Trade Suggests Ways to Reduce CPSC 3rd-Party Test Costs for Kid's Products

(CPSC is required to seek comments on how to reduce third-party testing costs by Public Law 112-28 of August 2011. Not more than one year after seeking comments, CPSC must review them and may prescribe new or revised third-party testing regulations if it determines that such regulations would reduce costs consistent with ensuring compliance with applicable rules, standards, bans, etc.^1,2)

Associations Say Testing Costs Are High, Made Numerous Suggestions

CPSC received 22 comments in response to its proposed rule, more than half of which were submitted by trade associations³. Overall, comments stated that testing and certification can affect the entire supply chain, and even small reductions in testing costs may lead to significant economic benefits while maintaining safety. The following are highlights of trade associations' suggestions on ways the CPSC could reduce costs for third-party testing of children's products.

CPSC Should Advise Retailers No Preference is Given to One Lab Over Another

Associations noted that the predominant issue the industry faces regarding third-party testing is multiple retailers often requiring third-party testing to be conducted by specific testing facilities. As a result, manufacturers must conduct multiple tests and use various testing facilities to satisfy retailer requirements on the same production involving a single, otherwise identical, product model. Moreover, retailers have very specific periodic testing requirements that are far more stringent than those required in CPSC's periodic testing rule. Associations requested that CPSC clearly and expressly advise retailers that there is no preference accorded to one CPSC accredited laboratory over another.

Associations Largely Favor Testing of Subsets, Composite Testing

Associations generally supported the ability to have products with a substantial number of different components subject to third-party testing be evaluated to show compliance by testing a subset of such components. They stated that to the extent that component materials or sub-components are wholly manufactured in other industrial sectors, reliance upon certifications with such sectors can and should be relied upon.

Similarly CPSC’s recognition of "composite" testing of substrate and surface coating under defined protocols, further recognized that when component part testing cannot be relied upon, testing with composite materials can further reduce unnecessary testing and costs. It was suggested this process be maintained as suitable for determining compliance with the lead paint, substrate, and phthalate limits for toys and other childcare articles.

Said CPSC Should Increase Int'l Harmonization of Standards

Associations suggested CPSC continue and increase its efforts to harmonize international laws and regulations applicable to consumer products. In situations where international standards are identical (or compliance with U.S. standards can be determined mathematically or scientifically from results of compliance testing with international standards), third-party testing for an international standard should satisfy third-party testing requirements for the U.S. counterpart. It was also recommended that Canada and Mexico fully align with U.S. requirements whenever possible.

Mutually Recognize U.S. and Other Countries' Labs

To assure suitable numbers of accredited laboratories are available along the global supply chain, it was recommended that the CPSC consider mutual recognition of laboratories already recognized by the Commerce Department's National Institute of Standards and Technology (NIST), in accordance with generally recognized international accrediting bodies. Comments stated this would reduce record keeping requirements and an additional unnecessary bureaucratic filing with the CPSC. Mutual recognition would also make additional internationally accredited and recognized laboratories available for production, material, or parts testing.

Federal Standard Preempting State Product Safety Rules Should Be in Place

Associations stated there has been a drastic increase in state implementation of individual product safety regulations, which differ drastically, and in many cases, contradict one another. They noted that compliance with a patchwork of state standards is impractical, extremely burdensome, and does not make the product any safer. The CPSC was recommended to continue to work with states to deter any state product safety legislation that differs from federal requirements and to implement a strong federal standard that preempts state standards.

Products Already Tested Under FDA, Flammable Fabrics Act, Etc. Should be Exempt

According to association comments, in some cases, third-party testing to another government agency’s requirements may provide a company with reasonable assurance of conformity to CPSC requirements. Specifically, most comments stated that the CPSC should provide an exclusion from the certification and periodic testing requirements for food-grade materials which are accompanied by reputable supplier assurances and comply with the Food and Drug Administration (FDA) requirements.

Associations also noted that under the Flammable Fabrics Act (FFA), continuing guaranties are permitted and can be relied upon as part of component supplier certification reliance and should similarly be recognized without further requirement for testing and certification. They stated CPSC should make clear with a guidance document that no certification is required when an item is exempt from testing (including, but not limited to, items exempt under the FFA) and that an exempt item does not require a General Certification of Conformity (GCC).

