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CPSC to Exercise Enforcement Discretion on Compliance Certificates for Low-Risk Adult Apparel

Friday, February 26, 2016
Sandler, Travis & Rosenberg Trade Report

The Consumer Product Safety Commission adopted unanimously Feb. 24 a proposal that Commissioner Joe Mohorovic said will free businesses from having to create compliance certificates for adult clothing made from fabrics that the CPSC says are inherently safe and compliant. Mohorovic said the change should save businesses $250 million a year and that he hopes the CPSC will now turn to reducing the burden associated with third-party testing and certification rules for children’s products.

The Consumer Product Safety Improvement Act of 2008 requires a manufacturer or importer of a product subject to a CPSC rule to certify, based on a test or reasonable testing program, that the product complies with that rule. Ordinary adult apparel is subject to a single rule, the flammability standards established under the Flammable Fabrics Act.

However, CPSC has also established a list of fabrics that it has determined will necessarily and consistently meet the flammability standard. These include (1) plain surface fabrics, regardless of fiber content, weighing 2.6 ounces per square yard or more, and (2) all fabrics, both plain surface and raised-fiber surface textiles, regardless of weight, made entirely from any of the following fibers or combinations thereof: acrylic, modacrylic, nylon, olefin, polyester and wool.

In light of that determination, effective March 25 the CPSC will not pursue compliance or enforcement actions against importers, manufacturers or private labelers for failure to certify or to issue, provide or make available to the CPSC a general conformity certificate with respect to adult wearing apparel that is exempt from testing because it is made entirely from one or more of the listed fabrics. This enforcement discretion will not apply to any adult apparel not meeting this criterion, and any relevant misrepresentation or omission could result in compliance or enforcement action and potential criminal and/or civil penalties. In addition, these products must still comply with all flammability requirements under the FFA and failure to do so will still subject the products to enforcement action.

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