Articles
Customs Alert - Update - Consumer Product Safety Improvement Act Of 2008
By C.J. Erickson & Carl R. Soller
May 1, 2009
The Consumer Product Safety Improvement Act of 2008 (the “CPSIA” or the “Act”) was signed into law on August 14, 2008 and has been evolving since that date. Many of its provisions are phased in over time, some of which have already been implemented. The following is a summary of the Act incorporating new rules, guidance and interpretations.
Product Certification
The General Conformity certification requirement went into effect on November 12, 2008. Commencing on that date, all consumer products subject to a Consumer Product Safety Commission (“CPSC”) rule, ban, standard or regulation are subject to certification that the products meet or exceed acceptable standards.
Certifying Party
On November 10, 2008, the CPSC published a Final Rule designating the importer as the sole entity that must issue the certificate in the case of an imported product. The domestic manufacturer is the sole entity that must issue the certificate for domestically produced goods.
Submission of Certificate
The certificate must be available no later than the time when the product or shipment is available for inspection in the United States. The certificate does not have to physically travel with the imported merchandise, and is not presented to Customs (“CBP”) with the entry. The certificate must only be presented to the CPSC or CBP upon request. CBP has confirmed that it does not require the certificate at this time and the absence of the certificate will not affect admissibility of imported merchandise.
Information and Form
Certificates of Compliance must identify the covered products, cite the applicable rule, ban, standard or regulation, identify the importer or domestic manufacturer and record keeper, list the date and place of manufacture, and the third party testing information, if applicable. All information must be in English. Electronic copies of the certificates are acceptable provided they are reasonable accessible.
Goods in Inventory
The CPSC General Counsel has concluded that children’s products containing lead in excess of the new phased in limits cannot be sold from inventory or appear on store shelves after February 10, 2009. The February 2009 lead limit of 600 ppm is lowered to 300 ppm in August 2009 and 100 ppm by August 14, 2011, if technologically feasible. Accordingly, children’s products with any reasonably accessible part containing 600 ppm of lead must be removed from shelves no later than February 10, 2009. The General Counsel has recently upheld her initial determination as to lead content, but has modified her view with regard to phthalates. Accordingly, the new phthalates restrictions will not be applied retroactively to goods manufactured prior to the effective date of February 10, 2009.
Wearing Apparel
The CPSIA certification requirements generally cover flammability, lead in surface coatings, lead content and phthalates. The importers’ obligations will vary depending on the product, the age of its intended user, and the date of production.
Flammability
Commencing November 12, 2008, all adult and children’s wearing apparel, with limited exceptions, must be accompanied by a General Conformity Certificate certifying compliance with current flammability standards applicable to that product. Wearing apparel and clothing textiles are subject to CPSC flammability rules even though certain age based garments and fabrics are exempt from testing. The CPSC has stated that even though certain fabrics do not require testing, they still require certification that they are exempt. Fabrics exempt from testing include plain surface fabrics, regardless of fiber content, weighing 2.6 ounces per square yard or more; and plain surface and raised-fiber surface fabrics, regardless of weight, made entirely from any combination of the following fibers: acrylic, modacrylic, nylon, olefin, polyester, wool. The age based exception would apply to children’s sleepwear sized from 0 to 9 months.
Lead
Surface coated component materials such as buttons, snaps and zipper pulls for children’s apparel must be certified as to lead paint standards. The lead paint limit is currently 600 ppm for children’s products and will be lowered to 90 ppm on August 14, 2009. Third party testing for lead paint is required for goods manufactured after December 21, 2008.
The CPSC has also identified fabrics as substrate materials, which will require testing for total lead limits in children’s apparel. The lead content limits for all children’s products go into effect February 10, 2009 (600 ppm) and will be lowered on August 14, 2009 (300 ppm). Third party testing for lead content is required for goods manufactured after August 14, 2009. There are no lead certification requirements for adult apparel.
Phthalates
The CPSIA bans phthalates in two groups of children’s products, one on an interim basis and one permanently. The interim band covers toys that can be mouthed, whereas the permanent ban more broadly covers children’s toys and child care articles designed to facilitate sleep, feeding, sucking or feeding of children 3 or younger. Children’s apparel such as sleepwear and bibs are considered child care articles and are subject to the ban on phthalates. Rainwear, for instance, would not be subject to the ban on phthalates even if designed for a child under 3 years of age. The ban does not apply to adult wearing apparel.
Solicitation of Comments
The CPSC is seeking comments on a number of issues relating to the CPSIA including civil penalty criteria. Comments are due prior to December 18, 2008.
Conclusion
The new certification regulations are currently in effect and third party testing requirements will soon follow. Importers and domestic manufacturers must ensure that they have procedures in place to meet these new obligations in a way that minimally impacts existing procedures while maintaining security of confidential business information.
For additional information on the CPSIA and how it affects your business, please contact C.J. Erickson (212) 790-9274 (cje@cll.com) or Carl R. Soller (212) 790-9231 (crs@cll.com).