Are You Compliant With the New Product Safety Act?

In the wake of multiple highly publicized toy recalls last year, Congress enacted the comprehensive and complex act known as the Consumer Product Safety Improvement Act of 2008. Although children’s products were the impetus for the Act, it affects all consumer products.

The Act addresses such diverse matters as general conformity certification for all regulated consumer products, mandatory toy safety standards, expedited rulemaking and enhanced penalties for noncompliance. That means manufacturers, importers, distributors and retailers must now meet higher product safety standards and communicate with the public regarding those safety standards in a form not previously required.

Each of these has different effective dates. Here are some of the deadlines and requirements subject firms will face under the Act.

General conformity certification
Beginning Nov. 12, every manufacturer, importer and private labeler of a regulated consumer product will be required to supply a certificate showing that the product has been tested, and that it complies with the applicable regulations. (Children’s products must be tested by certain accredited third-party testing facilities.

Many testing facilities have not yet been accredited, so are subject to different compliance dates. These dates will be addressed in future articles. A certificate is required, however, only for those consumer products whose manufacture is guided in some way by a rule, ban, standard or regulation under any act enforced by the Consumer Product Safety Commission (CPSC).

Generally, a consumer product is any product produced or distributed for sale to a consumer for use in the home, at school, or for recreation, and governed by the CPSC. Products governed by other federal agencies, such as tobacco and cosmetics, are not “consumer products.”

There are more than 15,000 consumer products over which the CPSC has jurisdiction, but only about 280 categories of regulated products. Still, there are a large number of regulated consumer products, ranging from antennas, to wearing apparel, to products containing xylene.

The requirements for the general conformity certificate are fairly straightforward: It must certify that the consumer product complies with the applicable regulations based upon a test of the product, or upon a reasonable testing program. Each certificate must specifically identify the particular rule, ban, standard or regulation that applies to that product as well as the manufacturer, importer or private labeler issuing the certification.

The general conformity certificate must include the date and place where the product was tested and the name, address and telephone number of the individual responsible for maintaining records of the test results. The certificate must be in English—though it may also include the same content in another language—and accompany the product or shipment and be furnished to the distributor or retailer.

While the Act allows the imposition of a penalty of up to $100,000 for each failure to provide a general conformity certificate, and up to a dizzying $15 million for a related series of violations, it seems unlikely the Commission will actually be forced to seek a penalty for such a violation. In this economy, a failure to supply a certificate will give retailers who find themselves in an overstocked position an opportunity to simply reject delivery long before it reaches the consuming public.

In the end, rejection of a shipment by retailers for a failure to comply with any of the multiple provisions of the Act may be the real penalty imposed.

Next time we’ll look at the Dec. 12, 2008 deadlines: Conformity certificates demonstrating third-party testing for children’s products containing lead paint and Internet advertising.

Attorney Emilia L. Sweeney is a principal at Carney Badley Spellman ( 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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