Earlier this year, manufacturers (including importers of record) became subject to several new children’s product safety rules: the lead substrate, phthalate and ASTM F963 mandatory toy safety standards. These standards join the small parts and lead paint rules, which have been in effect for some time. Several recent actions by Congress and the CPSC, however, provide limited relief for certain manufacturers from these standards.
The CPSC approved a component testing rule as a response to industry concerns about the burdens of product testing and duplicative testing. The component testing rule, which went into effect in December 2011, permits manufacturers to obtain certificates from suppliers of component parts and to rely on those certificates, as long as the manufacturer uses “due care” to justify such reliance. This is critical, since the manufacturer is still responsible for its product’s compliance with the underlying safety standards. Therefore, manufacturers have to be vigilant in maintaining extensive documentation, including copies of the certificates on which they rely, along with the third party test reports.
In August 2011, Congress enacted H.R. 2715, which amends the CPSIA and the CPSA. H.R. 2715 offers a reprieve for small businesses that manufacture a limited quantity of products. As a result of H.R. 2715, the CPSC is required to develop alternative, low-cost testing requirements for small manufacturers. In response, the CPSC promulgated a rule that provides that small batch manufacturers are exempt from certain third party testing requirements for covered products. To be considered a “small batch” manufacturer, a business must have no more than $1 million in gross revenue from sales of consumer products in the previous calendar year. “Covered products” are those of which the manufacturer made no more than 7,500 units in the previous calendar year. To qualify for the exemption, a manufacturer must first register with the CPSC as a small batch manufacturer (go to www.SaferProducts.gov). Following this registration, the manufacturer will be exempt from some, but not all, third party testing requirements. The exemption applies to the lead content, phthalate, and ASTM F963 mandatory toy safety standards. It does not provide relief from the lead paint rule, children’s metal jewelry standard or rules relating to infant and toddler products. While the exemption provides relief from certain third party testing requirements, the manufacturer is still required to certify that products comply with the underlying safety standards.
Another significant change could provide a respite from the tracking label requirement for some manufacturers. The CPSC now has the authority to exclude certain products from this requirement or to provide alternative labeling requirements if the statutory tracking label requirements are determined not to be practicable for those products.