Overview
The recent Consumer Product Safety Improvement Act amends the existing Consumer Product Safety Act, adding to compliance requirements. Consumer product companies, including private labelers, will have to certify their products are in compliance with all relevant regulations and to note which regulations are applicable. These new regulations will affect particularly those companies selling products directed primarily to children twelve and under. All U.S. consumer product companies will need to address these regulations, as will all foreign companies that sell consumer products in the U.S.
Background
A new consumer product safety law, the Consumer Product Safety Improvement Act, amended the existing Consumer Product Safety Act. The new Act became effective November 12, 2008 and may require businesses to actively seek certifications of compliance with various safety regulations for products which some businesses may have not considered as regulated other than in instances of unsafe product defects.
The act covers "consumer products," which are defined as "any article or component thereof produced or distributed i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or ii) for the personal use, consumption or enjoyment of a consumer in or around permanent or temporary household or residence, a school, in recreation, or otherwise". The affected products are those that are regulated by the Consumer Product Safety Commission (CPSC), including unsafe defective products and those regulated under other acts enforced by the CPSC like the Poison Prevention Packaging Act. By statutory definition, consumer products do not include tobacco products, motor vehicles, pesticides, aircraft and aircraft engines, boats, drugs, devices, cosmetics and foods.
The implementing regulations from the CPSC are late, leaving implementation details and methods of compliance unclear at this time.
The term "consumer products" has always been quite broad, and includes many items that may have been largely ignored by businesses from a regulatory perspective in the past. Because of the certification requirements imposed by the Act, businesses which previously considered their consumer products unregulated or to be regulated by an agency other than the CPSC may now be required to actively seek various conformity certifications for those products. For example, children's shoes or lead in food packaging, which producers may have considered only as an adulteration issue (FDA), may now necessitate an independent certification of regulatory compliance.
The Act addresses two classes of regulated consumer products: (1) consumer products in general; and (2) consumer products primarily directed to children twelve and under. The two classes have different requirements for compliance with the new law. With regard to regulated consumer products in general, the law requires the manufacturer (including the importer) and a private labeler (if there is one) to certify that the products are in compliance with all relevant regulations and to note which regulations are applicable. For those products directed to children, the law requires an independent lab certification and that it accompany each shipment of products.
Due to the short implementation period, the CPSC has specified that for an interim period, the following parties are responsible for the certification:
- For domestically made products, the manufacturer must provide the certification;
- For imported products, the importer must provide the certification.
Currently the Consumer Product Safety Commission is hedging with "interim guides", e.g., that the importer will certify and "what is important is compliance with the safety rules and not the certification". It appears that a product already "on the shelf" is not covered by the new law. However, products in transit appear to be another issue.
Because the regulations implementing specific rules have not yet been issued, the requirements are unclear and present risks to importers, manufacturers and distributors. Additionally, major retailers may promulgate rules of their own which are more stringent than the government rules so that they can be "safe".
By November 12, 2009, manufacturers will be additionally required to start providing distinguishing permanent marks on the product and its packaging identifying the manufacturer or private labeler, location and date of production, batch, run number or other identifying information regarding the product.
Husch Blackwell Sanders is looking closely at the new requirements and is monitoring CPSC updates, status of rulemaking, refinements and clarifications necessary to address clients' issues. These laws are applicable to both domestic manufacturers, distributors, retailers, importers, and to foreign manufacturers that sell or bring consumer products into the United States. If you have any questions regarding the above, contact us.
For more information, please visit http://www.huschblackwell.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
