CPSC Draft Final Rule on Kid Product Testing Every 1-3 Yrs Has All-Product Label Option, Etc.

According to CPSC, the draft final rule, which has been significantly revised from the May 2010 proposed version, would implement Section 102(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA).

(Note that this is one of four related notices being considered and voted on in the same time frame; the others are: (i) a notice seeking comments on ways to reduce the CPSIA third-party testing requirements which could conceivably change some of these testing requirements; (ii) a draft final rule on relying on component part testing or certification, or another party’s finished product testing or certification, to meet the CPSIA testing and certification requirements; and (iii) a draft proposed rule that would provide for the testing of representative (instead of random) samples for continued compliance testing of children’s products.)

Children’s Product Testing for Certification Purposes

The final rule would establish the following testing requirements to support a Children’s Product Certificate of compliance with applicable children’s product safety rules (see draft for complete list of these rules):

Initial testing -- Manufacturers (or importers¹) of children’s products would have to submit a sufficient number of samples of the product to a third-party lab whose accreditation has been accepted by CPSC. If any product fails, the manufacturer would have to investigate and address the cause of the failure, even if other samples passed. The manufacturer (or importer) could not issue a Children’s Product Certificate until they establish, with a high degree of assurance, that the product complies with all applicable children’s product safety rules. Component part testing (addressed in a separate, related draft rule) could be used to support these testing requirements.

Periodic testing every 1-3 years -- After initial certification, all manufacturers (or importers) of children’s products would have to do periodic third-party testing every one to three years, depending on the procedures they opt for as follows: (1) every year for manufacturers who do not undertake other production testing; (2) every two years for manufacturers who implement a production testing plan - which can use first or third party testing; (3) every three years if they use a lab accredited to ISO/IEC 17025:2005² but whose accreditation has not been accepted by the CPSC (which CPSC says are mostly in-house testing labs). Component part testing (addressed in a separate, related draft rule) could be used to support the periodic testing requirements.

Periodic testing if material change. If a children’s product undergoes a material change in product design or manufacturing processes, including the sourcing of component parts that could affect its ability to comply with an applicable children’s product safety rule, the final rule would require the manufacturer (or importer) to submit a sufficient number of samples of the materially changed product to a third-party lab for testing. The testing could be limited to the portion or component part of the finished product that was changed and to compliance with those children’s product safety rules for which compliance might have been affected. The manufacturer (or importer) could not issue a new Children’s Product Certificate for that product until the changed product or part meets the applicable children’s product safety rule(s).

Protection against undue influence on lab. Each manufacturer (or importer) of children’s products would have to establish procedures to safeguard against the exercise of undue influence by a manufacturer on a third-party lab.

Recordkeeping. Manufacturers (or importers) of children’s products would have to maintain the following records for five years and make them available to CPSC upon request: (i) a copy of the Children’s Product Certificate for each product; (ii) records of each certification test; (iii) records of periodic testing (see rule for list); (iv) records of all material changes and certification tests; (v) records of the undue influence procedures.

Partial exception for small batch manufacturers. The preamble of the draft states that until CPSC determines what alternative requirements are suitable for small batch manufacturers, they are not required to obtain third party testing results to confirm that their children’s products conform to most children’s product safety rules except with respect to: the lead content of paint; full-size and non full-size cribs; pacifiers; small parts; children’s metal jewelry; and baby bouncers, walkers, and jumpers. CPSC states that it will address the small batch manufacturer issue separately and will soon be holding a public hearing on the topic.

Voluntary “Meets CPSC Requirements” Labeling of Consumer Products

The final rule would also establish a voluntary program by which any manufacturer or private labeler of a consumer product could label product as complying with the applicable certification requirements for the product. If the manufacturer (or importer) has certified that a consumer product complies with all applicable consumer product safety rules, the manufacturer or private labeler could affix a visible and legible label to the product which states that the product: “Meets CPSC Safety Requirements.”

Rule Would Take Effect 15 Months after Publication to Consider H.R. 2715

The draft states that CPSC has decided to make the final rule effective 15 months after publication in the Federal Register so that parties can begin taking steps to develop internal processes, such as recordkeeping, and so that CPSC and interested parties can consider how H.R. 2715 interacts with the final rule.

This is because H.R. 2715, which became Public Law 112-28 on August 12, 2011, requires CPSC to seek comments on ways to reduce the CPSIA third-party testing costs, create alternative testing rules for small batch manufacturers, exempt certain products such as ordinary books from the third-party testing requirements, etc. (See ITT’s Online Archives or 08/02/11 news, 11080230, for BP summary of H.R. 2715.)

Many Topics Removed from Draft Final Rule

The following is a partial list of issues that were included in CPSC’s May 2010 proposed rule, but are not part of the draft final rule:

• Reasonable testing program for non-children’s products;
• Selection of random samples for children’s products;
• Testing of random samples to ensure continued compliance;
• Requirements for remedial action for children’s products;
• Partial exemption from periodic testing for low-volume products (to be addressed more fully later).

(CPSC has at times referred to this rulemaking as the “15 month” rule since it was meant to be issued 15 months after enactment of the CPSIA -- or by November 2009.)

¹Under the draft, manufacturer means the parties responsible for certification of a consumer product pursuant to 16 CFR Part 1110 (i.e, the importer in the case of imports or the domestic manufacturer in the case of domestic products).

²General Requirements for the Competence of Testing and Calibration Laboratories

(See ITT’s Online Archives or 05/20/10 news, 10052028, for BP summary of the proposed rule.

See ITT’s Online Archives or 09/22/11 news, 11092267, 11092265, 11092264 and 11092263, for BP summaries on the four related notices on CPSIA testing, certification and labeling issues that are being considered within the same timeframe.)