New Consumer Product Safety Law Greatly Expands Regulation of Products Manufactured or Sold in the United States
November 10, 2008
In August 2008, President George Bush signed the Consumer Product Safety Improvement Act of 2008 (the “Act”) into law. It is the most sweeping revision of U.S. consumer product safety laws since 1972, when the original Consumer Product Safety Act (CPSA) was first enacted. The 2008 Act is Congress’ response to a wave of product recalls in 2007, the most highly publicized of which involved recalls of imported toys containing lead paint. The Act focuses on children’s products, but in addition, goes well beyond the regulation of children’s toys and products. Virtually all consumer products made in; imported into; or exported from the United States are affected by regulations in the Act. This article will highlight some of the Act’s most important provisions.
The Act expands both the authority and the resources of the Consumer Product Safety Commission (the “Commission”). The Commission is the independent federal agency charged with protecting the American public from unreasonable risks of harm involving over 15,000 different types of consumer products.1 The Act expands the scope of the Commission’s jurisdiction and gives the Commission powerful new and enhanced tools to enforce the requirements of the Act. The Act significantly increases both civil and criminal penalties for violations, allows for seizure and destruction of non-compliant products, allows states to file civil actions enforcing consumer product safety laws, and in other significant ways dramatically affects manufacturers, importers, distributors and sellers of consumer products in the United States.
Some provisions of the Act were effective immediately upon its enactment on August 14, 2008. Other requirements are self-executing and become effective soon after enactment without any Commission action. Still other requirements are dependent upon Commission rulemakings or other Commission action. Congress has mandated an aggressive and expedited schedule for the Commission to meet. A great deal of Commission activity implementing the Act will take place in the 12 months following the August 14, 2008 enactment.
Both the self-executing provisions, and the Commission-initiated actions, affect everyone who conducts business with consumer products. The Act expands the range of regulated products in several important sections, to all products that are subject to not only consumer product safety rules under the CPSA, but also to products that are subject to a similar rule, ban, standard, or regulation under any other act enforced by the Commission.2 Children’s products are subject to even more strenuous regulation and require independent third-party testing, permanent tracking labels and other mandatory actions. The maximum penalties for committing a “prohibited act” have increased to $100,000 per violation and to $15 million for a related series of violations. Criminal penalties now include up to five years in prison, increased fines and forfeiture of assets. Finally, Congress has authorized significantly increased funding for the Commission to use in enforcing these powerful provisions against non-compliant manufacturers, importers, and others.
Scope
The Act’s primary focuses are:
1) improving the safety of children’s products
2) enhancing the effectiveness of the Commission itself
Title I of the Act creates a variety of requirements involving children’s products. Title II significantly expands the Commission’s scope and gives the Commission both the resources and the enforcement tools to fulfill the Commission’s larger mission. The Act is an expansive piece of legislation that Nancy Nord, the acting chairman of the Commission, describes as “incredibly complex.” Manufacturers, importers, distributors and retailers of consumer products will need to understand the Act, its implementing regulations and how they apply to the universe of consumer products.
Title I: Children’s Product Safety
The initial portion of the Act is targeted at safety issues relating to children’s toys and products. The Act defines a “Children’s Product” as a consumer product designed or intended primarily for children 12 years of age or younger. Section 235(a). The Commission uses multiple factors in deciding whether a product is deemed a “Children’s Product.”3 Key features of Title I include bans on lead and phthalates4 in children’s toys and child care articles, mandatory third-party testing and certification for Children’s Products, permanent tracking labels on Children’s Products, expanded requirements for the advertising of certain toys and games on the Internet (and in print media), and the adoption of an ASTM voluntary toy safety standard as a mandatory consumer product safety rule.