Suggested Use of First-Party XRF Testing to Determine if Further Testing Needed

Commenters advised CPSC to not mandate through regulation the use of particular technologies, tools or test methods. Many also suggested that certifiers be permitted to use screening technologies such as first-party X-Ray Fluorescence (XRF) to reduce the cost burden of third-party testing. They believe CPSC has received enough scientific evidence to allow for XRF testing to be used as a screening process to determine if further testing of a product is needed.

Other Ways to Lower Costs Include De Minimis & Small Batch Exemptions, Etc.

Associations stated CPSC should assess how other techniques, such as use of audits, good manufacturing practices, and manufacturer attestations could be relied upon to minimize the burden of third-party testing throughout the supply chain. Comments also suggested the following:

• List of materials exempt from testing. CPSC should publish a list of materials that would not violate the phthalate standard and therefore do not require phthalate testing. They noted that there has been a great deal of confusion as to the scope of the phthalate standard and how to apply the policy to quality assurance and testing programs.

• De minimis exception. CPSC should revise the lead paint standard to include a de minimis exception for small painted areas as it can be difficult for testing labs to obtain enough of a sample to test for lead paint. Likewise, third-party conformity assessment bodies and the testing protocols for phthalates recognize no de minimis exception from testing requirements where the amount of accessible, plasticized material is so small that large numbers of individual products must be used to get enough material to perform testing.

• Small batch exemption. CPSC should provide a small batch exemption from third-party testing for large manufacturers producing a small batch. While many manufacturers may have total gross revenue exceeding $1 million⁴, they may also have certain product lines that consist of very small batches. Regardless of whether a manufacturer is large or small, requiring third-party testing for small batches goes against the spirit of the small-batch manufacturer exemption.

CPSC Sought Comments on 7 Possible Changes to Reduce 3rd-Party Test Costs

In its request for comments, CPSC sought comment on the following seven broad issues regarding possible third-party test cost reduction for children's products (those designed or intended primarily for children 12 years of age or younger):

1. modified certification for similar products from different importers;
2. testing subsets of components;
3. using sampling to reduce the test burden;
4. recognizing other national or international standards;
5. using materials third-party tested for another agency;
6. use of other test technology; and
7. other techniques to lower costs.

(See ITT's Online Archives 11111009 for summary of CPSC's request for comments.)

¹Note that this was one of four related notices issued concurrently on CPSIA testing, certification, and labeling.¹ CPSC states these other notices (two final rules and one proposed rule) are all related in some way to third-party testing and that interested parties may wish to familiarize themselves with these notices.

The three other notices are: (1) a final rule, effective February 8, 2013, that establishes third-party testing requirements for the initial certification of children’s products, and periodic testing thereafter, etc. (See ITT’s Online Archives 11110925 for summary); (2) a final rule, effective December 8, 2011, that provides a voluntary certification option for domestic manufacturers and importers who must certify finished consumer products as complying with CPSC requirements to base their certificates on one or more of the following: component part testing or certification or another party’s finished product testing or certification - as long as certain conditions are met. (See ITT’s Online Archives 11110817 for summary); and (3) a proposed rule that would provide for the testing of representative (instead of random) samples for children’s product continued compliance testing. (See ITT's Online Archives 11111427 for summary).

²If CPSC determines that it lacks authority to implement an opportunity for reducing the costs of third-party testing consistent with assuring compliance, it would have to submit a report to Congress along with any legislative recommendations to permit such implementation. (See ITT’s Online Archives 11080230 for summary of H.R. 2715, which became P.L. 112-28.)

³Comments were submitted by the American Apparel & Footwear Association (AAFA), Juvenile Products Manufacturer's Association (JPMA), International Sleep Products Association (ISPA), Society of the Plastics Industry, Inc. (SPI), Fashion Jewelry and Accessories Trade Association (FJATA), Toy Industry Association, Inc. (TIA), Handmade Toy Alliance, Hosiery Association, the Art & Creative Materials Institute (ACMI), Retail Industry Leaders Association (RILA), Hong Kong Toys Council, etc.

⁴An applicant for the small batch manufacturer exemption must attest that it satisfies two threshold requirements: (1) it must attest that its total gross revenue from the prior calendar year from the sale of all consumer products was $1 million or less; (2) it must attest that it manufactured no more than 7,500 units of the covered product that qualifies the manufacturer for registration. (See ITT's Online Archives 11122709 for summary.)

Federal Register notice (Pub 11/08/11) is available here.

All comments are available by searching "CPSC-2011-0081" at www.regulations.gov.