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CPSC Publishes Rules on Testing and Certification of Children’s Products

Tuesday, November 08, 2011
Sandler, Travis & Rosenberg Trade Report

Four new Consumer Product Safety Commission rules associated with testing and certification of children’s products will be published in the Nov. 8, 2011, Federal Register.

Testing, Certification and Labeling of Consumer Goods. The Consumer Product Safety Improvement Act of 2008 requires that every manufacturer of a children’s product subject to a children’s product safety rule certify that the product complies with the applicable rule based on testing conducted by a third-party conformity assessment body accredited to conduct such tests. This final rule establishes requirements and procedures for manufacturers to certify children’s products under this law.

The CPSIA also requires the CPSC to initiate a program by which a manufacturer or private labeler may label a product as complying with the applicable safety rules. It also requires the Commission to establish protocols and standards for ensuring that a children’s product is tested periodically and when there has been a material change in the product, for the testing of representative samples to ensure continued compliance, for verifying that a product tested by a conformity assessment body complies with applicable safety rules, and for safeguarding against the exercise of undue influence on a conformity assessment body by a manufacturer or private labeler. This final rule implements these requirements, except with respect to the testing of representative samples (which is the subject of a separate rule; see below) and the verification of a tested product’s compliance with applicable safety rules.

However, several sections included in the proposed rule are not included in the final rule. Proposed subpart B pertaining to a reasonable testing program for non-children’s products is not included and may be addressed in a future rulemaking; however, manufacturers of such products subject to a product safety rule, ban, standard or regulation are still required to certify that their products comply with all applicable safety rules based on a test of each product or a reasonable testing program. A proposed section that would provide a partial exemption from periodic testing for low-volume products is not included because a recent CPSIA reform bill asked the Commission to examine means to reduce the cost of third-party testing requirements, contained special rules for small batch manufacturers and directed the Commission to consider alternative testing requirements or to exempt small batch manufacturers from certain third-party testing requirements. Also excluded is a section that would have established requirements for remedial action for children’s products.

This final rule will become effective Feb. 8, 2013, and apply to products manufactured after that date. The CPSC expects the rule to have “a significant adverse impact on a substantial number of small businesses,” although the recent CPSIA reform bill “may provide significant relief from the third-party testing costs” to small batch manufacturers.

Component Part Testing. The CPSC will implement as of Dec. 8 a final rule on component part testing that is intended to give all parties involved in testing and certifying consumer products pursuant to sections 14(a) and 14(i) of the Consumer Product Safety Act the flexibility to conduct or rely on required certification testing where such testing is the easiest and least expensive. For example, it may be more efficient to test component parts of consumer products before final assembly. Such testing may be done by component part suppliers so that test reports can be provided to multiple manufacturers using those parts. Alternatively, manufacturers who assemble finished products can test component parts as they are received to reduce costs where, for example, the same component part is used in multiple product lines. The CPSC believes this final rule allows for maximum flexibility because a domestic manufacturer or importer who is required to certify consumer products pursuant to 16 CFR part 1110 can base such certification on one or more of the following: component part testing, component part certification, another party’s finished product testing or another party’s finished product certification.

The CPSC states that although relying on another party’s finished product testing or certification, or on component part testing before final assembly of a consumer product, is voluntary, once a party decides to conduct or rely upon either, the requirements in this rule apply.

Samples. The CPSC has issued 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 for five years. Comments on this proposal are due no later than Jan. 24, 2012.

Reducing Costs. The CPSC is also inviting comments through Jan. 24, 2012, on opportunities to reduce the cost of third-party testing requirements. Specific areas of inquiry are as follows.

• the extent to which the use of materials subject to the regulations of another government agency that requires third-party testing of those materials may provide sufficient assurance of conformity with an applicable consumer product safety rule, ban, standard or regulation without further third-party testing

• the extent to which modification of the certification requirements may have the effect of reducing redundant third-party testing by or on behalf of two or more importers of a product that is substantially similar or identical in all material respects

• the extent to which products with a substantial number of different components subject to third-party testing may be evaluated to show compliance with an applicable rule, ban, standard or regulation by third-party testing of a subset of such components selected by a third-party conformity assessment body

• the extent to which manufacturers with a substantial number of substantially similar products subject to third-party testing may reasonably make use of sampling procedures that reduce the overall test burden without compromising the benefits of third-party testing

• the extent to which evidence of conformity with other national or international governmental standards may provide assurance of conformity to consumer product safety rules, bans, standards or regulations

• the extent to which technology, other than that already approved by the Commission, exists for third-party conformity assessment bodies to test or to screen for testing consumer products subject to a third-party testing requirement

• other techniques for lowering the cost of third-party testing consistent with assuring compliance with the applicable consumer product safety rules, bans, standards and regulations

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