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CPSC Addresses Costly Testing by Manufacturers for Lead & Phthalates

U.S. Consumer Product Safety Commission officials have offered a few informal indications in recent weeks regarding how they plan to implement various provisions in the major Consumer Product Safety Improvement Act (CPSIA) passed by Congress in August.  However, CPSC officials offered the business community almost no guidance at a day-long meeting on the CPSIA’s lead provisions at CPSC headquarters on November 6, and it remains to be seen whether a public meeting scheduled for December 4 on the statute’s phthalate provisions will prove any more informative.

Of particular interest regarding the lead provisions, CPSC General Counsel Cheryl Falvey said at the November 6 meeting that the agency would soon address a formal request for reconsideration of its opinion that the upcoming February 10, 2009 implementation date for the 600 parts per million restriction on lead in children’s products would apply to products in inventory as well as to products manufactured after that date.  However, Falvey gave no indication that a change in her initial opinion was likely.  On the other hand, Falvey noted that the statutory language for the phthalate provision is “murky” and that it differs from the lead provision, seemingly leaving the door open to a different interpretation regarding the treatment of inventory with respect to the phthalate provision’s same February 10 implementation date.

In other less public settings, CPSC officials have been more forthcoming about certain other aspects of their implementation plans.  In a recent meeting with business community representatives, a senior CPSC official addressed in particular some of the agency’s plans for implementing the CPSIA’s new general conformity assessment requirement for any products subject to a consumer product safety law or regulation administered by the CPSC. 
 
The senior CPSC official offered some promising insights into the agency’s thinking as to how to interpret the requirement that the general conformity certificate “accompany” the product and also the requirement that it be “furnished” to the retailer.  In a victory for SGMA members, CPSC will not require identification of overseas manufacturers contracted to make products and allow the certificate to be electronic (for example, with a URL on the container specifying a website destination at which the certificate can be found).  The official said the best outcome would be for the certification reference to be on the bill of lading or other entry documents, and that the CPSC is currently working with U.S. Customs and Border Protection towards that objective.
 
In interpreting the statute’s requirement that the certificate be furnished to retailers, the senior CPSC official said the CPSC will not require that the certification be physically given to the retailer.  Instead, the agency will merely require that the certification be easily available via website or phone number.
 
Regarding the CPSC’s enforcement of the new certification requirements, the senior CPSC official said that the CPSC does not plan to put into place a new enforcement program aimed specifically at certification.  The agency will continue to rely on sampling as it does now and, if a defective product is found, the CPSC will then look to check whether the product has the appropriate certification.