Update on New Product Requirements for Children’s Products

Last month, we examined the general conformity certificates required of manufacturers and importers for regulated products other than children’s products beginning November 12. (See Are You Compliant With the New Product Safety Act?)

Since that article was written, the Consumer Product Safety Commission issued a final rule clarifying how the certificates are to be issued, and by whom. Let’s review those clarifications, and those parts of the Consumer Product Safety Improvement Act of 2008 that become effective this month: General conformity certificates for children’s products with a surface coating, and prescribed cautionary statements for toys that pose a choking hazard that are advertised and sold on the internet.

First, the clarification: On Nov. 10–just two days before the rule regarding general conformity certificates was to go into effect–the Commission issued a final rule clarifying the general conformity certificate requirements.

The original rule had required that three different types of firms could be required to provide the certificate – manufacturers, importers and private labelers. But the Commission determined that only the importer need issue a certificate for imported products, and that only the manufacturer need issue the certificate for domestically manufactured products.

The Commission also confirmed that conformity certificates could be issued electronically by a variety of means. Finally, the Commission emphasized that its initial enforcement efforts would be focused on the safety of the product–rather than on the certificate of compliance.

These clarifications mean that general conformity certificates may be issued more easily, by fewer firms, and with less fear.

Getting the lead out
Beginning Dec. 12, a new type of general conformity certificate addressing lead paint is required. Domestic manufacturers and importers of children’s products that include a surface coating capable of being scraped off will be required to show that the paint does not include lead above certain allowable limits.

The phrase “children’s products” is defined as a consumer product designed or intended primarily for children 12 years of age or younger. The language of the Act would suggest that the subjective intent of the manufacturer will be conclusive. But the standard for determining whether the product is “intended primarily” for children 12 years of age or younger is an objective one made by the Commission and does not depend upon the subjective intent of the manufacturer.

Instead, the Commission will look to such factors as any labels about the intended use of the product; whether the product is “appropriate” for use by children 12 years of age and younger; and whether it is “commonly recognized by consumers” as intended for use by a child 12 years of age or younger to determine whether or not any given product is a “children’s product.” The Commission will also look to its own Age Determination Guidelines, published in 2002, for guidance.

The Act does not immediately change the allowable amount of lead: The paint may not contain more than 0.06% lead or lead compounds, but that amount will decrease to 0.009% on Aug. 14, 2011. (Paint, under the Act, is generally defined as a fluid that changes to a solid when applied to a surface, but does not include printing inks or those materials that become a part of the substrate, such as pigment, or that become bonded to the substrate, such as ceramic glazing.)

Whether or not the paint contains unacceptable limits of lead may only be determined by third party testing laboratories accredited by the Consumer Product Safety Commission. The Commission has accredited more than 30 testing labs in the U.S., Asia and the Philippines; they are listed on the Commission’s Website (www.cpsc.gov).

New requirement: choking hazard cautionary statements
Also as of Dec. 12, cautionary statements are now required for all toys or games that present a choking hazard when they are advertised and sold on the Internet. The same cautionary statements will also be required for catalogs and other printed materials beginning Feb. 10.

Advertising for any toy or game intended for use by children that includes small parts, small balls or marbles, or any latex balloon, must include certain warning language and symbols in conspicuous and legible type set out by type, layout or color. The cautionary statement is required of any retailer, manufacturer, importer, distributor or private labeler that provides a direct means of purchase by a consumer.

Curiously, while the retailer has a duty to inquire as to the need for a cautionary statement as to any particular game or toy, the retailer will not be held in violation of the Act if the manufacturer, importer, distributor or private labeler provided false information, or did not provide any such information.

Next month: The Jan. 12, deadline for conformity certificates demonstrating third-party testing for compliance with regulations governing full-size cribs, non full-size cribs and pacifiers.

Attorney Emilia L. Sweeney is a principal at Carney Badley Spellman (http://www.carneylaw.com). She has advised clients who manufacture or sell consumer products in the U.S. on compliance with rules and regulations governed by the Consumer Product Safety Commission for more than a dozen years.

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