CPSC Compliance and Consumer Products Not Intended for Children

Importers and the government can often take radically opposite positions when it comes to what is considered a children’s product. Given the myriad of extra regulations surrounding goods for children, it is no wonder that so many importers try to steer clear of having what they consider to not be children's product, identified as such.

The difficulty arises however, when dealing with an article that could be considered attractive to a child. A 3-inch sized colorfully painted object, intended to be merely a decorative household item, could ultimately be considered a toy or children’s product by a government agency. The same holds for a decorative plush good that had not been intended for sale to children but could easily double as a children’s plush toy.

While some imports are an obvious decorative housewares product, such as a large wall plaque with a beer logo on it, with such attachments for hanging already affixed to it, and is therefore, clearly identifiable as not being intended for a child, others simply do not hold water when it comes to the government’s determination as to it not being a children’s article.

With regards to compliance, any imported article with paint or some other surface coating would be subject to Consumer Product Safety Commission’s (CPSC) rules and require lead paint testing if it is considered a “children’s product” by the government.

In addition to the surface coating issue, when children’s products are involved, there are also lead testing (separate from the lead paint issue), tracking label and other possible rules, such as that regarding small parts which must be adhered to.

Once the testing is complete, then there is the general certificate of conformity requirement that must accompany the shipment attesting to its compliance with the various CPSC rules. This certificate would need to be retained in accordance with Customs record keeping rules and be furnished upon request by Customs and retailers and distributors here in the US.

In addition, if you are planning to have goods shipped into California, or if you have reason to know that they might end up there, it should be noted that the state typically has more stringent rules than those at the national level.

For more information about importation of children’s products, go to www.cpsc.gov.

Questions comments? Post below or email me at clark.deanna@gmail.com

Stay of Enforcement Lifted on CPSC Flammability Standards

Following a unanimous vote by the U.S. Consumer Product Safety Commission (CPSC), the stay of enforcement on certification for compliance with the flammability standards for non-children's products has been lifted in the following categories:

• Clothing textiles
• Carpets and rugs
• Vinyl plastic film

This means in everyday language, that an importer who fails to certify that CPSC flammability standards have been met on imported merchandise will now be subject to penalties which can exceed well over $100,000 USD.

Starting yesterday (January 26, 2011), an importer will no longer be “forgiven” when it fails to certify that an importation is compliant with CPSCs flammability rules. The compliance certificate indicating this is known as a General Conformity Certificate or “GCC.”

CPSC concluded in 2009 that when certain fabrics have not been treated with the inclusion of substances that could result in the addition of lead into the fabric, lead content testing was no longer required where it was 100% of, or any blend of, the following textiles.

1. Natural fibers, whether dyed or undyed, including cotton, ramie, linen, silk, alpaca, among others; and,

2. Manufactured fibers, whether dyed or undyed, including polyester, spandex, nylon, acrylic and rayon, among others.

Keep in mind that a GCC is still mandatory even where the underlying textile is exempted from CPSC requirements.

While the underlying testing of these fabrics is no longer required, manufacturers and importers still remain responsible for

(a) Providing a GCC with each shipment,
(b) Verifying that the product or material has not been altered or modified so as to cause lead to enter the material or product, and
(c) Assuring for themselves that the fabric is indeed exempt.

GCCs and copies of the test results upon which certification is based must be kept for 3 years. It also must be provided in a timely manner upon request by CPSC, or an importer can find itself subject to a penalty under the premise of having made a false guaranty. As the certifier that merchandise is compliant with CPSC rules, an importer must:

1. Be in possession of the original, or a copy of, the test certificate upon which the GCC is based, and

2. Retain the test certificate together with the original GCC for a minimum of 3 years after the production date.

A GCC must accompany the product whether imported or manufactured in the United States and be furnished to the product's distributors and/or retailers as these companies must also supply GCCs for their products to CPSC upon request.

CPSC requires that the GCC “accompany” a shipment [73 FR 68328, 11/24/08], and it permits a number of methods for doing so, including electronic “accompaniment.”

