under the Consumer Product Safety Act (CPSA) as well as those subject to any “similar” rule, standard, etc. under any other act enforced by CPSC (e.g. the new CPSIA, Federal Hazardous Substances Act (FHSA), Flammable Fabrics Act (FFA), etc. A complete listing of regulated products is available at www.cpsc.gov/cgi-bin/regs.aspx.

Certificates of Conformity

Certificates of conformity must be based on a “reasonable” testing program, must physically accompany the product, and must be furnished to each product distributor and/or retailer. If no certificate is issued, or if a false certificate is found to be on file, the shipment may be refused entry and/or destroyed. Violators may also be subject to penalty action.

CPSC has confirmed that both paper and electronic certificates are acceptable. However, in order to fulfill the requirement to ‘accompany’ a shipment, electronic certificates must be accessible via an Internet URL or other means and must contain a unique identifier that correlates the certificate to a specific shipment. A final decision has not been made as to whether blanket certificates will be permissible.

A sample certificate and FAQ sheet is available on the CPSC website at: www.cpsc.gov/about/cpsia/faq/elecertfaq.pdf

Who Should Certify for General Conformity when Multiple Parties Exist

Manufacturers, importers and private labelers, if applicable, must all certify that a subject product conforms, which may create the need for multiple certifications. For example, both the foreign manufacturer and the importer must certify unless the CPSC exempts one or the other of the responsibility. Likewise, when a product bears a private label, the manufacturer and the private labeler both must certify unless the CPSC relieves one or the other of the responsibility. For most CPSA standards, the importer’s certification would be based on tests conducted by the manufacturer, provided that certain conditions are met.

Textiles and Apparel

In conversations with members of the Northern Border Customs Brokers Association, the CPSC has confirmed that the documentation requirement is applicable to all apparel items, not just children’s items as was initially reported. When importing textile and apparel goods subject to the Fabric Flammability Act (FFA), importers need to be prepared to secure the requisite conformity statements with respect to the recently modified flammability standards in 16CFR.

For Exemptions from Fabric Flammability Act (FFA) click here.

Upcoming Third Party Testing Requirement for Children’s Textiles and Apparel

The CPSIA imposes an additional third-party testing requirement for children’s products (designed or intended for children 12 and under) by mandating that every manufacturer (including an importer) and private labeler (if applicable) of children’s merchandise subject to a product safety rule have additional tests performed by an accredited third-party testing lab. Only after this testing may conformance certificate be issued. Congress has set a rolling schedule under which all certifications for children’s products will eventually be based on third-party testing (projected to be complete by October 2, 2009).

Please note that until the third-party testing/certification requirements become mandatory for each specific children’s product safety rule, children’s products subject to an existing CPSA consumer product safety rule or “similar” regulation (including FFA standards) must meet the requirements for general conformity testing and certification, for goods manufactured on/after November 12, 2008.

Other CPSC initiatives:

  • Lead paint ban for children’s products. CPSC has already issued the third-party test lab requirements for testing children’s products to the general lead paint ban under 16 CFR 1303 (the first children’s product safety rule for which third-party testing and certification will be required.) Therefore, children’s products subject to this ban, such as textile and apparel products with painted buttons, buckles, zippers, ornaments, etc., manufactured after December 21, 2008, will need to be third-party tested/certified as meeting this requirement.
  • Progressive ban on lead content in children’s products. The CPSIA also requires a progressive ban on children’s products containing a certain amount of lead, with the first phase beginning February 10, 2009. On this date, children’s products containing more than 600 parts per million total lead content by weight for any part of the product (e.g., apparel snaps, rivets, buttons, zippers, eyelets, etc.) will be considered banned hazardous substances. Therefore, 90 days after CPSC issues the third-party test lab accreditation requirements for testing this children’s product safety rule, textiles and apparel that are subject to the lead content ban will need to be third party tested and certified as meeting it.
  • Tracking Labels to be Required for Children’s Textiles and Apparel in Aug 2009. The CPSIA also requires tracking labels on children’s products (and packaging) designed or intended for children 12 years of age or younger, effective August 14, 2009. Such labels must enable the manufacturer (and ultimate purchaser) to ascertain the manufacturer, location and date of production, cohort information, etc. According to the CPSC, this tracking requirement is broad in scope and includes apparel and shoes.

CPSC Queries Now Part of CBP Compliance Measurement

CBP has added CPSC Import Product Safety to their compliance measurement program. Importers of goods selected for random compliance measurement examination should expect to receive a CBP Form 28 including a questionnaire to establish a baseline of best practices related to import safety. Such questions relate to retention of product safety testing records, recall procedures, and relationship to the producer of the item. CBP notes the responses will not be scored for compliance, but will be used to establish a CBP knowledge base to inform future product safety initiatives.