Denial is not the answer

The CPSIA is a poorly-conceived law enacted for noble reasons, with which we all agree. Fine. But denying that the law applies to you, or worse yet, telling your customers that the law does not apply to you is downright reckless. Why? Because the retailers who sell your products are also on the hook for complying with this law. It does not say “if you manufacture children’s products”, then you’re on the hook.

For phthalates, it says:

(a) Prohibition on the Sale of Certain Products Containing Phthalates- Beginning on the date that is 180 days after the date of enactment of this Act, it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children’s toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP). (Section 108, emphasis mine)

For lead, it says:

(1) TREATMENT AS A BANNED HAZARDOUS SUBSTANCE- Except as expressly provided in subsection (b) beginning on the dates provided in paragraph (2), any children’s product (as defined in section 3(a)(16) of the Consumer Product Safety Act (15 U.S.C. 2052(a)(16))) that contains more lead than the limit established by paragraph (2) shall be treated as a banned hazardous substance under the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.). (Section 101 (a)(1) emphasis mine)

From the FHSA, under “prohibited acts”, it says:

(c) The receipt in interstate commerce of any misbranded hazardous substance or banned hazardous substance and the delivery or proffered delivery thereof for pay or otherwise. (Title 15, Chapter 30, Section 1263 (c))

That means you, retailers. And if the CPSC comes knocking, they’re not going to accept “my vendor says your law doesn’t apply to them” as the answer to their query “do these children’s products contain lead?” Proof. They want proof. A General Certificate of Conformity (GCC) (pdf) backed up by a “reasonable testing program” until 14 August 2009, then by third-party testing after that point.

Now, there are exemptions, under the FHSA. And that is if you received the products in good faith, and/or if you have a signed statement from the vendor that these items comply. Hmm, does that sound like the GCC, which your vendors must be supplying to you (if not now, then starting 10 February 2009)? Exactly.

Here’s my advice to you. By 10 February 2009, demand a GCC from your suppliers of children’s products. All products intended for children 12 and under. Period. Demand the GCC before 10 February 2009, if the items are on this list, and therefore currently subject to a CPSC standard, rule, regulation, or law. In that case, you should already be receiving a GCC, as of 12 November 2008. (Notice that this applies to all products being regulated, not just children’s products). After 10 February 2009, all children’s products, without exception will suddenly be subject to regulation by the CPSC (through the CPSIA) and will require a GCC.

Let me be very clear about this: The CPSC has the power to exempt product and materials from the lead regulations. They haven’t. And unless you see such an exemption stated clearly on the CPSIA web site, then don’t believe rumors. The people spreading those rumors are in denial, and that can hurt you. Protect yourself and do the right thing. I know it is going to be difficult. But not nearly as difficult as a fine or jail time.

I will write more about the GCC in a future post.

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CPSC Request for Comments on Component Testing

Among the problems with the new Consumer Product Safety Improvement Act (CPSIA) legislation is the issue of unit versus component testing of products. Fashion Incubator has a thorough treatment of the issue.

Briefly, many manufacturers of sewn products produce multiple styles from the same basic set of components (in fact, it’s a best practice, for line cohesion and cost reduction, among other things). So one or two fabrics may be used to produce six finished products (white knit fabric makes a child’s T-shirt, toddler T-shirt, infant onesie, infant cap, socks, etc. You get the picture. Unit testing means you have to test each of these products for compliance with CPSC regulations, duplicating efforts and wasting money, with no improvement in “safety”. To date, this is the working interpretation of the CPSIA section 102 being used by the CPSC. Component testing allows one to test the white knit fabric once, the thread once, and then certify all of the products made from those two components. Common sense, no?

Today, the Consumer Product Safety Commission (CPSC) solicited comments on the issue. The comment period is open through 30 January 2009. This is our chance! If you are a manufacturer, and can comment intelligently on the issue, please weigh in. Here is the request, in full, from the original pdf:

Request for Comments and Information*
Mandatory Third-Party Testing for Certain Children’s Products
Section 102 of the Consumer Product Safety Improvement Act
(“CPSIA”)

The Commission staff invites comments on Section 102 of the CPSIA, Mandatory Third- Party Testing for Certain Children’s Products. The staff requests comments specifically on third-party testing of component parts.

CPSIA section 102(a)(2) imposes testing requirements to support certificates of compliance for “children’s products” as defined in section 235(a) of the CPSIA (to be codified at section 3(a)(2) of the Consumer Product Safety Act). Ninety days after the Commission issues those requirements for a given product or category of products on the rolling schedule specified in section 14(a)(3), the certificate for the product or products in question manufactured after that date must be supported by testing performed by a third-party laboratory whose accreditation has been accepted by the Commission absent the Commission’s exercise of its authority to extend such a deadline by an additional sixty days in certain instances. Given the schedule for implementation of the third-party testing requirements, the staff is interested in comments and information regarding:

• How the risk of introducing non-compliant product into the marketplace would be affected by permitting third-party testing of the component parts of a consumer product versus third-party testing of the finished consumer product.
• The conditions and or circumstances, if any, that should be considered in allowing third-party testing of component parts.
• The conditions, if any, under which supplier third-party testing of raw materials or components should be acceptable.
• Assuming all component parts are compliant, what manufacturing processes and/or environmental conditions might introduce factors that would increase the risk of allowing non-compliant consumer products into the marketplace.
• Whether and how the use and control of subcontractors would be affected by allowing the third-party testing of component parts.
• What changes in inventory control methods, if any, should be required if third party testing of component parts were permitted. Address receipt, storage and quality control of incoming materials, management and control of work-in process, non-conforming material control, control of rework, inventory rotation, and overall identification and control of materials.
• How a manufacturer would manage lot-to-lot variation of component parts, in a third-party testing of component parts regime, to ensure finished consumer products are compliant.
• Whether consideration of third-party testing of component parts should be given for any particular industry groups or particular component parts and materials. Explain what it is about these industries, component parts, and/or materials that make them uniquely suited to this approach.

Comments must be received by the Office of the Secretary no later than January 30, 2009. Comments may be filed by email to Sec102ComponentPartsTesting@cpsc.gov. Comments may also be filed by facsimile to (301) 504-0127 or by mail or delivery to the Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East-West Highway, Bethesda, Maryland, 20814. Comments should be captioned “Section 102 Mandatory Third- Party Testing of Component Parts.” Interested persons will also have additional opportunities to comment following publication of any notices of rulemaking proceedings in the Federal Register which are commenced under this section.

*This document, which was prepared by CPSC staff, has not been reviewed or approved by and may not necessarily represent the views of the Commission.

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