While the GCC may be made available online, given the reality of facilitating the movement of cargo and U.S. Customs’ physical handling of it, the agency looks for certain records as being included with a shipment. Therefore, its physical inclusion within the shipment is recommended.

Needless to say, it is critical that CPSC flammability rules and regulations are complied with now that enforcement activity will commence and penalty amounts have so tremendously increased. More information about factors CPSC may consider in assessing a penalty can be found at 16 CFR Part 1119, published in 74 FR 45101.

Questions/comments? Post below or email me at clark.deanna@gmail.com

Consumer Product Safety and US Customs Cooperation

As the watchdog of our country’s borders, US Customs has the authority to enforce, and otherwise maintain the integrity of, other federal agency regulations with respect to imported merchandise.

While the Consumer Product Safety Commission (CPSC) is responsible for the oversight of some better known laws, including the Flammable Fabrics Act (addressing inter alia, sleepwear and mattresses) and the Consumer Product Safety Act (CPSA) (dealing with, inter alia, children’s products and lighters), it is likewise overseeing some lesser known laws which I find to be interesting, such as the Refrigerator Safety Act and the Children’s Gasoline Burn Prevention Act.

Like US Customs, CPSC has specific statutory authority under 15 USC §2066 and 15 USC §1273 for sampling imports in order to ensure compliance with consumer product safety rules. Where a violation of its regulations is suspected, it likewise may issue a notice of detention (if the circumstances so require) describing the alleged violation and its governing statute.

CPSC will issue this notice to the importer who then deals directly with CPSC. Copies are provided to the importer’s Customs broker and US Customs as well. Detained merchandise remains under US Customs custody whether US Customs has issued its own detention notice or not.

Typically, the recipient of a notice has 5 business days within which to provide the requested information to CPSC in order to resolve the detention. While extensions may be granted, CPSC makes an effort to resolve detentions within 30 days.

Of all of the laws that CPSC regulates, where a violation of the CPSA occurs (and only the CPSA), a hearing may be sought by the importer, owner, or consignee under the Administrative Procedures Act. During this time however, i.e., pending the completion of the hearing, the merchandise must remain under government custody at the expense of the importer, owner, or consignee, which in everyday language, typically amounts to fees for warehousing and other incidental charges, such as the use of a forklift, a forklift supervisor, etc. Charges will vary based on the quantity and type of merchandise at issue.

When requested, CPSC may grant a conditional release of the merchandise for examination and testing so long as it remains under the US Customs bond. While "conditionally released" the goods may not be distributed.

Of course, where the cargo is not returned prior to the termination of the conditional release period, there is always the risk that US Customs might issue a Redelivery Notice which could ultimately lead to seizure, destruction or exportation of the merchandise.

Or, in the event the goods are not redelivered, an importer would likely be facing an assessment of liquidated damages. US Customs must issue this notice however, within 30 days after the end of the conditional release period.

Lastly, an importer may request that the detained merchandise be exported or destroyed. Of course, destruction means that not only has the importer/owner forfeited the money for the cost of the merchandise, but it also has to pay out-of-pocket for its destruction, and carry out the operation under Government supervision.

Needless to say, when an alleged violation remains unresolved, big brother (i.e., some branch of the government) will be watching, until a resolution has been found, a penalty (or liquidated damages claim) has been paid, or the merchandise has been destroyed.

In my experience I have noticed that all too often, importers believe that “no news is good news.” As a practitioner, I recognize that no news can actually be a prelude to really bad news with expensive consequences.

It would therefore, be prudent to routinely review importation practices and protocols, and obtain periodic advice and counsel on existing practices to ensure compliance with existing laws or newly implemented regulations. As always with new endeavors, the prudent approach would be to obtain expert advice.

Questions/comments? Post below or email me at clark.deanna@gmail.com

Consumer Safety Product Commission (CPSC) and Children's Products

Last week I received an inquiry from a self-described “rookie” apparel importer regarding the use of a bonded warehouse for certain importations. Along with the inquiry came links to a couple of websites that showcased the women’s wear (very cute btw) at issue.

