CPSC Issues Accreditation Requirements for 3rd-Party Labs to Test Children's Metal Jewelry for Lead Content

(The CPSIA, enacted as Public Law 110-314 on August 14, 2008, requires CPSC to issue third-party test lab accreditation requirements on a phased-in, rolling basis by specific "children's product safety rule²" and requires children's products subject to each rule to be tested by a CPSC-accredited third-party lab and certified as having met those requirements. See ITT's Online Archives or 10/08/08 and 09/10/08 news, 08100810 and 08091005, for BP summaries of these CPSIA requirements.

Children's metal jewelry is the fourth³ scheduled set of "children's product safety rules" for which the CPSC is required to issue third-party lab accreditation requirements.)

Certification Requirements for Children's Metal Jewelry on/after Feb. 10, 2009

According to CPSC, on or after February 10, 2009, children's metal jewelry must comply with the CPSIA 600 parts per million (ppm) limit on total lead content, including goods sold from inventory or on store shelves. (See ITT's Online Archives or 11/24/08 news, 08112405, for BP summary of CPSC's reiterated advisory opinion that children's products above the CPSIA lead content limit cannot be sold from inventory or on store shelves after February 10, 2009.)

In addition, each importer or domestic manufacturer⁴ of children's products subject to the new lead content limit (including children's metal jewelry) that are manufactured on or after February 10, 2009⁵ must issue a certificate of conformity with the 600 ppm limit. That certificate must be based on a test of each product or a representative testing program. (Use of a CPSC-accredited third-party lab will only be required later.)

Certification Requirements for Children's Metal Jewelry after March 23, 2009

Now that the CPSC has issued these third-party lab accreditation requirements for testing children's metal jewelry for compliance with the CPSIA lead content limits, each importer or domestic manufacturer of children's metal jewelry manufactured 90 days after the notice's effective date (after March 23, 2009⁵), must have the metal and metal alloy parts of such jewelry tested by a third-party lab accredited by the CPSC to do so and must issue a certificate of compliance with the 600 ppm lead content limit based on that testing.

Certification Requirements for Children's Metal Jewelry on/after Aug. 14, 2009

When the CPSIA's 300 ppm lead content limit for children's products goes into force on August 14, 2009⁵, each importer and domestic manufacturer of children's metal jewelry subject to that limit must have metal and metal alloy parts of such products tested by a lab accredited by the CPSC to do so and must issue a certificate of compliance with the 300 ppm limit based on that testing.

(Note that at this time, CPSC is not addressing third-party testing for CPSIA's 100 ppm limit that may come into effect on August 14, 2011, depending on the technological feasibility.)

Limited Acceptance of Retroactive Testing

The CPSC will accept a certificate of compliance with the lead content limits in metal and metal alloy parts of children's metal jewelry based on total lead content testing performed by an accredited third party or governmental lab on or after May 16, 2008 (90 days prior to CPSIA's enactment) and thus prior to the CPSC's acceptance of the lab's accreditation if certain conditions are met⁶.

List of CPSC-Accredited Labs Will be Maintained on CPSC Web Site

The CPSC maintains on its Web site (see link below) an up-to-date listing of test labs whose accreditations it has accepted and the scope of each accreditation. Once the CPSC adds a lab to that list, the lab may begin testing to support certification by the importer or domestic manufacturer of compliance with the 600 ppm and 300 ppm lead content limits on metal and metal alloy parts of children's metal jewelry.

Labs Must Meet Certain ISO Standard, Test Lead Content Using CPSC Procedure

For a third party lab to be accredited by the CPSC to test metal and metal alloy parts of children's metal jewelry for compliance with the CPSIA lead content limits, it must meet the baseline accreditation requirements of each category of lab to the International Organization for Standardization (ISO)/IEC 17025:2005 (General Requirements for the Competence of Testing and Calibration Laboratories).

The accreditation must be by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation - Mutual Recognition Arrangement (ILAC-MRA), and the scope of the accreditation must include testing for lead content in metal and metal alloy parts of children's metal jewelry in accordance with the "CPSC Standard Operating Procedure for Determining Total Lead (Pb) in Children's Metal Products (including Children's Metal Jewelry)," CPSC-CH-E1001-08, available at http://www.cpsc.gov/about/cpsia/CPSC-CH-E1001-08.pdf. (See ITT's Online Archives or 12/09/08 news, 08120910, for BP summary of the CPSC test procedure.)