Lead Limitations
Section 101 of the Act creates new limitations for the amount of lead that can be contained in Children’s Products as well as the amount of lead in paint applied to those products. This section specifically treats any Children’s Product containing more than 600 parts per million (ppm) of lead as a banned, hazardous substance under the FHSA. The 600 ppm limit is effective without any further Commission action on February 10, 2009. The lead limitation is automatically reduced to 300 ppm on August 14, 2009. It is finally reduced to 100 ppm on August 14, 2011, unless the Commission determines that the 100 ppm limitation is not “technologically feasible” for a product or product category.
The Act excludes from the ban component parts of Children’s Products where the lead is “inaccessible.” A component part will be considered “not accessible” if it is sealed by a covering or case that prevents physical exposure through a child’s foreseeable use and abuse of the product – the important issue is whether the lead in a product is biologically available. The Act provides that within a year after enactment the Commission will promulgate a rule giving guidance on what component parts may be considered inaccessible. The Act also directs the Commission to consider whether it is technologically feasible for certain electronic devices, including those that contain batteries, to comply with the lead limitations. The Commission is required to issue related regulations in this regard.
The allowable limits on lead in paint applied to Children’s Products are even more restrictive. Effective August 14, 2009, the permissible limits of lead in paint are reduced from 0.06 percent to 0.009 percent. Even these limits may be further reduced if the Commission determines that a lower amount of lead is “technologically feasible to achieve.” Section 101(f). Restrictions on lead and lead in paint apply retroactively to all product in inventory or on store shelves on February 10, 2009, not just product manufactured after that date.5
Mandatory Certification and Independent Testing
Section 102 of the Act requires certification of independent third-party testing for any Children’s Product that is subject to a Children’s Product safety rule. Manufacturers and private labelers of such Children’s Products must submit representative samples of the products to independent laboratories. Based on this testing, the manufacturer or private labeler must certify that the Children’s Product complies with all applicable Children’s Product safety rules.
The testing laboratory is required to have been previously accredited by the Commission or by an independent accreditation organization designated by the Commission. The testing laboratory (known as a “third-party conformity assessment body” in the Act) must be independent and not affiliated with, or subject to, undue influence by the manufacturer or government body. A manufacturer may use its own “in-house” testing facilities for certification, only if the Commission finds that the testing facility has established the appropriate procedures to protect against undue influence by the manufacturer, private labeler, or other interested party.
The effective dates for required certification are contingent upon the Commission first accrediting third-party laboratories to test particular classes of products. Generally speaking, the Commission will publish notice of the requirements for the accreditation of testing bodies 90 days before third-party testing is required of various products. For example, the Act required the Commission to publish accreditation procedures for the testing of lead paint by September 2008. Third-party testing of lead paint is then required 90 days later, in December 2008.6 The schedule for third-party testing requirements is expedited. Currently it is contemplated that certification and independent testing will be required for cribs and pacifiers in January 2009, for “small parts” (that present choking hazards) in February 2009, for children’s metal jewelry in March 2009, and for baby bouncers, walkers and jumpers in June 2009.
In addition to the third-party testing requirements for Children’s Products, Section 102 mandates a general conformity certification for manufacturers, private labelers and importers7 of consumer products. The general conformity certification requirement applies to all products that are subject to any consumer product safety rule under the CPSA or to any similar rule, ban, standard, or regulation under any other act enforced by the Commission and which are imported for consumption or warehousing or distributed in commerce. The general conformity certification does not have to be based on third-party testing. However, each manufacturer, private labeler, or importer of a consumer product covered by this section must certify that the product has been tested, or is subject to a reasonable testing program and complies with all applicable consumer product safety rules.8
This section is expansive and yet must be complied with by its effective date of November 12, 2008. The general conformity requirement requires manufacturers and others to first determine what bans, rules, standards and regulations under the expanded scope apply to their products; then implement a reasonable testing program to ensure compliance; and finally produce a certification that itself meets the demands of the Act.
The certificate must identify the manufacturer or private labeler issuing the certificate as well as the testing laboratory upon whose testing the certificate depends. The certificate, at a minimum, must also include the date and place of manufacturing and testing, as well as contact information for the individual responsible for maintaining test result records. The certificate must be in English, but may also contain the same content in another language.
