CPSC Issues Final Rule Interpreting the Civil Penalty Factors in CPSA

When it comes to certain imports, aside from US Customs there are other federal agencies whose regulations must be met for an importation to be in compliance. Due to a myriad of concerns including, for example, children's lead safety and clothing flammability issues, compliance with Consumer Safety Product Commission (CPSC) regulations must be met.

With CPSC's issuance of a new final rule of its interpretation of the civil penalty factors found in the Consumer Safety Product Act (CPSA), the Federal Hazardous Substances Act (FFA), and the Flammable Fabrics Act (FFA), as amended by section 217 of the Consumer Product Safety Improvement Act of 2008 (CPSIA), the importing community is now aware of what CPSC considers when making civil penalty determinations.

A civil penalty may be sought against any person who knowingly violates a prohibited act under the CPSA, FHSA or FFA, or who has presumed knowledge of such act as being a violation.

The CPSA, FHSA, and FFA define “knowingly” as the having of actual knowledge, or the presumed having of knowledge deemed to be possessed by a “reasonable man” who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations.

The rule, in its own wordy way, further describes a list of new and expanded prohibited acts which include:

1. the importation, distribution in commerce, sale (or offer for sale) of a non-compliant consumer product (or other product or substance) that is regulated by the CPSC;

2. the failure to furnish a certificate required by any other act enforced by CPSC, inc. a tracking label;

3. the importation, distribution in commerce, sale (or offer for sale) of a consumer product containing an unauthorized third party certification mark;

4. the exercise (or attempted exercise) of undue influence on a third-party conformity assessment body that tests products for CPSC compliance;

5. the importation, distribution in commerce, manufacture or sale of products subject to voluntary corrective action, for which none has been taken;

6. the importation, distribution in commerce, manufacture or sale of a product subject to a mandatory recall;

7. the exportation (for purposes of a sale) of any consumer product or substance that is subject to a court ordered recall, voluntary CPSC announced recall, or banned under the FHSA;

8. the importation, distribution in commerce, manufacture or sale of a banned hazardous substance under FHSA ;

9. any misrepresentation about the scope of a consumer product subject to a recall or a material misrepresentation during an investigation to a CPSC employee or officer; and,

10. the exportation (for purposes of a sale) of a consumer product not in conformity with an applicable CPSC rule.

There are statutory factors the CPSC must consider when making a determination of the assessment of a civil penalty following the undertaking of a prohibited act. Considerations enumerated by the CPSC include:

1. the nature, circumstances, extent and gravity of the violation, including, the nature of the product defect or of the substance;

2. the severity of the risk of injury;

3. the occurrence or absence of injury;

4. the number of defective products distributed or the amount of substance distributed;

5. the appropriateness of the penalty in relation to the size of the business of the person charged, including, how to mitigate undue adverse economic impacts on small business; and,

6. such other factors as appropriate.

For more information on this new rule go to CPSC's website. This final rule goes into effect upon publication in the Federal Register.

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