The Consumer Product Safety Improvement Act of 2008
The Consumer Product Safety Improvement Act of 2008 (the "Act"), passed by Congress and signed into law in 2008, is aimed at strengthening and broadening consumer product safety laws within the United States. The Act, which is administered and enforced by the Consumer Product Safety Commission (the "Commission"), is a complex piece of legislation requiring manufacturers, importers and retailers of a wide variety of consumer products to comply with new requirements, standards and restrictions.
The Consumer Product Safety Improvement Act of 2008 (the “Act”), passed by Congress and signed into law in 2008, is aimed at strengthening and broadening consumer product safety laws within the United States. The Act, which is administered and enforced by the Consumer Product Safety Commission (the “Commission”), is a complex piece of legislation requiring manufacturers, importers and retailers of a wide variety of consumer products to comply with new requirements, standards and restrictions. In addition to strengthening the Commission’s ability to enforce consumer safety regulations, the Act also increases the maximum civil and criminal penalties for violations of those regulations. The Act raises potential civil penalties to $100,000 per individual violation and $15,000,000 for aggregate violations, and increases potential criminal penalties to five years of imprisonment.
It is therefore critical that businesses comply with the Act’s new provisions. Compliance will be a challenging task, however, since different standards will be phased in over the course of the next several years. We summarize key provisions of the Act below.
New limits on lead levels in paint, surface coatings and substrate materials
Lead Levels in Liquid Paint and Surface Coatings
The Act imposes lower limits for lead in paint and surface coatings. The new limits apply to three categories of products: liquid paint and similar surface coatings intended for consumer use; surface coatings on toys and other items intended for use by children; and the surface coatings of a variety of consumer furniture items (regardless of whether the furniture is intended for children’s use). Under the Act, on August 14, 2009, the limit on lead levels for these items will drop from 600 parts per million (“ppm”) to 90ppm, and the sale of items exceeding those levels will be banned. The Commission’s General Counsel has issued an opinion stating that once the new limit is in place, it will apply retroactively to any items in inventory. Thus, it is the position of the Commission that retailers, manufacturers and distributors will be banned from selling any items exceeding the 90 ppm limit out of their inventory after August 14, 2009.
Lead Levels in the Substrate Content of Children’s Products
In addition to the above limits on the lead levels in paint and surface coatings, the Act also prohibits the sale of children’s products that exceed a certain level of total lead content by weight. These “substrate” content limits will come into effect in three separate phases. The initial limit of 600 ppm
total lead content for any children’s product will go into effect on February 10, 2009. The limit will drop to 300 ppm on August 14, 2009, and to 100 ppm on August 14, 2011, unless the Commission deems 100 ppm to be technologically infeasible for the specific product at issue. The Commission’s
General Counsel has stated that these limits on the lead content of children’s products will also apply retroactively to any items in inventory, and the sale of any products exceeding these limits will be banned after these respective dates.
New phthalate prohibitions for children’s toys and child-care articles
In addition to the lead limitations described above, the Act also permanently prohibits the sale of all children’s toys and child-care articles containing more than 0.1 percent of three kinds of phthalates, which are chemical compounds that are used to increase the flexibility of vinyl and plastic. This prohibition goes into effect on February 10, 2009. The Act also places the same interim prohibition on the sale of children’s toys containing three additional kinds of phthalates. This interim prohibition also goes into effect on February 10, 2009, and will remain in place pending the completion of a study on phthalates’ effects on children. Unlike the limitations on lead levels, the Commission’s General Counsel
has issued an opinion stating that the phthalate restrictions should not apply retroactively, and thus retailers and manufacturers could continue selling products exceeding these limits, provided they were manufactured before February 10, 2009. This opinion has been strongly criticized by some of the lawmakers who drafted the legislation, however, and several of them have stated that the phthalate restrictions were intended to apply retroactively to inventory. Given the current level of debate surrounding this issue, it may be the subject of further legislation in the coming year.