The Commission views the certification requirements as potent tools for enforcement. If a product does not have a required certificate, that product may not enter into the United States or move in commerce within the United States. Both imported and domestically manufactured products may be halted if they do not have the appropriate certifications. A certificate must accompany each product or shipment of the same product. Although one certificate can be used for a container of the same product, if that container is broken up into separate shipments, it is likely that a separate certificate will have to accompany each separate shipment of the product to each distributor and retailer. The Act specifically requires that a copy of the certificate be furnished to each distributor or retailer of the product. A certificate must be available to United States Customs agents as well as Commission agents upon request.
Tracking Labels
By August 14, 2009, manufacturers of Children’s Products must permanently label their products and packaging with designated information designed to assist with the identification of products in the event of a recall. Under Section 103 manufacturers will be required to label all Children’s Products in a way that the manufacturer and the ultimate purchaser will be able to identify the location and date of the item’s production, including the batch, run number, or other identifying characteristic.
The Act does limit the labeling requirement by including the phrase “to the extent practicable.” This is a recognition by Congress that it may not be practical to record a permanent marking on small toys or other small products manufactured without individual packaging. In recent statements, the Commission staff emphasized that the Commission will likely address practical labeling issues (available size, type of permanent marking, use of codes, etc.) through rulemaking or other guidance. However, the requirement for tracking labels is “self executing.” Tracking labels must be placed on all Children’s Products by August 14, 2009, independent of whether the Commission rulemaking is completed or not.
This provision is extremely broad in its scope and powerful in its application. The requirement for tracking labels applies to all Children’s Products, such as clothing and shoes – not just to toys and other regulated products. The Commission plans to use the tracking label not only for recalls, but also for enforcement purposes. Importers beware: if a product is clearly a Children’s Product but lacks a tracking label, that in and of itself will be a basis for stopping the importation of the product.
Advertising Requirements
The Act expands the warnings about choking hazards that must be in the advertising on children’s toys and games. Section 105 mandates that choking warnings required by the Federal Hazardous Substances Act be included in all Internet advertising of these products by December 12, 2008. The warnings are also required in catalogues or other printed materials by February 10, 2009. The warnings are required for either Internet advertising or print media if the advertisement provides a “direct means for the purchase or order of the product.”
The preparation and publication of catalogues poses significant challenges for businesses regulated under this section. Catalogues are normally prepared and printed many months in advance of their distribution. The “last minute” addition of cautionary statements on choking hazards may be difficult if not impossible for some publishers. In recognition of this concern, the Act allows the Commission to grant up to a 180-day “grace period,” during which distribution of non-compliant catalogues will not be considered a violation of this section.9 Publishers should be aware that 180 days is the maximum grace period allowed by the Act.
Section 105 also requires two-way communication between retailers and those providing the product to retailers. Manufacturers, importers, distributors, or private labelers that provide covered products to retailers must inform the retailers if a precautionary statement is required. But retailers must also ask the manufacturer, importer, distributor, or private labeler if a precautionary statement is required for a particular product. A retailer who requests such information and receives false information, or no information, is not liable under the Act.
Toy Safety Standards
Section 106 designates ASTM International Standard F963-07, Consumer Safety Specifications for Toy Safety, as the mandatory consumer product safety standard for toy safety issued by the Commission. Manufacturers, and others regulated under the Act, should understand that whatever is required in the ASTM standard (with certain specified exemptions) will now become a mandatory consumer product safety standard. ASTM F963-07 is an extremely detailed standard that relates to a number of possible hazards which may occur with the normal use or foreseeable abuse of a toy. By incorporating ASTM F963-07 in total (with discreet exceptions), the Act will now require toy manufacturers to test their products for conformity with all the requirements in ASTM F963-07. For example, because the ASTM standard bars paint that contains compounds such as arsenic, barium, cadmium, mercury and other heavy metals, toy manufacturers will soon have to test for these materials prior to certification under the general conformity provisions of the Act. The effective date of this provision is February 10, 2009.