I thought about the myriad of U.S. Customs issues raised by his inquiry alone, and since it dealt with apparel, my mind wandered over to the Flammable Fabrics Act (and Consumer Product Safety Commission (CPSC) oversight of compliance with that statute), and I wondered to what extent he was familiar with other government agency laws.

The relevance of this awareness as an importer, is that since U.S. Customs enforces U.S. laws at the border on behalf of other federal agencies, importers must be knowledgeable about - and in compliance with - these laws.

While there are numerous CPSC regulations covering many specific products, from baby bouncers and walkers, to felt-tip marking devices, to mattresses, there are certain CPSC rules that cover broad product categories, such as those regarding children’s products, including the regulation of lead paint, lead content, small parts, and children’s metal jewelry. Some currently applicable details behind each of these rules are as follows:

Lead paint on children’s products (16 CFR Part 1303)
Maximum Allowable Limit: 90 ppm
Must be Certified as Compliant if Product Made on/after This Date: 8/14/09
What Needs to be Tested: Any type of surface coating
Current Stay of Enforcement of Testing and Certification Requirement?
NO - SUBJECT TO ENFORCEMENT

Small parts (16 CFR Part 1501)
(only pertains to products intended for use by children under 3 y.o.)
Maximum Allowable Limit: n/a
Must be Certified as Compliant if Product Made on/after This Date: 2/15/09
What Needs to be Tested: Size of small components
Current Stay of Enforcement of Testing and Certification Requirement?
NO - SUBJECT TO ENFORCEMENT

Lead in metal components of children’s metal jewelry (CPSIA §101)
Maximum Allowable Limit: 300 ppm
Must be Certified as Compliant if Product Made on/after This Date: 8/14/09
What Needs to be Tested: Testing of accessible parts
Current Stay of Enforcement of Testing and Certification Requirement?
NO – SUBJECT TO ENFORCEMENT

Total lead content in metal children’s products and in non-metal children’s products (CPSIA §101)
Maximum Allowable Limit: 300 ppm [scheduled for reduction to 100 ppm on Aug. 14, 2011]
Must be Certified as Compliant if Product Made on/after This Date: Feb. 10, 2011
What Needs to be Tested: Testing of accessible components (RULE SUBJECT TO CHANGE)
Current Stay of Enforcement of Testing and Certification Requirement?
YES – THROUGH FEB. 9, 2011

One oddball aspect to administrative law, i.e., where a federal agency promulgates (i.e., creates) regulations interpreting a statute (law), is that in order to get a final regulation, the proposed rule must undergo a “notice and comment” period. As these new children’s product rules came out of a 2008 law – the Consumer Product Safety Improvement Act of 2008 (CPSIA) – the creation of regulations is still ongoing, causing confusion in the trade community as to what ought to be followed.

For example, the CPSC is in the process of coming up with an “interpretive rule” on the meaning of the term “children’s product.” In other words, compliance is being sought across products for which no finalized definition exists, which begs the question – how can importers know how to be compliant? And how does U.S. Customs actually know what to enforce?

Lastly, if it weren’t confusing enough, the rules keep changing as we await a final rule. For example, this last category of each section above, “Stay of Enforcement of Testing and Certification Requirement” refers to the following.

There is a “stay” with regards to lead content in children’s metal consumer products (with the exception of metal jewelry) and non-metal consumer products. This means that while children’s products must be in compliance with CPSC lead content rules, the enforcement against non-compliance with the lead content rule for children’s consumer products is not currently in effect because it is “stayed.”

To keep track of CPSIA updates, click here.

Questions/comments? Post below or email me at clark.deanna@gmail.com

Citations:

74 FR 68593, (12/28/09).

“The Commission plans to keep the stay in effect for total lead content in metal children’s products and in nonmetal children’s products tested pursuant to CPSC–CH–E1001–08, Standard Operating Procedure for Determining Total Lead (Pb) in Children’s Metal Products or CPSC–CH– E1002–08, Standard Operating Procedure for Determining Total Lead (Pb) in Non-Metal Children’s Products, (section 101 of the CPSIA) until February 10, 2011. With regard to lead content, the Commission has determined that testing of children’s products for lead content by a recognized third party testing laboratory and certification based upon that testing should begin on products manufactured after February 10, 2011 to allow component testing to form the basis for certifications for lead content and permit the staff to complete an interpretative rule on the meaning of the term ‘‘children’s product.’’ 74 FR 68588, pg. 68591 (12/28/09).