General conformity certification
As of November 12, 2008, a domestic manufacturer or importer of consumer products must certify that each regulated consumer product it produces or imports complies with all applicable consumer safety regulations and standards. It is the responsibility of each manufacturer or importer to determine which, if any, regulations and standards apply to its products. The majority of these regulations and standards are rooted in four primary consumer product safety statutes enforced by the Commission: (1) the Consumer Product Safety Act, (2) the Federal Hazardous Substances
Act, (3) the Flammable Fabrics Act, and (4) the Poison Prevention Packaging Act. These statutes are not the only sources of consumer safety regulations, however, and the Act itself includes new standards, such as the lead content and phthalate limits described above, that will also require compliance certification.
As evidence of regulatory compliance, manufacturers and importers must issue a Certificate of Conformity for each regulated consumer product manufactured in or imported into the United States. The certification must be based on a test of the product or a reasonable testing program, but does not need to be based on tests conducted by a third party.
Children’s-products certification based on third-party testing
Unlike the certification requirements described above, which are applicable to all regulated products intended for general consumer use, the Act does require independent, third-party certification for all products intended for use by children 12 years old or younger. Thus, not only must a manufacturer
or importer certify that its children’s products comply with all applicable consumer safety laws and regulations, but that certification must be based upon tests run by an independent laboratory that has been accredited by the Commission.
The deadline for third-party testing certification differs based upon the category of children’s product to be certified, because the Commission must issue accreditation procedures and guidelines for each category before laboratories can become accredited to test products within that category. The Commission began issuing accreditation procedures in September 2008, and will continue issuing new procedures on a rolling basis through September 2009. Goods within a specific category will be required to have third-party certification 90 days after the Commission publishes the accreditation procedures for that category.
However, on January 30, 2009, the Commission voted to stay the enforcement of some, but not all, of the Act’s testing and certification requirements for children’s products that were scheduled to go into effect on February 10, 2009. In its decision, the Commission stated that it will not enforce the testing and certification requirements for the new limits on lead substrate content and phthalate levels in children’s products, and that this stay will be in place until February 10, 2010. The Commission took care to state that products must still meet the limits imposed by the Act within the time prescribed. So,
for example, it will still be prohibited to sell or manufacture children’s products exceeding a total lead content level of 600 ppm after February 10, 2009. Essentially, the stay means that while a manufacturer or importer cannot legally sell products exceeding this limit, it is not required to test or certify that its products meet this limit until February 10, 2010.
The Commission also stated that it will not stay the testing and certification requirements for other regulations on children’s products, such as the lead limits for paint and surface coatings, the lead content limits for children’s metal jewelry, and other regulations for children’s cribs and pacifiers. The products not covered by the stay will still require third-party testing and certification as dictated by the rolling schedule described above.
Both types of certificates described above — general conformity certificates and third-party children’s-products certificates — must be in English, but may also be in another language. The certificates must include the identity of the product’s manufacturer or private labeler, the date and place of manufacturing, and the date and place of testing. Certificates must accompany the product through its shipment, must be furnished to the distributor and retailer of the product, and must be available to
the Commission upon request. If a product lacks a certificate required under the Act, it is prohibited from importation or distribution within the United States.
Miscellaneous provisions of the act
The Act contains numerous provisions in addition to those described above, including a new requirement for tracking labels on children’s products; new labeling requirements for toy and game advertising; a mandate requiring the Commission to develop new safety standards for durable nursery products; whistleblower protections for employees who report violations of the
Act; and new mandatory safety standards for all-terrain vehicles. The Act also authorizes state attorneys general to enforce certain consumer product safety laws, meaning that enforcement of these new standards may include state as well as federal officials.
The Consumer Product Safety Improvement Act of 2008 is a complex law that has wide-ranging implications for manufacturers, importers and retailers, and violations of the Act carry the possibility of severe consequences. Businesses that may be affected by the Act’s many provisions should stay informed about the latest information and rulings issued by the Commission (available at cpsc.gov/about/cpsia/cpsia.html), and if any compliance or planning issues are anticipated or encountered, businesses should seek early advice from legal counsel.