Ban on Phthalates
Section 108 of the Act bans the sale of children’s toys or child care articles that contain certain chemicals known as phthalates. Effective February 10, 2009, no children’s toy or “child care article” (a consumer product designed or intended to facilitate sleep or the feeding of children age three and younger, or to help such children with sucking or teething) may be manufactured for sale, offered for sale, distributed in commerce, or imported if it contains more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP) or benzyl butyl phthalate (BBP). Also effective February 10, 2009, an interim ban, pending further study, is placed on child care articles or children’s toys that can be placed in a child’s mouth that contain more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
In recognition of the complexity of this issue, the entire subject of the use of phthalates in children’s toys and child care articles will be examined by a Commission-appointed “Chronic Hazard Advisory Panel.” The panel will undertake a comprehensive examination of the use and health effects of phthalates. The study is expected to take over two years to complete.
Title II: Consumer Product Safety Commission Reform
Funding
The Act authorizes significant increases in general appropriations to the Commission in order for it to more ably fulfill its mission. In the past, critics of the Commission have claimed that the agency has not effectively protected consumers due to inadequate funding. Along with the greatly increased funding, the Act requires that the Commission increase its number of full-time employees over the next five years. The Act further mandates that personnel shall be assigned to United States ports of entry and to inspect overseas manufacturing facilities. Section 202. All of this will result in much stricter enforcement by the Commission, especially at U.S. borders.
Commission Activity
From August 14, 2008, until August 14, 2009, the Act allows for only two members of the five member Commission to constitute a quorum for the transaction of business10. In the past, the failure to obtain a quorum has hobbled the Commission. This provision solves that immediate problem. As a result, the Commission can be expected to initiate and implement a number of far reaching regulations and rulemakings on an expedited basis.
The Act further allows the Commission to develop a product safety rule without first commencing an Advance Notice of Proposed Rulemaking (ANPR). The Commission may thus move directly into rulemaking without an ANPR notice. Congress has instructed the Commission to issue a number of rulemakings affecting a variety of consumer products in a compressed time frame. Considering the provisions that have “streamlined” the Commission’s regulatory process, as well as the wide range of actions the Commission must complete in a relatively short time, manufacturers, importers, distributors, and retailers need to carefully monitor the Commission’s actions during the coming year. The opportunity to comment on, and potentially influence Commission rulemakings, will require diligence, by manufacturers, importers and others affected by these numerous regulations.
Recall Provisions
Section 214 makes several significant revisions to the CPSA. The first expands the scope of the key self-reporting provisions under Section 15(b) of the CPSA. Previously, Section 15(b) required manufacturers and others to immediately inform the Commission of information that a consumer product failed to comply with a consumer product safety rule or standard; contained a defect which could create a substantial product hazard; or created an unreasonable risk of serious injury or death. As with other provisions in the Act, the scope of mandated self-reporting is now expanded to include all consumer products that fail to comply with any other rule, regulation, standard, or ban under the CPSA or any other act enforced by the commission. This provision became effective October 13, 2008.
The Commission is also empowered under this section to (following an administrative hearing) order a manufacturer, distributor, or retailer to: (1) give public notice of the product defect; (2) mail notice to each manufacturer, distributor, or retailer of the product; (3) mail notice to all persons to whom the product was known to be delivered or sold; (4) cease distribution of the product; (5) notify all persons that transport, store, distribute, or otherwise handle the product (or to which the product has been transported, etc.) to immediately cease distribution of the product; and (6) notify appropriate state and local public health officials. Section 214 allows the Commission to order these actions without a prior hearing if the Commission determines a product to be “imminently hazardous”11 and if the Commission has both notified the manufacturer and filed a district court action under Section 12 of the CPSA.
Further, a manufacturer, distributor, or retailer may be required to post a “clear and conspicuous notice” on its own Web site as well as on any other Web site in which the product has been placed for sale. Beyond that, the Commission may order announcements on the radio and television in languages other than English if the Commission determines a substantial number of affected consumers may not be reached otherwise.