Firewalled and Governmental Labs Must Meet Additional Requirements

Firewalled labs (owned, managed or controlled by a manufacturer or private labeler) and governmental labs (owned or controlled in whole or in part by a government, including foreign) may also be accredited as third-party test labs, provided they meet certain requirements in addition to the baseline accreditation requirements described above. These additional requirements are as follows:

Firewalled labs - must submit copies of their training documents showing how employees are trained to notify the CPSC immediately and confidentially of any attempt by the manufacturer, private labeler or other interested party to hide or exert undue influence over the lab's test results.⁷

Government labs - the CPSC may permit accreditation of a government lab if: (i) to the extent practicable, manufacturers or private labelers located in any nation are permitted to choose laboratories that are not owned or controlled by the government of that nation; (ii) the lab's testing results are not subject to undue influence by any other person, including another governmental entity; (iii) the lab is not accorded more favorable treatment than other laboratories in the same nation who have been accredited; (iv) etc.

¹"Children's products" under the CPSIA are consumer products designed or intended primarily for children 12 years old or younger. In determining whether a consumer product is primarily intended for such children, the CPSIA outlines certain factors to be considered, including a statement by the manufacturer about the intended use of the product, whether the product is represented in its packaging as such a product, etc.

²For the purposes of third-party testing/certification, a "children's product safety rule" means "a consumer product safety rule under the CPSIA or similar rule, regulation, standard, or ban under any other Act enforced by the CPSC, including a rule declaring a consumer product to be a banned hazardous product or substance."

³The first children's product safety rule for which third-party lab accreditation requirements was issued was for the lead paint/surface coating ban of 16 CFR Part 1303; the second was for the cribs and pacifier regulations at 16 CFR Parts 1508, 1509 and 1511; and the third was for the "small parts rule" of 16 CFR Part 1501. (See ITT's Online Archives or 09/23/08, 10/23/08, and 11/18/08 news, 08092300, 08102310, and 08111810, for BP summaries.)

⁴Effective November 18, 2008, the CPSC issued an immediate final rule that streamlined and limited the new CPSIA conformity certification requirements to domestic manufacturers and importers, and stated that the CPSC would focus on product compliance, not the new certification requirements, at least in the initial implementation phase. (See ITT's Online Archives or 11/18/08 news, 08111805, for BP summary.)

⁵Note that CPSC has expressed certain CPSIA dates inconsistently. For example, it has stated on some documents that the lead content limits apply to children's products manufactured after February 10, 2009 and on others, on or after February 10, 2009. The same is true for the August 14, 2009 lead content date and several other dates.

⁶This additional requirement applies to any lab in which a manufacturer or private labeler of a children's product to be tested by the lab owns a 10% or more interest. While the CPSC is not addressing common parentage of a lab and a children's product manufacturer at this time, it will be vigilant to see if this issue needs to be dealt with in the future.

⁷The conditions are that: (i) The lab was ISO/IEC 17025 accredited by an ILAC-MRA member at the time of the test; (ii) The accreditation scope in effect for the lab at that time expressly included testing using the February 3, 2005 CPSC Laboratory SOP for Determining Total Lead Content in Children's Metal Jewelry at http://www.cpsc.gov/businfo/pbjeweltest.pdf and/or the 2008 CPSC Laboratory SOP for Determining Total Lead Content in Children's Metal Jewelry, CPSC-CH-E1001-08, available at http://www.cpsc.gov/about/cpsia/CPSC-CH-E1001-08.pdf; (iii) total lead testing was conducted and the analytical results of the testing for total lead do not exceed the 600 ppm or 300 ppm total lead limit, as applicable; (iv) The lab's accreditation application is accepted by the CPSC under the procedures of this notice not later than February 20, 2009; etc.

- comments are due January 21, 2009.

(See ITT's Online Archives or 12/11/08 news, 08121105, for BP summary of the draft version of these accreditation requirements.

See ITT's Online Archives or 11/14/08 news, 08111410 and 08111415, for BP summaries of CPSC's public meeting and FAQ/timeline on lead content.

See ITT's Online Archives or 08/27/08 and 09/10/08 news, 08082705 and 08091005, for BP summaries of the CPSIA lead content provisions and children's product certification requirements.)

CPSC contact - Robert ''Jay'' Howell (e-mail) rhowell@cpsc.gov

CPSC notice (FR Pub 12/22/08) available at http://edocket.access.gpo.gov/2008/pdf/E8-30255.pdf

CPSC site for 3rd-party test lab information, including list of accredited third-party labs, available at http://www.cpsc.gov/about/cpsia/labaccred.html

CPSC Web site on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html