CPSC Extends Stay of Enforcement on Lead-Content Testing and Certification and Lifts Stay on Other Products
January 7, 2010

On December 28, 2009, the Consumer Product Safety Commission (“CPSC” or “Commission”) issued a notice extending the stay of enforcement on lead-content testing and certification of certain children’s products pursuant to Section 102 of the Consumer Product Safety Improvement Act (“CPSIA”). The stay is for an additional year, to February 10, 2011[1]. Chairman Inez Tenenbaum said in a statement, “The extension of the stay was needed in order to give the agency more time to promulgate rules important to the continued implementation of the CPSIA and for the agency to educate our stakeholders on the requirements of those new rules.” Although the Commission approved an extended stay on testing and certification for certain products, all products must continue to comply with applicable standards and bans.

Section 102 of the CPSIA and the CPSC’s related rule require every domestic manufacturer or importer of consumer products subject to any product safety rule under the CPSIA or similar rule, ban, standard, or regulation under any act enforced by the CPSC – and (1) imported for consumption and warehousing or (2) distributed in commerce – to issue certificates of conformity with the applicable standards. Those certificates must accompany all shipments of such products and be furnished to each distributor and retailer of the product. On February 9, 2009, the Commission announced a stay of enforcement for certain products that would remain in effect until February 10, 2010, when the Commission would vote on whether to terminate the stay. The stay only applied to the testing and certification requirements – the applicable mandatory safety requirements, such as the reduction in lead content and phthalates, continued to apply.

Since issuance of the stay, the Commission issued more than 20 Federal Register notices, statements of policy, guidance documents, proposed rules, interim final rules, and final rules pertaining to the CPSIA, and most of those documents related to testing and certification issues. Given that flurry of activity and the need for additional rulemaking and lab accreditation, the Commission in December announced the following phased-in approach of the testing and certification requirements.

Products for which the Commission Is Lifting the Stay of Enforcement

The Commission voted to lift the stay of enforcement on February 10, 2010, for the following children’s products:

    • Bicycle helmets;[2]
    • Bunk beds;[3]
    • Rattles[4]; and
    • Dive sticks.[5]
Children’s products subject to these regulations manufactured after February 10, 2010, will require testing by an accredited third-party lab and certification based on such testing.

The Commission voted to lift the stay of enforcement on February 10, 2010, for the following requirements that apply to non-children’s products:

    • Ban on lead in paint and on furniture;[6]
    • Requirements for child-resistance on portable gas containers;[7]
    • Regulations for special packaging required under the Poison Prevention Packaging Act;[8]
    • Ban on extremely flammable contact adhesives;[9]
    • Ban of unstable refuse bins;[10] and
    • Standard for refrigerator door latches.[11]
Products subject to these statutes and regulations will require testing based upon a reasonable testing program, and domestic manufacturers and importers must issue a general conformity certificate to these statutes or regulations beginning February 10, 2010, for all products manufactured after that date.

Stay of Enforcement for Lead Content Until February 10, 2011

The Commission plans to keep the stay in effect for total lead content in metal children’s products and in non-metal children’s products tested pursuant to CPSC-CH-E1001-08, Standard Operating Procedure for Determining Total Lead (Pb) in Children’s Metal Products, or CPSC-CH-E1002-08, Standard Operating Procedure for Determining Total Lead (Pb) in Non-Metal Children’s Products until February 10, 2011.

Consumer Products Subject to a Pre-Existing Testing, Labeling, Recordkeeping, or Certificate Requirement and Now Subject to Additional Certification Requirements

The February 2009 stay did not apply to pre-existing testing, labeling, recordkeeping, or certification requirements, only to the new requirements imposed by the CPSIA. The Commission voted to lift the stay of enforcement regarding the CPSIA requirements on February 10, 2010, for the following products:

    • Architectural glazing;[12]
    • Matchbooks;[13]
    • CB antennas;[14]
    • Lawnmowers;[15]
    • Swimming pool slides;[16]
    • Candles with lead wicks;[17]
    • Cellulose insulation;[18]
    • Garage door openers;[19]
    • Cigarette lighters;[20]
    • Multi-purpose lighters;[21]and
    • Fireworks.
Thus, manufacturers and importers of these products may need to modify their existing certifications to include the information required by the CPSIA.