The Act eliminates the right of a party responsible for a defective product to choose whether they will repair the defect in the product, replace the product, or offer a refund. The Commission now has the right to order whichever corrective action the Commission determines to be in the public interest. The Act also requires that a plan for the corrective action be submitted to the Commission for approval.
Section 214 of the Act also imposes specific requirements for recall notices. Unless the Commission determines it unnecessary with respect to a particular product, a recall notice must contain detailed product information, a photograph of the product, and specific information with respect to the recall’s cause and scope. The Commission is mandated to establish specific guidelines for what information will be helpful to consumers in identifying the product being recalled, understanding the hazard involved and understanding what remedy is available to the consumer. The Commission must promulgate these guidelines by February 10, 2009.
Provisions Regarding Information
Information Sharing
Section 207 amends the previous law by allowing the Commission to share Commission-obtained information (information that is identifiable to a particular manufacturer or private labeler), with any “Federal, State, local or foreign government agency …” upon agreement that such agency will maintain the material in confidence and use it only for official purposes. However, the Commission can not disclose to manufacturers or others, information obtained from a foreign government agency or consumer complaints from a foreign source if the foreign agency or source has requested confidential treatment for the material. The Act makes exceptions for confidential information requested by Congress or ordered produced by a United States court.
Public Consumer Product Safety Database
A major change affecting consumers, manufacturers, and others is the creation of a Public Consumer Product Safety Database (“Database”). Section 212 of the Act establishes a Database that will be publicly available, searchable, and accessible through the Commission’s internet Web site. The Database will include reports of harm relating to the use of consumer products regulated under the CPSA and other products regulated by the Commission. These reports may come to the Commission from consumers; local, state, or federal government agencies; health care professionals; child service providers; or public safety entities.
The information may be submitted to the Database by electronic, telephonic, or paper- based means. Each report must include, at a minimum: (1) a description of the consumer product concerned; (2) an identification of the manufacturer or private labeler of the consumer product; (3) a description of the harm relating to the use of the product; (4) contact information for the person submitting the report; and (5) a verification by the person submitting the information that it is true and accurate to the best of the person’s knowledge.
Within five days after the Commission receives a report, it will, “to the extent practicable,” transmit the report to the manufacturer or private labeler who will have an opportunity to review the report. This allows the manufacturer or private labeler the opportunity to locate any inaccuracies, as well as identify any confidential information contained in the report. The manufacturer or private labeler may then request the Commission to include its comments in the Database or request that portions of the report be designated as confidential. If the Commission determines that the designated information is a trade secret, the Commission will redact the designated information before the report is put into the Database. If the Commission disagrees with the confidentiality request, the Commission shall notify the manufacturer or private labeler and include the information in the Database. The manufacturer or private labeler then has the option of bringing an action in federal court to seek removal of the information from the Database. Ordinarily, comments will be included in the Database at the same time as the underlying report is made available.
The timeframes contained in this section are compressed and require extreme diligence on the part of manufacturers to prevent either the inclusion of inaccurate information in the Database or the publication of confidential or trade secret information. Under the Act, the Commission is required to make the report available on the Database no later than 10 business days after the Commission transmits it to the manufacturer. Manufacturers and private labelers would be wise to put into place procedures which will allow for the timely review of reports received from the Commission, so as to prevent the Internet-wide, public distribution of inaccurate or confidential information.
The Act also has a provision requiring the Commission to correct erroneous information already on the Database. If the Commission determines that existing information (a report or comment) in the Database is “materially inaccurate or duplicative of information,” the Commission has seven business days after such determination to remove or correct the information or add information to correct the inaccurate information in the Database.
The Commission has until February 10, 2009, to transmit to Congress a detailed plan for establishing and maintaining the Database. The Commission shall include plans for the Database’s operation and content as well as plans for a “public awareness campaign” about the Database. The actual Database must be established no later than 18 months after the date the Commission submits its plans to Congress.
