CPSC Issues One Year Stay of Testing and Certification Requirements for Certain Products

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February 2, 2009

The U.S. Consumer Product Safety Commission (CPSC) has voted to issue a one year stay of enforcement for certain testing and certification requirements for manufacturers and importers of regulated products, including products intended for children 12 years of age and younger.   These requirements, which were scheduled to take effect February 10, 2009, are part of the Consumer Product Safety Improvement Act of 2008 (CPSIA) and added certification and testing requirements for all products subject to CPSC standards or bans.

Specifically, the CPSC’s decision provides limited relief from the testing and certification limits for total new lead content limits (600 ppm), phthalates limits for certain products (1000 ppm), and mandatory toy standards, among other things.   In light of this decision, manufacturers and importers of children’s products will not need to test or certify to these new requirements.  Manufacturers and importers, however, will need to meet the lead and phthalates limits, mandatory toy standards and other requirements. 

A press release issued by the CSPC indicates that the decision is intended to allow CPSC staff additional time to finalize four proposed rules which could potentially relieve certain materials and products from lead testing and to issue more guidance on when testing is required and how it is to be conducted.   The stay will remain in effect until February 10, 2010, at which time a Commission vote will be taken to terminate the stay.

Manufacturers and importers should note that this stay does not apply to the following:

• Third party testing and certification of children’s products subject to:
  • The ban on lead in paint and other surface coatings which took effect 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.
• Certification requirements applicable to all-terrain vehicles (ATVs) manufactured after April 13, 2009;
• Pre-CPSIA testing and certification requirements, including for: automatic residential garage door openers, bike helmets, candles with metal core wicks, lawnmowers, lighters, mattresses, and swimming pool slides; and
• Pool drain cover requirements of the Virginia Graeme Baker Pool and Spa Safety Act.

The Commission’s stay of enforcement may provide some temporary, limited relief to crafters, children’s garment manufacturers and toy makers who had been subject to the testing and certification requirements under the CPSIA.  While these businesses will no longer need to issue certificates based on testing of their products (until additional decisions are issued by the CPSC), all businesses must ensure that their products conform to all safety standards and similar requirements, including the lead and phthalates provisions of the CPSIA.

Finally, the press release issued by the CPSC states that it “trusts that State Attorneys General will respect the Commission’s judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the last, e.g., the sale of recalled products.”

For additional information concerning this stay of enforcement or the new testing and certification requirements under the CPSIA, please contact a Barnes/Richardson attorney.