CPSC to Vote on Comprehensive CPSIA Testing & Certification Guidance (Part II - Children's Product Certification)

During a November 9, 2009 briefing to discuss the draft document, no substantial recommendations were made, but certain clarifications were suggested.

The draft gives guidance on the two types of certification required by Section 102 of the CPSIA:

I. general conformity certification for CPSC-regulated consumer products based on testing or a "reasonable testing program" (generally for non-children's products); and

II. certification for children's products² based on testing by a CPSC-accredited third-party lab.

It also contains new frequently asked questions (FAQs) on CPSIA testing and certification.

This summary addresses the draft's guidance on certification of children's products based on third-party testing. (See ITT's Online Archives or 11/09/09 news, 09110915, for BP summary of the draft's guidance on general conformity certification. See future issue of ITT for BP summary of the draft FAQs on testing and certification.)

Third-Party Testing and Certification Requirements for Children's Products

Section 102 of the CPSIA requires children's products subject to consumer product safety rules to be tested by a CPSC-recognized (accredited) third-party lab before they are introduced into commerce and certified as complying. The draft guidance adds:

Importers affected. CPSC has interpreted (at least initially) Section 102 of the CPSIA as applying to domestic manufacturers (for domestic products) or importers (for imported products).³ Therefore, it is these parties which must issue the certifications based on third-party testing by CPSC-recognized labs.

The certificates must specify each rule, ban, standard, or regulation applicable to the product for which it was tested and complies. (In the meeting, CPSC staff reminded participants that test labs issue test results, not certificates. It is manufacturers (and importers) who, based on third-party testing and other factors CPSC plans to clarify by rulemaking, issue certificates which certify their products comply.

Timeframe.Third-party testing and certification is only required for products manufactured 90 days after CPSC issues the third-party lab accreditation requirements for a specific children's product safety rule. Until then, manufacturers and importers must issue a general conformity certificate to certify compliance with the product safety rule. General conformity certificates are based on the less stringent requirement of testing or a "reasonable testing program."

Already in force for certain rules. The third-party testing and certification requirement is already in force for the following children's product safety rules: lead in paint and similar surface coatings (16 CFR Part 1303), small parts (16 CFR Part 1500.19), cribs (16 CFR Parts 1508, 1509, and 1500), pacifiers (16 CFR Parts 1511 and 1500), and lead content of children's metal jewelry (CPSIA Section 101). All children's products subject to these regulations are already required to be third-party tested by a CPSC-recognized lab and certified by the manufacturer or importer.

One-year stay for other rules. However, in February 2009, CPSC issued a one year stay of enforcement of much of the CPSIA-required third-party testing and certification, including for lead content, phthalates, etc, until at least February 10, 2010, when CPSC is to vote on the stay. However, CPSC did not stay underlying product compliance and did not stay all testing and certification, as seen by the above list of rules for which third-party testing and certification continued to be required.

Note that during the briefing, the Commissioners discussed various options regarding the stay, including lifting it completely, partially lifting it, and keeping it in place.

Once Stay Lifted, Affected Children's Products Would Need Third-Party Testing/Certification

The draft guidance explains that after the stay has been lifted by Commission vote, the following will be true for children's product testing and certification:

Only new manufactures affected. The requirements for third-party testing and certification will only apply to newly-manufactured products subject to Commission rules, standards and bans, not to products in inventory.

Would apply right away to certain stayed rules. Upon lifting the stay, the CPSIA third-party testing and certification requirements would apply immediately to the following stayed children's product safety rules (because the lab accreditation requirements for these rules have already been issued):

lead content of any component of a children's product (CPSIA Section 101);

youth bicycles (16 CFR Part 1512);

youth bicycle helmets (16 CFR Part 1203);

bunk beds (16 CFR Part 1213);

rattles (16 CFR Parts 1510 and 1500); and

dive sticks (16 CFR Part 1500).

May soon apply to other stayed rules. After the stay is lifted, the third-party testing and certification requirements for children's products may also soon apply to other stayed rules, as CPSC intends to issue new lab accreditation requirements over the next several months. The draft guidance states that for these rules, certification based on third-party testing would only be required upon lifting of the stay and then, only 90 days after CPSC issues the lab accreditation requirements. Until that time, the product would have to comply with the product safety rule but only need a general conformity certificate based on a "reasonable testing program." These rules are:

toys (ASTM F-963);

phthalates in toys that can be placed in a child's mouth and child care articles (CPSIA Section 108);

youth wearing apparel (16 CFR Part 1610);

children's sleepwear (16 CFR Parts 1615 and 1616);

baby walkers and bouncers (16 CFR Part 1500);

caps and toy guns (16 CFR Part 1500);

youth carpets and rugs (16 CFR Parts 1630 and 1631);

clacker balls (16 CFR Part 1500);

durable nursery products (CPSIA Section 104);

electrically operated toys, video games, and other children's articles (16 CFR Parts 1500.18(b) and 1505);

youth mattresses (16 CFR Parts 1632 and 1633);

small balls and marbles (16 CFR Part 1500.19);

youth swimming pool slides (16 CFR Part 1207);

vinyl plastic film (16 CFR Part 1611); and

youth all-terrain vehicles (CPSIA Section 232).