Additional certifications will also be required for ATVs, mattresses, and bunk beds.

Products for which the Commission Is Continuing the Stay of Enforcement

The Commission voted to continue the stay of enforcement until further notice for the third-party testing for:

    • Carpets and rugs;[22]
    • Vinyl plastic film;[23]
    • Wearing apparel;[24]
    • Caps and toy guns;[25]
    • Phthalates;[26]
    • ASTM F963;[27]
    • Clacker balls;[28]
    • Baby walkers;
    • Bath seats;
    • Children’s sleepwear;[29]
    • Electronic toys;[30] and
    • Durable infant products.[31]
The Commission will not take enforcement action against the manufacturers (including importers) or private labelers of such products for not having certificates as required by the CPSIA. Products must still comply with the underlying regulation, including any testing requirement contained in those regulations.

Certifications Not Required for FHSA Labeling Requirements

Confirming previous oral representations, the Commission has concluded that general conformity certificates are not required for labeling requirements under the Federal Hazardous Substances Act.

Kelley Drye & Warren LLP

Kelley Drye & Warren's Consumer Product Safety practice group is experienced in providing advice on the difficult issues of how and when potentially hazardous consumer products must be reported to the CPSC. If product recalls are necessary, we work with our clients and CPSC staff to quickly develop and implement cost-effective communications programs that satisfy product liability concerns and minimize potential penalties. When the CPSC threatens or brings enforcement actions, we advise our clients on appropriate strategies. For more information about this Client Advisory, please contact:

Christie Grymes Thompson
(202) 342-8633
cgthompson@kelleydrye.com

[1]See Consumer Product Safety Act: Notice of Commission Action on the Stay of Enforcement of Testing and Certification Requirements, 74 Fed. Reg. 68,588 (Dec. 28, 2009).

[2]16 C.F.R. pt. 1203. The existing regulation for bicycle helmets states that the label “is the helmet’s certificate of compliance.” Because the CPSIA requires additional information that the existing regulation, the Commission provided two options for the manufacturer or importer to include the additional information..

[3]Id. pt 1513.

[4]Id pts. 1510, 1500.18(a)(15), 1500.86(a)(1).

[5]Id. pts. 1500.18(a)(9), 1500.86(a)(7)-(8).

[6]Id. pt. 1303.

[7] Section 2 of the Children’s Gasoline Burn Prevention Act.

[8] 16 C.F.R. pt. 1700.

[9] Id. pt. 1302.

[10] Id. pt. 1301.

[11] Id. pt. 1750.

[12] Id. pt. 1201.

[13] Id. pt. 1202.

[14] Id. pt. 1204.

[15] Id. pt. 1205.

[16] Id. pt. 1207.

[17] Id. §§ 1500.12(a)(2), .17(a)(13).

[18] Id. pt. 1209.

[19] Id. pt. 1211.

[20] Id. pt. 1210.

[21] Id. pt. 1212..

[22] Id. pts. 1630-31. The continuation of the stay does not extend to guarantees under the Flammable Fabrics Act.

[23] Id. pt. 1611. The continuation of the stay does not extend to guarantees under the Flammable Fabrics Act.

[24] Id. pt. 1610. The continuation of the stay does not extend to guarantees under the Flammable Fabrics Act.

[25] Id. pt. 1500.18(a)(5).

[26] Section 108 of the CPSIA.

[27] Id. Section 106 of the CPSIA.

[28] 16 C.F.R. pts. 1500.18(a)(7), 1500.86(a)(5).

[29] Id. pts. 1615-16. The continuation of the stay does not extend to guarantees under the Flammable Fabrics Act.

[30] Id. § 1500.18(b); id. pt. 1505.

[31] Section 104 of the CPSIA.