Consumer Product Safety Update

 In December 2008, we issued a Client Alert summarizing the Consumer Product Safety Improvement Act of 2008 (the “CPSIA”) and the numerous regulations issued by the Consumer Product Safety Commission (the “CPSC”) interpreting that legislation. Since the enactment of the CPSIA and the issuance of those regulations, there has been much confusion in the various affected industries as to what actions are required by the legislation and concern over the impact of the new rules on businesses, particularly small businesses. Indeed, many businesses in the toy industry referred to February 10,2009 (the date the regulations were to have taken effect) as “National Bankruptcy Day” because of the profound impact the regulations were expected to have on small businesses. 

 As a result of the public outcry over the CPSIA, the CPSC voted to issue a one-year stay of enforcement for certain (but not all) of the new testing and certification requirements. This stay will enable the CPSC to refine and clarify its regulations, and provides a much-needed (although decidedly imperfect) reprieve for the business community. The stay, which remains in effect until February 10, 2010,affects the testing and certification requirement relating to the total lead content and phthalate bans for certain products. The stay also suspends the general conformity certification requirement.  The stay does not apply to the certification and testing requirements applicable to the following regulations, which will be enforceable on and after the effective dates set forth in the regulations:

  •     Lead paint ban;
  •     Testing requirements for full-size   and non-full-size cribs and pacifiers;
  •     Ban on small parts;
  •     Lead content of children’s metal jewelry;
  •    Certification requirements for ATVs;
  •    Pre-CPSIA testing requirements; and
  •    Pool drain cover requirements.

Additionally, the new tracking and advertising labeling requirements are not affected by the stay. Effective February 10, 2009, print advertising materials (includingcatalogs) for certain toys and games intended for use by children must containthe same cautionary statements regarding choking hazards as the product’s package.Website content was required to carry these statements in December 2008. The trackinglabel requirement (which mandates that permanent labels be affixed to the productidentifying the product’s place and date of manufacture, as well as manufacturing batchnumber) will go into effect in August 2009.  Although the stay temporarily relievesmanufacturers from the obligation to have certain toys tested by an independent thirdparty laboratory, manufacturers are still required to comply with the underlying bansrequired to comply with the underlying bans as and when they become effective. Forexample, while a manufacturer is not required to certify, based on third partytesting, that an item does not contain lead in excess of the acceptable level identified inthe statute, the manufacturer is still prohibited from distributing productscontaining lead in excess of those levels.  Similarly, importers are prohibited fromdistributing foreign-made products with excessive lead content. The only relief is that the CPSC will not enforce these regulations until February 2010.  Unfortunately, this relief may only provide false hope for the manufacturer: we have found that retailers and other parties in the chain of distribution are asking for manufacturer certifications as to compliance with these safety rules, even though the CPSC has stayed the enforcement of the certification requirement.  Interestingly, the CPSC has remarked that the stay of enforcement has no effect on thrift and second hand stores because they are not required to test and certify products under the CPSIA. Lest these stores get complacent, the CPSC cautions that the products they sell may not contain lead in excess of 600 ppm in any accessible part.  So, although resellers are not bound by the testing and certification requirements, they nevertheless remain liable if their products violate any of the CPSIA’s bans or standards. If you have any questions regarding the new legislation or the CPSC’s decision topartially stay its enforcement, please feel free to contact your primary attorney at theFirm. If you are not currently represented by us, please contact Joanne M. Murray, Esq. at or (215) 230-7500 ext. 15.