After Initial Testing, Children's Products Need Continued Compliance Testing

After initial testing and certification of a children's product, Section 102 of the CPSIA requires continued third-party testing on both: (i) a periodic basis, and (ii) whenever there is a material change in the product's design or manufacturing process, including the sourcing of component parts. Section 102 also requires CPSC to issue a regulation establishing the standards and protocols by which such continued compliance testing will be necessary. However, pending completion of such a rulemaking, the draft guidance provides CPSC's expectations with respect to continued testing of children's products as follows:

Material changes. The draft guidance states that children's products must again be tested by a CPSC-recognized third party lab whenever a material change occurs that could affect a product's ability to conform to a product safety rule. This can include a product design change, a change in the manufacturing process, or a change in the supplier of a component part. However, when such a change has occurred, only the product's conformity with the requirements that might have been impacted by the change would need to be tested.

Periodic testing. The CPSIA also requires that children's products be tested "periodically." The draft guidance states that until CPSC promulgates its rulemaking defining such terms, it strongly encourages that periodic testing be conducted at least annually. CPSC also believes that periodic testing should be performed by a CPSC-recognized third-party lab, but does not have to be the same lab that did the initial tests to support the product's certification.

However, in the November 9, 2009 meeting to discuss the guidance, CPSC staff stated that products with the following factors may need to be tested more often than annually: (i) non-compliance could result in injury or death; (ii) production volumes are high; (iii) there is high test result variability; (iii) test results tend to be close to the limit; (iv) products are new for the company; (v) there have been consumer complaints or warranty claims.

Allowances for low-volumes. The draft adds that to reduce the third-party testing burden on businesses that produce low-volume products, CPSC will not expect additional periodic testing on products until at least 10,000 units of that product have been produced. This does not relieve the requirement to obtain CPSC-recognized third-party lab test results for the initial certification tests and when there has been a material change in the product.

Sample size. According to the draft guidance, the determination of how many samples of a product should be selected for periodic testing depends on specific aspects of the product, testing costs, whether testing is destructive or non-destructive, similarities to other products, assumptions about the likelihood of non-compliance, the lot size, the number of products ultimately to be produced and many other factors. Because these considerations can vary greatly from product to product, CPSC cannot prescribe any specific sample size.

"Reasonable Testing Program."CPSC is also considering a rule on "reasonable testing programs" for children's products, which may establish standards and protocols for continued compliance testing (periodic and for material changes), among other things. Note that even though "reasonable testing programs" are the basis for issuing General Conformity Certificates for non-children's products and do not require third-party testing, CPSC makes clear in the draft guidance that any "reasonable testing program" for children's products would be in addition to the third-party testing requirements.

(CPSC is planning a public workshop on how to implement the Section 102 testing and certification requirements, including what "reasonable testing program" means and if it can be applied to children's products. See ITT's Online Archives or 11/03/09 and 11/10/09 news, 09110305 and 09111099 2, for BP summaries.)

Component Testing Usually Allowed, But Product Itself Must Comply

The draft guidance states that the manufacturer (or importer) can rely on CPSC-recognized third-party test lab results provided by a component supplier, but the manufacturer (or importer) remains ultimately responsible for assuring the compliance of their products with all applicable CPSC-enforced rules, bans, and standards.

In such cases, the component supplier's third-party testing must meet the same requirements as tests executed on the product; a CPSC-recognized third-party lab must be used by the supplier; there can be no material change in the component since that test; and the manufacturing process cannot introduce reasons for non-compliance.

Supplier certification. Those who chose to rely on supplier certifications should keep detailed records with regard to their purchases and lot and batch records linking those purchases to particular factory runs, etc.; should perform some production testing to ensure the integrity of the manufacturing process, etc.

Exceptions. However, CPSC points out that there are certain product safety rules for which component testing can not be used. For example, conformity with the crib regulations can only be assessed on an assembled crib.

¹Enacted as Public Law 110-314 on August 14, 2008.

²"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.

³In November 2008, CPSC issued a final rule limiting the CPSIA certification requirement to domestic manufacturers (in the case of domestic products) or importers (in the case of imports), at least in the initial implementation phase. The original CPSIA requirement was for manufacturers (which by statute includes importers) and private labelers. (See ITT's Online Archives or 11/13/08 news, 08111305, for BP summary.) Note that CPSC stated in October 2009 that it is still working to define who should ultimately be responsible for CPSIA testing and certification.

CPSC ballot vote sheet with draft guidance document, etc. (posted 11/05/09) available at http://www.cpsc.gov/library/foia/foia10/brief/102testing.pdf