Originally published August 15, 2008
Keywords: safety, consumer products, US Consumer Product Safety Commission, CPSC, injury reports, safety recalls, lead paint, American Society for Testing and Materials, ASTM
President Bush has signed legislation significantly overhauling the laws governing the safety of consumer products sold in the United States. The legislation substantially increases funding and staffing for the US Consumer Product Safety Commission (CPSC), which is charged with administering and enforcing the new requirements.
The new law will make the following major changes affecting manufacturers and importers of consumer products. Except as noted, the changes are effective immediately.
Changes Affecting All Consumer Products
Effective November 12, 2008, the law requires all manufacturers to certify compliance with applicable safety standards based on a reasonable testing program. The certifications must be in the English language and identify which standards are covered by the certification. Any noncompliance with an applicable mandatory standard must be self-reported immediately to the CPSC by the manufacturer, importer, distributor or retailer who learns of the noncompliance.
CPSC must establish a public, Internet-searchable database of any reports it receives about injury, illness or death related to the use of specific consumer products. The database must be established by August 2010. After it is established, manufacturers will have a short opportunity (less than 10 business days) to comment on the accuracy of the reports before they are posted. Information reported by manufacturers will generally remain protected from disclosure in most cases that do not involve a recall, but CPSC has increased authority to order release of such information over the manufacturers' objections, and the time frames for manufacturers to raise objections have been shortened.
CPSC has been granted increased authority over the terms of safety recalls and the associated public notices. CPSC must approve each corrective action plan in writing and can revoke approval if the plan is not effective. The law makes it a violation to import, sell or distribute a recalled product after the recall has been announced.
Penalties for violations (including untimely self-reporting) were increased substantially to $100,000 per violation up to $15 million for a series of related violations. State Attorneys General have expanded authority to seek injunctions to enforce certain provisions of the law.
Changes Affecting Children's Products and ATVs
Lead in children's products will be limited to 600 parts per million, effective February 10, 2009, and phased down to 100 parts per million within three years, with some exceptions for inaccessible components. The lead paint rule is revised to 90 parts per million, effective August 14, 2009.
Certain phthalates used in toys or child care articles are banned altogether; certain others are temporarily banned if used in a mouthable toy or a child care article pending further evaluation by a Chronic Hazard Advisory Panel. Both bans are effective February 10, 2009.
CPSC must establish new safety standards for 12 categories of durable nursery products, such as cribs and strollers. After CPSC enacts implementing rules, durable nursery products will have to be accompanied by a postage-paid consumer registration form to facilitate consumer registration for recall notices.
Children's products will have to be certified as compliant with all applicable standards based on testing by an accredited third-party laboratory or other accredited facility. The effective date for this requirement varies by product, beginning with children's products containing lead, effective December 12, 2008. Children's products will have to be permanently marked with tracking information to assist in identifying recalled products, effective August 14, 2009.
The American Society for Testing and Materials (ASTM) standard for toys (ASTM 963-07) becomes a mandatory consumer product safety standard, effective February 10, 2009. The American National Standard for Four-Wheeled All Terrain Vehicles (ATVs)(ANSI/SVIA-1-2007) becomes a mandatory consumer product safety standard, effective April 11, 2009. Three-wheeled ATVs are banned unless CPSC adopts a standard specifically regulating them.
Changes Affecting Imported Products
Imported products that are denied entry to the Customs territory of the United States are to be destroyed, unless the Secretary of Treasury authorizes export in lieu of destruction.
Manufacturers of products that are imported into the United States are subject to all CPSC inspection and recordkeeping requirements imposed by US law. This provision applies to manufacturers located outside the United States.
CPSC is directed to provide staff at ports of entry and at foreign manufacturing facilities and to develop a risk assessment methodology for working with Customs to improve safety of imported products and to identify noncompliant, banned or substantially hazardous products before they are allowed entry to the United States.
The new legislation is comprehensive and detailed and creates a host of new potential regulatory and litigation-related issues for manufacturers and importers of consumer products. This Client Alert can cover only the highlights, and should not be relied upon as a substitute for consulting the text of the new legislation.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.
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