Since the 2008 passage of the Consumer Product Safety Improvement Act,importers and domestic manufacturers of children’s products (a consumer product designed or intended primarily for children 12 or under) have been required to issue a certificate of compliance (known as a “General Conformity Certificate” or “GCC”) stating that the product is compliant with all U.S. Consumer Product Safety Commission (“CPSC”) mandated product safety rules. Now, however, children’s products importers and domestic manufacturers will be required to do more. Last year the CPSC issued regulations that require importers and domestic manufacturers to also develop and implement by February 8, 2013 their own Product Testing and Certification Program.

This new Product Testing and Certification Program, previously called a “Reasonable Testing Program,” must include specified elements, the implementation of which will, according to the CPSC’s regulations, provide the issuer of a new type of GCC (a “Children’s Product Certificate”) a “high degree of assurance” that all of its children’s products, not just the products that were tested, are compliant with applicable CPSC product safety rules.

The good news is that developing and implementing the new Product Testing and Certification Program will increase the likelihood that a company’s children’s products are in compliance with applicable CPSC product safety rules. Thus, it will help to protect the company’s brands from adverse publicity and avoid commercial disruption from goods being detained at a port or recalled by the CPSC.

A Company’s CPSC-Compliant Product Testing and Certification Program Must Include and/or Address:

• Initial product certification which is to be based upon third-party lab testing of “sufficient samples” of the children’s products to provide the company a “high degree of assurance” that all of its children’s products meet applicable product safety rules.
• A Periodic Testing Plan, which addresses the tests to be conducted, the intervals between tests, the number of samples to be tested and the methods that ensure that the tested samples are “representative” of the entire production population, so that the company can continue to have a “high degree of assurance” that its products remain compliant with all applicable product safety rules.
• Material change in the product design or manufacturing process, including the sourcing of component parts, which could affect the children’s products’ ability to comply with applicable product safety rules.
• Procedures to safeguard against a company using undue influence over third-party labs.
• Records of all Children’s Product Certificates, third-party test results, Periodic Testing Plans, and material change and undue influence policy documents must be maintained for five years and made available to the CPSC on request.

A CPSC-Compliant Product Testing and Certification Program May Include and/or Address:

• Component part certification and/or testing which a company may rely upon if it has exercised “due care” to ensure that reliance on that component part certificate and/or test was justified.
• A Production Testing Plan which describes the production management techniques and tests that will be performed to provide the company a “high degree of assurance” that its children’s products continue to comply with applicable product safety rules after issuance of an Initial Product Certification. Although not required, a Production Testing Plan can extend the company’s mandatory third party testing from a minimum of once a year to once every two years.

©2012 Greenberg Traurig, LLP

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