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May 26, 2010

CPSC Proposes Requirements for Testing Component Parts in Consumer Products

Bergeson & Campbell, P.C.

On May 20, 2010, the U.S. Consumer Product Safety Commission (CPSC) issued a proposed rule regarding the conditions and requirements for testing component parts of consumer products to demonstrate compliance of a consumer product with all applicable rules, bans, standards, and regulations to support a general conformity certificate or a certificate for a children’s product pursuant to Section 14(a) of the Consumer Product Safety Act (CPSA); as part of a reasonable testing program pursuant to CPSA Section 14(a); as part of the standards and protocols for continued testing of children’s products pursuant to CPSA Section 14(d)(2); and/or to meet the requirements of any other rule, ban, standard, guidance, policy, or protocol regarding consumer product testing that does not already directly address component part testing. Comments are due August 3, 2010. CPSC notes that the Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of a final rule. CPSC states that it intends that any final rule based on this proposal would become effective 180 days after the date of publication of a final rule in the Federal Register. According to CPSC, “[t]his should allow time for any product changes needed for testing of component parts and for implementation of the component part testing requirements.”

The proposed rule would establish the conditions under which a party certifying a product under CPSA Section 14 may rely on tests of component parts of the product, including materials used to produce it, as all or part of the basis for a valid certificate that the product complies with all applicable requirements enforced by CPSC. The proposed rule also would set out the conditions under which such tests of component parts can be conducted by persons other than the manufacturer, such as the manufacturer or supplier of the component parts.

CPSC invites comment on whether finished product certifiers should be permitted to rely on other types of certifications from other persons (in addition to component part certifications). CPSC states that the proposed rule only would allow a finished product certifier to rely on certificates relating to the performance of individual component parts; it would not authorize a finished product certifier to rely on a certificate from another party certifying that the finished product itself complies with an applicable rule. For example, it would not allow certification by others in the case of standards, such as the small parts ban at 16 C.F.R. Section 1500.19, which require testing of the entire product as opposed to an individual component. CPSC asks whether this limitation should be modified so that the importer of a product would be able to base its own certification on what might be termed a “subordinate” certificate from a foreign manufacturer or other interested party to the effect that the product complies with one or more of these standards, and what are the risks and benefits of allowing such an arrangement.

The proposed rule would establish a new 16 C.F.R. Part 1109, setting forth the conditions under which CPSC would allow certification of consumer products based in whole or in part on testing of component parts or composite parts. The new Part 1109 would consist of two subparts: Subpart A — General Conditions and Requirements; and Subpart B — Conditions and Requirements for Specific Consumer Products, Component Parts, and Chemicals. Proposed Subpart B would consist of four provisions, Sections 1109.11 through 1109.14. The first three provisions would discuss specific requirements for consumer products (namely chemicals in paint and similar surface coatings, lead content, and phthalates in products). The fourth provision would concern composite testing.

The Consumer Product Safety Improvement Act (CPSIA) reduced the general limit for lead in any accessible part of a children’s product from 600 parts per million (ppm) to 300 ppm, effective August 14, 2009. On that date, it became unlawful to sell, offer for sale, manufacture for sale, distribute in commerce, or import into the U.S. any product that is subject to the new lead limits, but fails to comply, regardless of when the product was made. Under CPSIA Section 101(a)(1), any children’s product containing an accessible part with lead above the limit is to be treated as a banned hazardous substance under the Federal Hazardous Substances Act. CPSIA Section 101 provides that the lead content limit for children’s products will be lowered to 100 ppm beginning August 14, 2011, unless CPSC finds that a limit of 100 ppm is not technologically feasible for a product or product category.

CPSIA Section 108 permanently prohibits the sale of any children’s toy or child care article containing concentrations of more than 0.1 percent of three specified phthalates (di-(2-ethylhexyl) phthalate, dibutyl phthalate, or benzyl butyl phthalate). CPSIA Section 108 also prohibits, on an interim basis, the sale of any children’s toy that can be placed in a child’s mouth or child care article containing concentrations of more than 0.1 percent of three additional phthalates (diisononyl phthalate, diisodecyl phthalate, or di-n-octyl phthalate), pending the recommendation of a Chronic Hazard Advisory Panel. These prohibitions became effective on February 10, 2009. On December 28, 2009, CPSC stayed the requirement for testing and certification for the phthalate content requirements until 90 days after it publishes a notice of requirements for accrediting conformity assessment bodies to test to the phthalate content requirements.

On May 20, 2010, CPSC also published a proposed rule that would establish requirements for a reasonable testing program and for compliance and continuing testing for children’s products. The proposed rule would also address labeling of consumer products to show that the product complies with certification requirements under a reasonable testing program for nonchildren’s products or under compliance and continuing testing for children’s products. The proposed rule would implement CPSA Section 14(a) and (d), as amended by CPSIA Section 102(b). The proposed rule would create a new 16 C.F.R. Part 1107, entitled “Testing and Labeling Pertaining to Product Certification.” The new Part 1107 would consist of four subparts: Subpart A would be “General Provisions”; Subpart B would be the requirements for a “Reasonable Testing Program for Nonchildren’s Products”; Subpart C would be the requirements for “Certification of Children’s Products”; and Subpart D would be the requirements for a “Consumer Product Labeling Program.” Comments are due August 3, 2010.