On July 21, 2009, the Consumer Product Safety Commission (“CPSC” or “Commission”) released a draft Statement of Policy (“Guidance”) on Section 103 of the Consumer Product Safety Improvement Act (“CPSIA”), providing some insight into the agency’s interpretation and intended enforcement of the provision requiring tracking labels on children’s products. The controversial provision, which aims to improve the effectiveness of product recalls, requires manufacturers and importers to place tracking labels on all children’s products to allow the retailer and ultimate purchaser of the product to ascertain: (1) the manufacturer or private labeler, (2) the location and date of production, and (3) the cohort information (batch, run number, or other identifying characteristic) of the product. The looming August 14 effective date allows little time for incorporation of the Guidance, but the Commission has indicated some room for only partial compliance as long as companies make good faith efforts to comply.

Interpretation and Enforcement

On February 26, 2009, the CPSC published a Federal Register notice seeking comments regarding the implementation of the CPSIA’s tracking label provision, and on May 12, 2009, the Commission held a public forum to collect additional information. (See our May 26, 2009 client advisory, which discusses these developments, available here.) The Commission has issued this Guidance in response to that feedback. In the Guidance, the CPSC states that the tracking label provision is intended to ease the recall process and is not intended to impose additional burdens on companies already in compliance, but rather to bring those not in compliance up to a higher standard. The Commission emphasized that the tracking label provision does not impose a uniform labeling requirement (as it recognizes that “one size does not fit all”) and that the CPSC expects manufacturers to use their judgment to develop compliant markings that best suit their individual products. The Guidance also states that the Commission will “exercise discretion with regard to penalizing manufacturers for noncompliance” and does not intend to penalize manufacturers that have made good faith efforts to comply.

Format and Content

“Distinguishing Marks”

The CPSC has focused on the provision requiring that children’s products bear “distinguishing marks” that allow retailers and consumers to ascertain certain manufacturing information about the product. The Commission acknowledges that, while the CPSIA references them as tracking labels in the title of the provision, the use of the term “distinguishing marks” does not necessarily imply a literal “label” but rather implies permanent markings, the totality of which should convey the required manufacturing information.

“Ascertainable”

The Commission expects that the information on the product will allow the manufacturer to determine the specific source of each product, as well as the date on which the product was manufactured. The manufacturer has the discretion to determine the information included on the product, which will vary depending on the type of product and its packaging. When evaluating the manufacturer’s labeling decision and whether the specific source of the product is ascertainable, the Commission will look at the manufacturer’s specific situation, as well as the practices of companies that manufacture similar products. Although the Commission states that manufacturers have this discretion, it considers the location ascertainable when it includes the name of the country and the city and state (or administrative region, as appropriate) where the product is manufactured. The Commission also recognizes that the date of production could be a date range or the date on which the components of a product were assembled or placed into one package.

“Permanent”

According to the Guidance, the Commission considers a mark on a product to be “permanent” if it “can reasonably be expected to remain on the product during the useful life of the product.” The Commission also considers marks on disposable packaging to be permanent as long as the marks are durable enough to reach the consumer. If the marks on the product are visible through the disposable packaging, then the packaging does not need to bear its own mark.

Packaging v. Product Labeling

The Commission has interpreted the statute to require, in most cases, that the manufacturer place markings on both the product and the packaging. It does, however, recognize circumstances in which dual labeling might not be possible or practicable:

Products that are too small to be marked may be marked on their packaging only;
Toys that are meant to be stored in a box, such as board games, should be marked on the board and the box, but the individual pieces do not need to be marked;
Art and crafts kits should be marked on the box and on one integral part of the kit, but each individual piece does not need to be marked;
Small products that are packaged together, such as marbles, buttons, and beads, may be marked on the packaging only;
Products sold through bulk vending machines do not need to be individually marked, but the package or carton in which the products are shipped to the retailer should be marked;
Products do not need to be marked if the mark would weaken or damage the product or impair its utility;
Products that would be impossible to mark permanently, such as jewelry, hair ornaments, or craft items like pipe stems or natural rocks, do not need to be marked; and
Products do not need to be marked if the aesthetics of the product would be ruined by the mark and the mark cannot be placed in an accessible but inconspicuous location.

Additionally, the Commission has stated that items sold in pairs, such as shoes, only need to bear the distinguishing mark on one item of the pair. All items that can be sold separately, however, must be separately marked.

Frequently Asked Questions (“FAQs”)

In addition, on July 21, 2009, the CPSC updated its list of FAQs regarding the tracking label requirement. Although several of the questions and answers merely refer readers to information contained in the draft Guidance, others clarify that labeling a product with a website address is sufficient (provided that a consumer without Internet access can still ascertain the manufacturer of the product) or provide additional guidance specifically for hand crafters of children’s products. The updated FAQs also indicate that the Commission plans to post more questions and answers as necessary.

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

CPSC Releases Policy Statement and FAQs on CPSIA Tracking Label Requirements