By Christopher J. Predko
October 1, 2009
If you make, import, buy or sell children’s products, the recently enacted Consumer Product Safety Improvement Act of 2008 is going to drastically change the way you do business.
The new law is the widest-sweeping, most aggressive product safety enactment since the 1972 creation of the U.S. Consumer Product Safety Commission, or CPSC. Not only does it expand regulatory authority of the Commission, the legislation also puts new, tougher obligations on manufacturers, importers, distributors and retailers of consumer products, particularly those designed for children. Substantially higher penalties, which went into effect August 14, await scofflaws who choose to ignore the new requirements.
So whether you make sporting equipment, import bicycles or sell games, the Consumer Product Safety Improvement Act, or CPSIA, has new provisions designed to improve the safety of consumer products that you need to fulfill. Major changes include:
-¢ Lead ban. New limits for allowable lead content into all children’s products went into effect in February as the first of a three-year planned phase-down of lead content limits. Now, any children’s products with more than 300 parts per million, or ppm, of lead, are banned.
-¢ Phthalates ban. Commonly used in plastics to increase flexibility and durability, phthalates have been linked to a number of health issues and are now being phased out around the world. The CPSIA bans the manufacture and sale of toys and childcare items with certain concentrations of phthalates.
-¢ Mandatory toy safety standards. The CPSIA adopted as mandatory toy safety standards that were previously voluntary. The new standards establish stringent testing and labeling requirements as they relate to magnets, toxic substances, choking hazards, batteries and other issues.
-¢ Mandatory third-party testing. Manufacturers and importers must now test their products using an accredited and independent testing lab and certify that they meet certain CPSC standards. The Act also bans importing or selling products in the United States without this certification.
-¢ Product tracking labels. Manufacturers and importers must also place permanent labels on children’s products and packaging that allows consumers to determine who made the product, where it was made and when, including specific manufacturing characteristics that pinpoint batch or lot numbers.
-¢ Product warnings in advertising. Retailers and distributors of toys and games must now include certain product warnings in all of their hard-copy and Internet advertising for the products.
-¢ General conformity certificates. Any manufacturer, private labeler or importer of consumer products regulated by the CPSC must issue a “general conformity certificate” for each product that certifies that product complies with applicable tests, rules, bans and standards.
-¢ Heightened reporting requirements. Prior to the CPSIA, consumer products companies need only report a problem that could create a “substantial product hazard,” which meant a risk of serious injury or death. Companies must also now report when their products fail to comply with the standards.
-¢ Increased civil penalties. Consumer products now face substantially increased civil penalties for violating the Act, increasing from $8,000 to $100,000 for each violation to a maximum of $15 million (up from a cap of $1.8 million).
The Consumer Product Safety Commission has begun sending the clear message that it intends to aggressively enforce these new rules. Since the CPSIA has been in place, the commission has issued record-high civil penalties against manufacturers, importers and retailers of products that violated child safety rules.
These stepped-up enforcement efforts make it critical for everyone involved in the manufacturing and sale of consumer goods, especially those targeted to children, to learn more about the Consumer Product Safety Improvement Act to determine what new requirements apply to their products - and take the necessary steps to make changes.
Christopher J. Predko is a partner at Warner Norcross & Judd LLP, an AmLaw 200 firm and one of the largest in Michigan. He chairs the firm’s Consumer Product Safety Group and may be reached at [email protected].