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CPSC Adopts Rules on Third-Party Testing for Children’s Products, Seeks to Minimize Costs

Wednesday, October 26, 2011
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission announced Oct. 20 the approval of several new rules associated with testing and certification of children’s products, as required under the Consumer Product Safety Improvement Act of 2008. The CPSC states that these new rules are intended to help clarify the options for testing upon which firms can base their certifications. However, one commissioner said the new rules impose “an overreaching testing and certification regime that will drive up costs for consumers and deprive them of choices while adding only nominally to consumer safety.”

Third-Party Testing. Domestic manufacturers, importers and private labelers will be required to test and certify that their children’s products comply with U.S. product safety standards. The CPSC has now adopted a framework regarding third-party periodic testing to ensure continued compliance with this requirement. If there is a material change to the product, such as changes in the product design, manufacturing process or source of component parts, firms must re-test and re-certify that the product complies with federal safety standards. In addition, firms must keep records on this testing and certification. Children’s products that comply with the law may bear the label, “Meets CPSC Safety Requirements.” This testing and certification rule will go into effect 15 months after it is published in the Federal Register.

Component Part Testing. In an effort to reduce the burden on affected firms, the CPSC approved a rule allowing firms to use component part and finished product testing conducted by their suppliers to meet the testing and certification requirements. This rule will be effective 30 days after it is published.

Samples. The CPSC also voted to issue a proposed rule under which firms could use for periodic testing product samples that are known to be representative of all the product manufactured or imported since their last periodic or certification test. Manufacturers would be required to document their testing and keep those records.

Reducing Costs. Finally, the CPSC voted to publish in the Federal Register a notice seeking public comment on opportunities to reduce the cost of third-party testing requirements.

Dissent Focuses on Burdens, Costs. Commissioner Nancy Nord voted against the third-party testing rule, which she said represents “bad policymaking.” She asserted that not only will this rule “impose substantial costs on consumers, it may slow or stop the pace of innovation in the design and manufacturing of children’s products.” The CPSC is also “knowingly imposing significant and unfair costs on small business,” which can expect to see nearly 12% of their revenues consumed by testing costs, and removed a proposed exemption for low-volume manufacturers.

Nord added that this rule does not “clearly explain what a firm must do in a testing program to meet the CPSC’s expectations” and instead “gives the CPSC authority to make post hoc judgments about what should have be done.” Even worse, she said, the CPSC has “deprived manufacturers of the certainty they need to plan their quality assurance/quality control systems” by retaining a provision allowing the Commission to finalize the reasonable-testing program provisions from the proposed rule without going through notice-and-comment rulemaking again.

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