Tag: consumer product safety commission

Let’s Circle Back (and eFile) after the Holidays

The Consumer Product Safety Commission launched its eFiling Beta Pilot a little over a year ago. Non-pilot participants were invited to participate in voluntary eFiling last summer, and the CPSC extended this stage to October 10, as it continued to work on a revised rule. The CPSC had anticipated completing a final rulemaking by the end of its fiscal year, which would have meant a full system implementation around January 1, 2025 – but regardless of when the final rule is published, the CPSC has proposed that the requirements go in effect 120 days after publication in the Federal Register.

Notably, the National Association of Manufacturers submitted comments regarding the rulemaking, highlighting issues with the proposed rules, including the scope of the filing system, technical and financial burdens for implementing the system, and the feasibility of complying with the proposed 120-day effective date window. It remains to be seen whether the CPSC will take these comments into consideration when the staff releases the updated package in the coming weeks, with a commission vote expected before the end of the year.

The eFiling program is the CPSC’s initiative to enable importers of regulated consumer products to file certain data from Certificates of Conformity (COC) electronically with Customs and Border Protection (CBP).This is not merely emailing existing COCs to CPSC or CBP, but digitizing individual data elements of the COC either directly into CBP’s Automated Commercial Environment (ACE) or through CPSC’s Product Registry.

There are many misconceptions related to the new rule and eFiling process and CPSC has created a broad resource library to help importers of record, the parties ultimately responsible for eFiling, comply with the new requirements. Any product that requires a COC today (whether a General Certificate of Conformity or a Children’s Product Certificate) will require eFiling under the new rule. However, the CPSC intends to honor enforcement discretions applied to certain products before the implementation of the eFiling program.

Internal business conversations between import compliance personnel, customs teams, product compliance teams, and brokers to discuss digitizing COC data and developing methods to manage trade parties, such as implementing identification mechanisms within testing programs, should begin, if they haven’t already. The CPSC also has an eFiling newsletter that is published quarterly and is due for another installment in the next month.

Once the final rule is published, eFiling will be a mandatory. So, to ensure compliance, the seamless import of goods, fewer holds at port, fewer targeted shipments, and reduced costs – implicated parties should get familiar and quickly for this fast approaching requirement.

eFiling is a CPSC initiative under which importers of regulated consumer products will electronically file (eFile) data elements from a certificate of compliance with U.S. Customs and Border Protection (CBP), via a Partner Government Agency (PGA) Message Set.

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For more news on the CPSC eFiling Beta Pilot, visit the NLR Consumer Protection section.

New Children’s Product Testing and Certification Rule Set to Impact Manufacturers and Importers on February 8

The National Law Review recently published an article written by Charles A. Samuels and Matthew Cohen with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding Children’s Product Testing:

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On February 8, 2013, manufacturers and importers of children’s products (a consumer product designed or intended primarily for children 12 years of age or younger) will be required to follow certain testing and certification protocols established by the U.S. Consumer Product Safety Commission (“CPSC”).1 The new rule provides guidance on how to ensure a product meets all applicable safety standards over continued production. Understanding the new testing and certification rule is critical for all manufacturers and importers of children’s products. The deadline to be in compliance with the rule comes at a time when the safety of children’s products continues to receive heightened scrutiny by the federal government.

Brief Background

The Consumer Product Safety Act2 (as amended by the Consumer Product Safety Improvement Act of 2008) requires that nearly all children’s products undergo third party testing. The law also mandates that manufacturers, importers and private labelers certify that their children’s products meet all applicable CPSC rules. Therefore, third party testing serves as the basis for a company to certify, via a “Children’s Product Certificate,” that its children’s products meet all such requirements.

In 2011, the CPSC enacted a final rule establishing protocols with respect to initial and continued testing and certification for children’s products. This rule has been called by some the “reasonable testing rule” because it establishes standards for testing and certification programs. Importantly, on February 8, 2013, this rule will become effective and apply to all children’s products manufactured after that date. By this time, children’s product manufacturers and importers must have a documented testing and certification program, and all products must be made per the terms of this program.

Third Party Testing and Certification

There are three types of third party testing discussed in the new rule: (1) initial testing; (2) material change testing; and (3) periodic testing. It is critical to have an understanding of each phase of testing and certification, and how they affect manufacturing and testing processes.

  • Initial Testing: Manufacturers of children’s products must submit “a sufficient number of samples” to an accredited CPSC third party laboratory to ensure compliance with all applicable product safety rules. The manufacturer or importer must issue a Children’s Product Certificate to their retailers and distributors (or to the government upon request) based on these third party laboratory test results.
  • Material Change Testing: If a material change is made to a children’s product (or to a component part of that product) after initial testing and certification, then the product or component part needs to be retested by a third party laboratory and a new certificate needs to be issued.
  • Periodic Testing: Finally, manufacturers must now document a “periodic testing plan” to any continuing production of a children’s product. If a children’s product initially is tested and certified, and then additional production continues, effective February 8, 2013, periodic testing is required for all the applicable children’s product safety rules, even if there are no material changes to the product. The periodic testing plan must provide the manufacturer with a “high degree of assurance” that its children’s products manufactured after the issuance of a Children’s Product Certificate comply with the CPSC rules. Typically, periodic testing must be conducted at least once per year, although the time interval may vary depending on the product and other factors such as high variability in testing results, consumer complaints, or the manufacturing process itself.

A Written Testing and Certification Plan

As of February 8, 2013, manufacturers must also develop a written plan for periodic testing of their children’s products, which must include the tests to be conducted, the intervals at which the tests will be conducted, and the number of samples to be tested. The rule also requires that companies include in their plan a protocol to address a material change in product design or manufacturing process, procedures to safeguard against the exercise of undue influence on a third party laboratory, policies regarding employee training, and a recordkeeping plan, among others.

How Can You Ensure that You are Complying with the New Rule?

Firms may need to seek experienced counsel to:

  • Assess your current product testing and certification practices and policies and how to bring them into compliance with all CPSC requirements.
  • Advise your company on the many other CPSC regulations, guidance documents and enforcement policies, including those dealing with the lead paint and substrate limits; limits on phthalates in certain children’s products; whistleblower protection for employees of product makers and sellers; new restrictions on the exportation of potentially violative products; a new CPSC public database of consumer complaints; and the transformation of voluntary into mandatory standards by the CPSC.
  • Advocate for your company or industry group before the CPSC to ensure that your interests and rights under the law are fully protected.

Mintz Levin has assembled a team that is devoted to CPSC-administered laws and regulations. We stand ready to advise and assist clients to anticipate and respond to compliance issues arising under federal, state, and international product safety laws. Practice leader Chuck Samuels has represented clients in the product safety arena for almost 30 years. We are presently advising trade associations, manufacturers, retailers, and importers on how to not only prevent problems from arising, but capitalize on new opportunities.

1 This rule entitled “Testing and Labeling Pertaining to Product Certification” is codified at 16 C.F.R. § 1107.

2 15 U.S.C. §§ 2051- 2089.

©1994-2013 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.