Toxic Purses?

Earlier this week I saw a news piece on Headline News about toxics in handbags. It mentioned how over time as you get to love your handbag, i.e., the more it is worn, the greater the risk of releasing chemicals which were not on its surface thereby exposing yourself to them.

In an effort to reduce shopper concerns, retailers including Saks Fifth Ave., Target, TJMAXX, and many others, all agreed (according to Headline News) to not sell products with contaminants in them.

But how does a retailer actually prevent this? And given the nature of manufacturing in today’s modern world, how can exposure to toxics (which lie beneath the surface) over a certain amount of time be avoided?

At the federal level, the Consumer Product Safety Commission (CPSC) has regulations regarding maximum levels of certain chemicals, such as Lead and Pthalates in consumer products. CPSC has also found lead to not be naturally occurring in certain articles, like cotton.

On top of federal regulations, however, some states, like CA, have taken matters into their own hands when it comes to the protection of consumers. It has done this through a law that came out in the 1980s (and is gaining renewed momentum) called Proposition 65.

Proposition 65 requires businesses to warn people about significant amounts of chemicals in the products they make where that chemical is both (1) known to cause cancer, birth defects or other reproductive harm, and (2) is listed on the “Prop 65 List.”

California’s Prop 65 in its simplest terms, requires a label where a product contains a chemical compound that exceeds the Safe Harbor Level. Safe Harbor determinations are based on a person’s exposure to a chemical, assuming daily exposure at that level.

The warning to consumers is typically done via the placement of a “warning label” directly onto the merchandise itself.

Retailers and importers therefore, need to test their products (typically done at the production level) for the existence of these chemicals and, if found, are subject to the label requirement.

As for which parts to test, merchandise is subject to testing for all parts to which a user may come into contact with, or otherwise be exposed to. Therefore, all outer and inner surface materials require testing.

With all of the recent buzz around the existence of chemicals in consumer products, namely with lead, phthalates and cadmium, I decided to look into the Proposition 65 rules regarding these 3 chemicals.

While stated in simple terms, there are technically several subdivisions of each of these chemicals, only a handful of which are on the Prop 65 List and therefore, subject to testing. They are:

5 Listed Phthalates:

Di(2-ethylhexyl)phthalate) (DEHP)
Di-n-butyl phthalate (DBP)
Di-n-hexyl phthalate (DnHP)
Butyl benzyl phthalate (BBP)
Di-isodecyl phthalate (DIDP)

4 Types of Lead:

Lead
Lead acetate
Lead phosphate
Lead subacetate

1 Type of Cadmium

Cadmium

California’s Office of Environmental Health Hazard Assessment (OEHHA) provides a list of “Safe Harbor Levels,” of which there are 2 types (NSRLs and MADLs (defined below)). These levels are intended to assist in determining whether warnings are required on products for exposures to the listed chemicals because if those levels are exceeded, a label is required.

According to Susan Luong of the Prop 65 Office, however, they are not intended to provide a “maximum acceptable amount” of a chemical in a product (like how CPSCs regulations provide) because there is no established allowable concentration level for listed chemicals.

In my experience working with importers who want to be compliant with state and federal laws, having limits but declaring that they are not maximums is confusing. This is because in order to be compliant, there need to be straightforward rules so that those entities subject to penalties for not following them, understand what needs to be done and can add measures to their compliance programs as appropriate.

With more companies being the target of these laws due to greater consumer awareness, it is imperative that federal and state agencies give manufacturers, importers and retailers the information they need to be compliant.

NSRL ("No Significant Risk Levels" (NSRLs) for carcinogens)
MADL ("Maximum Allowable Dose Levels" (MADLs) for chemicals that cause reproductive toxicity)

Questions/comments? Post below or email me at clark.deanna@gmail.com