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Publication

November 2008Client Alert

The Consumer Product Safety Improvement Act of 2008 Overhauls the Regulation of Consumer Products and Puts Manufacturers on the Defensive

On August 14, 2008, the Consumer Product Safety Improvement Act of 2008 (“CPSIA” or the “Act”) was signed into law by President Bush. Most experts predict that by 2010, the CPSIA will have created a roadmap for the plaintiffs’ bar to bring class action lawsuits against the manufactures of consumer products [1] sold in the United States. 2010 is when the Act requires the Consumer Product Safety Commission (“CPSC” or the “Commission”) to develop a public, searchable Internet database about product safety that will include an index of the complaints consumers submit to the Commission about supposedly unsafe products.

Well before 2010 the CPSIA requires action by virtually every manufacturer, distributor, importer, and retailer of consumer products in the U.S. Although the CPSIA was enacted in response to numerous recalls of imported children’s toys that contained lead paint and other hazards, the final version of the Act is about much more than toys. The consequences of CPSIA non-compliance are draconian – violating the Act can result in criminal liability and up to $100,000 per violation in civil penalties with a $15 million maximum.

This client alert discusses the significant provisions of the CPSIA including the dates by which certain aspects of the Act must be implemented.

General Product Certifications

As of November 12, 2008, all manufacturers of consumer products subject to any safety rules overseen by the CPSC must issue compliance certifications indicating that its products meet the requirements of the CPSIA. These certificates of compliance must, at the very least, be electronically accessible to consumers. A manufacturer should place a notice on the product indicating where its certificate of compliance can be found on the internet, and copies of the certificate must be furnished to retailers in the same fashion.

Third-Party Product Certifications

While general product certifications are required for all consumer products, children’s products (marketed to children age 12 or younger) must be certified by third-party accreditation services. The Act gave the CPSC and/or its designee the authority to accredit testing laboratories so long as a list of accrediting labs is kept on its website. Third-party testing requirements will be phased in on a rolling schedule:

CPSC Publishes Accreditation Procedure

Third-Party Testing Required

Lead Paint

September 22, 2008

December 22, 2008

Cribs And Pacifiers

October 2008

January 2009

Small Parts

November 2008

February 2009

Metal Jewelry

December 2008

March 2009

Baby Bouncers,
Walkers And Jumpers

March 2009

June 2009

300 ppm Lead Content

May 2009

August 2009

CPSC Children’s
Product Safety Rules

June 2009

September 2009























While all children’s products may not need to be certified by a third-party immediately, these products must be accompanied by general certificates of compliance by November 12, 2008.

Children’s Product Safety Enhancement

The CPSIA proscribes stockpiling an inventory of non-compliant products. The Act specifically prohibits manufacturing or importing a consumer product in advance of the effective date of a new product safety rule at a rate greater than the rate at which that product was produced or imported prior to the promulgation of that rule.

Lead

The CPSIA renders any children’s product with more than a specified amount of lead a banned hazardous substance. Lead levels must be reduced by the following amounts over the coming years: (i) 600 ppm by February 10, 2009; (ii) 300 ppm by August 14, 2009; and (iii) 100 ppm by August 14, 2011. Certain children’s products may be exempted or excused from these new lead limits if a component part containing lead is inaccessible. The CPSC plans to further promulgate rules regarding how this lead ban will affect certain electronic devices.

Phthalates

The CPSIA bans children’s products that contain certain concentrations of phthalates. Effective February 9, 2009, the Act bans children’s products containing more than 0.1% di-ethvlhexyl phthalate, dibutyl phthalate, or benzyl butyl phthalate. The CPSIA establishes an interim ban on children’s products that can be placed in a child’s mouth (toys/parts smaller than 5 cm) if such toys contain 0.1% of diisononyl phthalate, diisodecyl phthalate, or di-n-octyl phthalate. This interim ban will be effective on February 9, 2009 until further testing can be performed.

Durable Infant Products

Section 104 of the CPSIA requires the CPSC to establish safety standards for an array of infant and toddler products. These standards will be developed over a two year period. By August 14, 2009, the CPSC must promulgate a rule requiring manufacturers to issue a postage prepaid registration card with these products. This card will be kept in a database to facilitate an orderly recall should one become necessary. The Act also extends the scope of the current mandatory crib standard to apply to all cribs sold in the U.S.

Warnings and Labels

The CPSIA expanded the warning requirements for choking hazards for children’s toys and games. The Act requires that warnings under the Federal Hazardous Substances Act be included in all internet advertising by December 12, 2008, and in all catalogue advertising by February 10, 2009. In addition, by August 14, 2009, all children’s products must contain a tracking label or other distinguishing permanent mark that includes the product’s basic manufacturing information.

Import/Export Issues

In addition to the mandatory testing for imported consumer products described above, the Act also prohibits the export of non-conforming products to other countries. The Act further prescribes procedures for the destruction of imported consumer products that are not in compliance with the Act, and authorizes further studies to determine how to best protect American consumers from hazardous imported products.

Increased Enforcement and Recall Authority

The CPSIA vastly expands the enforcement and recall authority of the CPSC. First, the Act broadens the list of unlawful acts that can lead to civil and/or criminal liability for noncompliance with its new provisions. Second, it allows state attorney generasl to bring civil actions against companies who are not in compliance. Third, Congress increased the CPSC’s budget to enhance its ability to effectively enforce the CPSIA. Fourth, as noted above, the Act increased the severity of the civil and criminal penalties for noncompliance. Fifth, the CPSIA included a “Whistleblower Protection” provision that protects company employees who report violations of the Act to the CPSC. Sixth, the CPSIA requires all companies in the consumer product supply chain to keep better records. Seventh, and finally, the CPSIA vastly expanded the CPSC’s authority to initiate, conduct and oversee a consumer product recall.

For more information on the CPSIA, please contact Paul E. Benson at 414.225.2757, or pebenson@michaelbest.com or James B. Barton at 414.225.2779, or jbbarton@michaelbest.com.



[1] A “Consumer Product,” is broadly defined to include “any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.” 15 U.S.C. § 2052(a)(1).

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