Penalties
Significantly increased civil penalties for violations of the Act are now available to the Commission. The penalty for individual violations is increased from $8,000 to a maximum of $100,000. The ceiling on civil penalties for a related series of violations is increased from $1.825 million to $15 million. The increases are effective the earlier of August 14, 2009, or when the Commission issues final regulations regarding its interpretation of the factors to be used in assessing civil penalties. Section 217.
Criminal penalties for knowing and willful violations of the Act, (as well as the Federal Hazardous Substances Act and Flammable Fabrics Act), are increased, from not more than one year of imprisonment to not more than five years. Criminal fines are also increased under the Act. In addition, criminal penalties may now include forfeiture of assets associated with the violation. Further, the Act strikes a previous requirement and now no longer requires that directors, officers, or agents have knowledge of notice of noncompliance received by the corporation from the Commission, in order to be subject to criminal penalties.
Enforcement Beyond the Commission
Two separate provisions in the Act leverage the effectiveness of the new law: (1) state attorneys general are allowed to enforce the Act through civil litigation; and (2) “whistleblower” protection is greatly expanded for employees who report violations of the Act by their employers.
State Attorneys General
Effective August 14, 2008, the state attorneys general are authorized to initiate civil actions against any manufacturer, distributor, or entity violating the Act. State attorneys general may seek injunctive relief to stop the sale of products that (1) violate Commission-issued safety standards; (2) are banned hazardous substances under the Act; or (3) are violations of other designated prohibited acts under Section 19 of the CPSA. Prior to filing a lawsuit, the state must give the Commission at least 30-days notice, unless the Commission consents to an earlier initiation of the civil action or the state determines that an immediate action is necessary because of a “substantial product hazard.”12 The state cannot file a suit duplicative of an action filed by the Commission except under limited circumstances. Section 218.
Whistleblower Protection
The Act further gives strong protection to “whistleblowers.” Employees who provide information regarding a violation of the Act (or related rules, regulations, etc.), who testify in a government proceeding, or assist in such a proceeding concerning a violation of the Act, are protected from subsequent firing or other job discrimination. Section 219 of the Act permits an aggrieved employee to file a complaint with the Secretary of Labor, who may order relief including reinstatement, compensatory damages, costs and other relief. The Act also allows for the complainant to file an action for review of the Secretary of Labor’s determination in an appropriate United States district court. The court may award injunctive relief and compensatory damages, including reinstatement with seniority, back pay with interest, and special damages including costs and reasonable attorneys’ fees. This section is effective August 14, 2008.
Import and Export Provisions
The Act has several provisions that focus on import/export issues. The Commission itself has noted that the number of consumer products imported into the United States has doubled over the last decade and that imports account for a disproportionate amount of recalls administered by the Commission. Persons or entities engaged in the import or export of consumer products are now subject to significant regulation and scrutiny under various sections of the Act. These provisions are in addition to the earlier referenced sections concerning labeling and certification, which have application to those who import consumer products into the United States.
Stockpiling
Stockpiling – defined as the manufacturing or importing of a consumer product in advance of the effective date of a new consumer product safety rule at a rate greater than the rate at which the product was produced or imported prior to the promulgation of that rule – is prohibited under the CPSA. 15 U.S.C. 2068(a)(7). As with other sections of the Act that expand the CPSA’s scope, Section 213 of the 2008 Act now extends the prohibition against stockpiling to any rule under the CPSA or similar rule, regulation, standard, or ban under any other act enforced by the Commission.
Supply Chain
Section 215 regulates the identification of manufacturers, importers, retailers and distributors in the supply chain. This section is likely the result of previous recalls of defective products involving non-compliant subcontractors and others in the supply chain. In some cases, manufacturing work is subcontracted out to such a degree that the root manufacturer loses oversight of the manufacturing process. Manufacturers will need to enhance their due diligence when subcontracting work in order to be able to comply with this provision of the Act. Section 215 requires that, upon request from the Commission, every importer, retailer, or distributor of a consumer product shall identify the manufacturer of the product by name, address, or other requested identifying information to the extent that such information is known or can be readily determined. Beyond that, every manufacturer, upon Commission request, must identify each retailer or distributor to which the manufacturer directly supplied a consumer product as well as each subcontractor involved in the production of the product or from which the manufacturer obtained a component.
