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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Report on STR CPSIA Webinar

The testing company STR put together a webinar to help people navigate the CPSIA (and sell their services, of course). It’s the best webinar I’ve seen, and has one interesting tidbit of vast importance to those needing to submit products to test.

On page 18, called “Traceability, Traceability, Traceability” (ain’t that the truth), they say (in PowerPointese):

• CPSC Policy to test on Final Product ONLY
• No Composite Testing for Children’s Products
How can one wrap their financial arms around this testing required?
• Buttoned Up Traceability Records
• Allows for testing on a single finished product even if that same
material is used for different SKUs – Eliminate Redundant Testing (emphasis mine)

We have heard this same statement now from another lab, NSF. They use the following Q and A from the CPSIA FAQ to justify this:

Q: Is compositing allowed for testing for lead in the surface paint/coating or in the substrates (that is the underlying materials that are painted or coated)?

A: The term “compositing” could refer to more than one type of combination. One type of compositing that labs have used is to combine like paint from several like parts or products to obtain a sufficient sample size for analysis where there is not sufficient quantity of paint on one item to perform the testing. This is appropriate in this circumstance and may even be necessary to obtain valid analytical results.

Another type of compositing is to combine different paints or substrates from one or more samples to reduce the number of tests run. This type of composite testing may fail to detect excessive levels of lead in one individual paint or substrate because they have been diluted. This approach is therefore not acceptable.

What this means is that if you make more than one item from the same materials, (say a white onesie and a white infant T-shirt) and you submit them for testing at the same time, then they will test the identical components once. So, in our example, the white fabric (if identical) would be tested (for lead, flammability, and phthalates) once and used to certify both items. Conceivably, if they were both embellished identically, you could get away with three tests (fabric, screen print, and snaps), rather than 5 tests (2x fabric, 2x screen print, 1x snaps on onesie). If you have a lot of SKUs in your line, this could quickly add up.

There is solid precedence for this. When testing baby carriers for heavy metals and flammability, it’s common to submit, say, three colorways of an identical carrier. The lab will add up all of the unique components represented in the three carriers and test each one. So, one test each for the webbing, buckles, and batting, then one test each for each fabrication/colorway combination (black canvas, black twill, blue canvas, blue twill, brown canvas, brown twill).

We are still hoping to be allowed to use component testing, and supplier certifications of components. But this is good news, nonetheless. Get organized and submit your products for testing in one big batch, so you can minimize your testing costs. Be sure to ask your testing lab if they will be using this strategy before you send them your products!

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Tracking labels for children’s products

CPSIA Section 103 requires new tracking labels for children’s products (intended for use by children 12 and younger).

While this requirement is new for many small manufacturers, it is not too difficult to implement, and is certainly a best practice.

From the CPSC website:

Section 103(a) of the new law requires manufacturers to have a tracking label or other distinguishing permanent mark on any consumer product primarily intended for children twelve and younger. The tracking label must contain certain basic information, including the source of the product, the date of manufacture and more detailed information on the manufacturing process such as a batch or run number. The scope of this provision is quite broad in that it applies to all children’s products, including, but not limited to, items such as clothing or shoes not just toys and other regulated products. Congress modified the requirement for tracking labels with the phrase “to the extent practicable” recognizing that it may not be practical for permanent distinguishing marks to be printed on small toys and other small products that are manufactured and shipped without individual packaging.

Most sewn products already have labels sewn into them that includes the name of the manufacturer (the brand), the country in which the product was made, and care and contents. If you make clothing and aren’t doing this, you are not in compliance with FTC regulations. Lucky for you, the FTC has written a handy manual to help you comply.

Expanding the information on your labels shouldn’t be too hard, and can be accomplished by sewing in one more label that has a lot tracking number. We combine two relevant bits of information into our lot numbers:

1. Date of manufacture, e.g. 20081218 would mean the batch was completed on 18 December 2008.
2. Place of manufacture is indicated not only by “Made in USA”, but by a code added to the front of the lot number, e.g. McK 20081218 would mean it was made in McKinney on 18 December 2008.

So combined, your brand name, country of origin, and spiffy new lot number will give you, your customers, and the CPSC all of the information needed to track a product back to the relevant tests performed for compliance.

This information also needs to appear on the outside of your packaging. Why? Other than being part of these new regs, it’s also best practice. Try identifying which products are subject to a massive recall if the lot number is only sewn under the care label of a product folded into a box. Been there, done that, cried myself to sleep. Put the lot number on the outside of the packaging. If you sell into any of the bigger stores, most started requiring it some time during 2007/08, if they didn’t already.

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Black market grandma

I know I’m supposed to be focusing on how to comply with the regulations being flung out of D.C., but this is too good to pass up.

Via: Krafy Momma

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CPSIA References

I made this overview of the CPSIA last week and have been referring to it every day in my quest to sort out this new legislation. So I thought it might be useful to you, too. If there is anything else you think should be here, or anything is confusing, please pipe up.

INTRO
From Wikipedia:

The Consumer Product Safety Improvement Act (CPSIA) of 2008 is a US law signed on August 14, 2008 by President George W. Bush. The legislative bill was known as HR 4040, sponsored by Congressman Bobby Rush. The law�public law 110-314�increases the budget of the Consumer Product Safety Commission (CPSC), imposes new testing and documentation requirements, and sets new acceptable levels of several substances. It imposes new requirements on manufacturers of apparel, shoes, personal care products, accessories and jewelry, home furnishings, bedding, toys, electronics and video games, books, school supplies, educational materials and science kits. The Act also increases fines and specifies jail time for some violations.

LEGISLATION
Full legislative history of the CPSIA.

The full legislation of the CPSIA (pdf).

All amended statutes.

Summary of all changes made to the original Consumer Product Safety Act of 1976, including by the CPSIA, prepared by the CPSC (pdf).

CPSC
CPSC informational site.

CPSC summaries of individual sections of the Act, along with FAQs.

CPSC FAQ about CPSIA, broken down by sections.

Get email alerts directly from the CPSC whenever they update the CPSIA web site.

RSS feed for changes to CPSIA informational site.

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Free CPSIA Webinar

STR is another global testing company accredited by the CPSC. From their web site:

STR is an independent global provider of quality assurance testing, product development, and supply chain support services for major consumer product retailers, manufacturers, importers, and raw material suppliers.

They are offering a free webinar covering the issues arising from the new CPSIA legislation. Obviously, part of this presentation will be about how STR can help you comply. But there should be lots of good, general information in here from an organization that has regular contact with the CPSC, and is on the hook to dispense reliable advice, as their names will be listed on the General Conformity Certificates (pdf) issued based on their tests. I’ll write more about that later.

Register for this webinar. Be there.

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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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