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CPSIA Tracking Label Recent Development

Section 103 of the Consumer Product Safety Improvement Act ("CPSIA") requires that manufacturers, to the extent practicable, place permanent, distinguishing marks on all consumer products and packaging intended primarily for children twelve and under (children’s products).  The tracking label must contain certain identifying information that will enable the ultimate purchaser to ascertain the manufacturer or private labeler, the location and date of production, and cohort information, such as batch or run number.  Section 103 is effective one year after the date of enactment of the CPSIA or August 14, 2009. 

On May 5, 2009, the Consumer Product Safety Commission (“CPSC”) posted a request by the Consumer Product Safety Commission Coalition of the National Association of Manufacturers ("NAM CPSC Coalition") for an immediate stay of enforcement of the tracking label requirement of Section 103.  The Commission issued its final vote on May 13, 2009.  Unfortunately, the Commission did not reach a decision on the stay of enforcement.  Acting Chairman Nancy Nord voted to grant the request for a stay of enforcement of Section 103, but Commissioner Thomas Moore voted to deny the request for a stay of enforcement.  Therefore, the stay of enforcement was not granted and compliance with Section 103 is required as of August 14, 2009. 

Chairman Nord and Commissioner Moore both issued statements with their votes.  Even though Commissioner Moore voted to deny the stay, it does sound as if he understands the extreme confusion and pressure the language of Section 103 has created for manufacturers.  To that end, he stated that if the CPSC "finds manufacturers who have diligently tried to comply with the statute, but miss the mark on devising a complying tracking label, we will work with them (and learn from them) to make their marks comply with the law.  This will be a learning process for all of us and not an excuse to punish an unwitting mistake."  (emphasis added)  Manufacturers should come to a reasonable conclusion based on their reading of the statute and their products and implement this plan by August 14, 2009.  The CPSC should not (and it sounds, will not) punish a company’s reasonable interpretation and implementation of a vague and burdensome law. 

Additionally, on May 12, 2009, the CPSC held its staff public forum on tracking labels.  The majority of public comments focused on the impracticability of tracking labels for certain products and the need for increased time to implement the tracking label requirements.  Even though additional time was not granted by the Commission for compliance and enforcement, the CPSC staff does understand the strain Section 103 places on manufacturers and retailers.  Since Section 103 includes the qualifier “to the extent practicable” and requires that the end consumer be able to “ascertain” certain information, it is reasonable (and the CPSC staff seems to be taking this same position) that unique identifiers or codes on children’s products will meet the tracking label requirement.  Because the CPSC staff will most likely not issue any formal guidance until after August 14, 2009, businesses must make a reasonable interpretation of the format, placement, and practicability of the tracking label requirement as it pertains to their products.  Put your stake in the ground and go on with your business.  

SGMA's Legal Task Force will be hosting a CPSC Conference Call on this issue along with other pressing CPSIA issues. Click here for more information on the call.

POSTED - May 2009