CPSC Issues One-Year Stay of Enforcement of CPSIA Testing and Certification Requirements

February 2, 2009

By Anne Marie Murphy

We previously reported on the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), which makes sweeping changes to the laws enforced by the Consumer Product Safety Commission (“CPSC”).  CPSIA Section 102(a), paragraph (1), amends the Consumer Product Safety Act (“CPSA”) to require each importer or domestic manufacturer of any product that is subject to any CPSC rule, ban, standard, or regulation to issue a certificate based on specific tests or a reasonable testing program that the product complies with such CPSC requirements.  CPSIA Section 102(a), paragraphs (2) and (3), require that certification of compliance for certain children’s products be based on third-party testing, and set forth a timeline for implementation of the third-party testing requirements.

On Friday evening, even as the regulated industry continued to scramble to comply, the CPSC announced a one-year stay of enforcement (with certain exceptions) of the certification and testing requirements.  The CPSC explained

The Commission is aware that there is substantial confusion as to which testing and certification requirements . . . apply to which products under the Commission’s jurisdiction, what sort of testing is required where the provisions do apply, whether testing is necessary for children’s products that may not by their nature contain lead, whether testing to demonstrate compliance must be conducted on the final product rather than on its parts prior to assembly or manufacture, whether manufacturers and importers must issue certificates of compliance to address the labeling requirements under the Federal Hazardous Substance Act (“FHSA”), and what sort of certificate must be issued and by whom.

In addition to substantial confusion over the requirements, the CPSC noted industry complaints concerning the expense of testing products that will ultimately be exempt by regulation and the Commission’s own lack of resources as reasons for the stay. 

The stay covers all testing and certification requirements except the following:

1. Any testing and certification requirements that were in place prior to CPSIA.
2. Four requirements (when they become effective) for third-party testing of children’s products for which the CPSC has already issued criteria for acceptance of third party testing laboratories:
• lead paint;
• cribs and pacifiers;
• small parts; and
• metal components of children’s metal jewelry.
3. Any certifications that are expressly required by CPSC regulation (e.g., bicycle helmets).
4. Certifications required by the Virginia Graeme Baker Pool & Spa Safety Act.
5. Certifications of compliance required for all terrain vehicles (“ATVs”).
6. Any voluntary guarantees provided for in the Flammable Fabrics Act (“FFA”).

The CPSC emphasized that the stay applies to testing and certification requirements.  Products must comply with the underlying safety requirements, including the upcoming CPSIA limits on lead and phthalates in children’s products.

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