Citing "chaos and confusion" in the marketplace, the U.S. Consumer Product Safety Commission voted on January 30, 2009, to delay for one year the enforcement of certain testing and certification requirements set forth in the Consumer Product Safety Improvement Act (CPSIA).
The decision will postpone the need for manufacturers and importers to test and certify that their products meet new total lead content limits (600 ppm), phthalate limits (1000 ppm) and mandatory toy standards that are scheduled to take effect on February 10, 2009. The new standards -- especially the lead standard, which will be given retroactive effect -- had caused particular concern among charities, thrift shops, resellers and small retailers that sell aftermarket products.
Significantly, the new safety standards on lead, phthalates and toys will take effect as scheduled on February 10, 2009. It is only the requirement that products be tested and certified as meeting those standards that will be delayed until February 10, 2010. As explained by Acting Commissioner Nancy Nord, "Thrift shops, charities and other sellers will have to decide whether they will continue to sell children's clothing and other products that have not been tested, even though no one has suggested that they are unsafe."
Commissioner Thomas H. Moore acknowledged that delaying testing and certification while holding sellers to the new safety standards "may seem like a Catch 22 to some people." However, he noted that if smaller manufacturers who have voiced concern over the law's application already are making safe products, "they have no reason to fear this interim period."
Both Mr. Moore and Ms. Nord said the "limited time-out" was needed to allow the Commission an opportunity to rule on exemptions and exclusions from the lead provisions and resolve ambiguity as to whether component testing can be used as a surrogate for whole-product testing. Mr. Moore said the Commission may not have the authority to require component part makers to test and certify their products, but "the demands of their customers will force them to bring their products into compliance." Mr. Moore predicted, as a consequence, the emergence of "a huge market for craft and sewing and other components" used by smaller manufacturers.
The one-year stay on testing and certification will not apply to the following products:
1. Children's products that are subject to:
the ban on lead in paint and other surface coatings effective for products made after December 21, 2008;
the standards for full-size and non full-size cribs and pacifiers effective for products made after January 20, 2009;
the ban on small parts effective for products made after February 15, 2009; and
the limits on lead content of metal components of children's jewelry effective for products made after March 23, 2009;
2. Certification requirements for ATV's manufactured after April 13, 2009;
3. Pre-CPSIA testing and certification requirements for such products as automatic residential garage door openers, bike helmets, candles with metal core wicks, lawnmowers, lighters, mattresses, and swimming pool slides; and
4. Pool drain cover requirements of the Virginia Graeme Baker Pool & Spa Safety Act.
Barbara K. Gotthelf
David J. Cooner
Edward J. Fanning, Jr.
David R. Kott
Jeffrey M. Thomen
Disclaimer by McCarter & English, LLP: This publication is for informational purposes only and is not offered as legal advice as to any particular matter. No reader should act on the basis of this publication without seeking appropriate professional advice as to the particular facts and applicable law involved.
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