Exports
Section 221 permits the Commission to prohibit the export from the United States of any consumer product not in conformity with an applicable consumer product safety rule unless the importing country gives the Commission appropriate notice of acceptance of the product. This section also includes a similar provision barring the export of fabric or related material that does not conform to the provisions of the Flammable Fabrics Act.
Product Destruction
Section 223 mandates the destruction of non-compliant imported products. Products refused admission into the United States shall be destroyed unless, upon application of the owner, consignee, or importer of record, the Secretary of the Treasury permits the export of the product in lieu of destruction. The owner, consignee or importer of record has 90 days after such approval to actually export the product or it will be destroyed. This provision was effective September 13, 2008.
Conclusion
The Consumer Product Safety Improvement Act of 2008 has a broad and far reaching scope. Because of the enhanced civil and criminal penalties and the other potent enforcement tools, persons or entities that do not understand and carefully follow the provisions of the Act may be subject to devastating action by the Commission. Manufacturers, distributors, sellers and importers of a wide range of consumer products need to be cognizant of the provisions of the Act that relate to their products and take the appropriate steps to comply with this powerful new law.
For more information, contact:
Charles E. Joern, Jr.
312.578.6629
charles.joern@hklaw.com
toll free: 1.888.688.8500
1 “Consumer products” are defined in the CPSA as any article or component part which is produced or distributed for sale to a consumer for use in or around a household, residence, school, or in recreation. Consumer products do not include tobacco products, motor vehicles or motor vehicle equipment, pesticides, firearms and ammunition, aircraft, boats, drugs, medical devices, cosmetics, or food. 15.U.S.C. 2052.
2 In addition to the CPSA, the Commission enforces provisions under the Federal Hazardous Substances Act (FHSA), the Flammable Fabrics Act (FFA) and the Poison Prevention Packaging Act (PPPA).
3 These factors include the age the manufacturer intends the product to be used by, the age of the consumer the product is marketed to, common consumer understanding of the product’s intended age use and the voluminous Age Determination Guidelines used by the Commission’s staff.
4 Phthalates are chemicals that, among other things, are used in plastics to make them more flexible.
5 In an advisory opinion dated September 12, 2008, the Commission’s General Counsel concluded that: “[P]roducts that contain lead above the limits set in the CPSIA [“the Act”] cannot be sold from inventory or on store shelves after February 10, 2009.” Therefore, regardless of when they were manufactured, such products cannot be sold after the effective date of February 10, 2009.
6 The exact date that third-party testing will be required is dependent upon the actual date the particular accreditation rule is published by the Commission in the Federal Register. Publication in the Federal Register is the official starting date for beginning the 90-day period after which testing will be required. The CPSC published the accreditation procedure for lead paint in the Federal Register on September 22, 2008. Third-party testing for lead paint is therefore required after December 21, 2008.
7 The CPSA defines “manufacturer” to include any person who manufacturers or imports a consumer product. 15 U.S.C. 2052
8 The certification must specify each rule, ban, standard, or regulation applicable to the product. It is not sufficient to use generic language such as “all applicable standards.”
9 On October 6, 2008, the Commission published in the Federal Register a preliminary finding that a grace period of 180 days is warranted.
10 The two-person quorum is allowed only if the commissioners are not affiliated with the same political party.
11 “An imminently hazardous consumer product” is one that presents imminent and unreasonable risk of death, serious illness, or severe personal injury 15 U.S.C. 2061.
12 Under such circumstances a state can file a complaint “immediately after notifying the Commission of the State’s determination.” Section 218(b)(2)(c).
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