Manufacturers and importers of children's products, including toys, apparel, sporting goods and jewelry, will soon be subject to yet another safety-testing regulation addressing several vital issues related to such testing: the frequency of testing, the selection of samples for testing and recordkeeping. Failure to follow the new requirements could result in criminal and civil penalties, as well as refusal of admission of a product into the United States.
With the passage of the Consumer Product Safety Improvement Act of 2008 (CPSIA), mandatory third-party testing was established for children's products to ensure that such products comply with safety regulations enforced by the U.S. Consumer Product Safety Commission (CPSC). Children's products are products intended primarily for use by children 12 years of age and younger. Since 2008, importers and manufacturers of children's products have paid millions of dollars to CPSC-approved third parties to test their products at least once pursuant to the CPSIA. Unfortunately, neither the CPSIA nor the testing rules issued in November 2011 provided clear guidance on a number of testing issues, including sampling procedures and recordkeeping.
The Testing Pertaining to Product Certification Rule as amended (found at 16 C.F.R Part 1107) provides the industry with much-needed clarity on certain safety testing issues. Specifically, the regulation requires "periodic testing" pursuant to which children's products must be tested at least once a year by CPSC-approved third-party testing laboratories. However, this interval may be extended between two and three years if manufacturers/importers develop certain internal testing programs and protocols. Additionally, the regulation states that if a product undergoes a "material change" that includes such things as a design change, manufacture process change, component part change and component supplier change, the product must be retested and one cannot simply wait until one of the above periods has run. The new regulation clarifies that a sufficient number of samples of a certain product must be tested, that simply testing one sample is not enough and that sampling procedures may vary depending on the nature of the product in order to ensure continuing compliance with all applicable children's product safety rules. The regulation also requires that records of such testing, including the sampling procedures and the basis for inferring compliance during the prescribed testing intervals, must be maintained for at least five years and that these records must be produced within 48 hours if requested by the CPSC.
Domestic manufacturers, as well as retailers and wholesalers who import products made abroad, will be directly impacted by these rules, because they are primarily responsible for testing and issuing certificates of compliance. Some of the key industries affected by this regulation include the toy industry, the apparel industry, the sporting goods industry and the jewelry industry. Any impacted business should consider whether its compliance programs are set up to deal with these new requirements, which fall into place on February 8, 2013.
If you have any questions about the information addressed in this Alert, please contact Robert B. Hopkins, Paul S. Rosenlund, any member of the Product Safety, Compliance and Recalls Practice Group, any member of the Products Liability and Toxic Torts Practice Group, any member of the Fashion, Apparel and Luxury Goods Group, any member of the International Practice Group or the attorney in the firm with whom you are regularly in contact.
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