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.

[This post has a permanent home here.]