Contributing Lawyers


Cyndee Todgham Cherniak

United States

Susan Kohn Ross


Andrew Hudson

Consumer Product Safety Improvement Act - Update

The Consumer Product Safety Improvement Act (CPSIA) was signed into law on August 14, 2008 and took effect on November 12, 2008. There remains much confusion about the impact of the CPSIA and so, in this article, we will attempt to clear up some of those questions and provide the most current updates.

First, the Act itself refers to children's products and lowers the acceptable level of lead (phthalates are dealt with below) over a three year period. If a product will not result in absorption of any lead into the human body or have any other adverse impact on public health, it may be excluded. There is a further exclusion for what are described as inaccessible component parts. So long as a child would not be able to access the component by either normal or reasonably foreseeable use and abuse, and the component does not become physically exposed through reasonably foreseeable use and abuse of the product, it may be excluded. Reasonably foreseeable use and abuse is defined to include swallowing, mouthing, breaking or other children's activities, and the aging of the product. However, painting, coating or electroplating do not qualify to make a component inaccessible. The Commission has one year to provide guidance as to what may be excluded but the staff has just made its recommendations to the Commission, see below for more details. 

The Act goes on to require mandatory third party testing of certain children's products. This mandatory testing extends to "every manufacturer of a product which is subject to a consumer product safety rule of this Act or similar rule, ban, standard or regulation under any other Act enforced by the [CPSC], and which is imported for consumption or warehousing or distributed in commerce (and the private labeler of such product if such product bears a private label)" who is required to certify compliance with all such rules, bans, standards or other regulations and specifies each such rule, ban, standard or regulation, and such certification is to be based on a "test of each product or upon a reasonable testing program…"

The third party testing accreditation will be rolled out by product category. A list of accredited entities is to be maintained by the Commission and will also be subject to periodic audit.

Within one year, manufacturers are required to place permanent, distinguishing marks on their products and packaging which allow tracking back to the date and location of manufacture, down to the batch number or other lowest level identifier so as to be able to identify the "specific source" of the product and also allows the ultimate purchaser to identify the manufacturer or private labeler, location and date of production, again by lot or other lowest level identifier.

There are also specific requirements for durable nursery products and label requirements for advertizing of games and toys. Further, there will now be a mandatory toy safety standard set by reference to ASTM F963 which takes effect in a year. Until then, the existing lead paint rule (16 CFR 1303.1) continues to be the standard. There may also be rulemaking for specific toys and components.

As noted, there is a requirement for a certificate. When enacted, the CPSIA required each product in each shipment to be accompanied by a paper certificate from all the parties to the transaction. To its credit, the CPSC took the information given to it by the trade community and quickly realized that was an unworkable situation.  As a result, the Commission clarified the requirements making clear that absent another product safety standard required something different, only importers were required to issue conformity certificates. For domestic products, the domestic manufacturer is required to issue the certificate. Private labelers were exempted. In all cases, the certificates must be passed along to distributors and retailers.

CPSC also agreed the certificates could be issued and distributed electronically. Electronic issuance and distribution could be accomplished by posting the certificates on a website. They can also be transmitted electronically to Customs, all with the caveat the original would be produced immediately for inspection if required. Finally, again to its credit, the Commission advised that at least at first, it would focus more on compliance with the safety standards than with whether or not the certificate was complete or filed. While that is the CPSC's initial intention, the CPSIA also calls for penalties to be imposed and the Commission has until August 14, 2009 to figure out its protocol for imposing and mitigating those penalties, and its other enforcement efforts under this Act.

The requirements for the contents of the Certificate of Conformity can be found on the CPSC website at


Regarding phthalates, the CPSIA states that on February 10, 2009, the new phthalates standard takes effect. Strictly in the context of phthalates, children's toys are defined as being designed for a child 12 years or younger when he or she plays. Child care articles, however, are defined as those designed or intended for use by children age 3 or younger, or to help with sucking or teething.

Specifically, DEHP, DBP and BBP are permanently prohibited, while DINP, DIDP and DnOP are prohibited pending further study. It is also important to keep in mind that whereas the CPSIA provisions regarding lead allow an exclusion for inaccessible parts, there is no similar exclusion regarding phthalates.

So, the first point we want to clear up is that all products subject to the CPSIA and/or the Consumer Product Safety Act (CPSA) must be accompanied by a Certificate of Conformity. While any such Certificate must be supported by test results, it is only those products covered by the CPSIA which are subject to mandatory third party testing.

Second, the products subject to the certification requirement are only those subject to the Consumer Product Safety Act or the CPSIA.

The CPSIA makes clear that its provisions preempt state law. At the same time, the Act allows State Attorneys General to enforce these same provisions. As a result, importers are cautioned to beware of the possibility of being prosecuted under their own state laws for violations of the CPSC laws and regulations, as well as under comparable state laws and regulations.

As to inaccessible parts, the CPSC staff has just issued a memo to the Commission. It recommends accessibility be tested by deciding whether or not the child might touch the lead-containing part. The memo goes on to recommend the Commission rely on the testing methods currently in place for sharp points and sharp metal or glass edges on toys in determining accessibility.

That same memo also dealt with a section of the CPSIA having to do with electronic products and here, too, the CPSC staff has made its recommendation. Here, the staff acknowledged that in many cases, it may not be technologically feasible to comply with the lead limits for a variety of legitimate reasons, such as international standards, some components are removable (such as battery packs) leaving the lead-containing parts accessible (but should be considered inaccessible if that be the case when the product is fully assembled). However, in all other cases, the requirements apply.


The lead content provision of the CPSIA also recognizes there are some products and materials which should be excluded if it is clear that product or material will not result in any absorption of lead into the body or otherwise have an adverse impact on health or safety. In a separate memo, CPSC staff has recommended such applications be supported by reliable test results or other scientific evidence "based on objectively reasonable and representative testing." Also to be provided is data on the "lead content of parts of the product or material used in the production of the product, data or information on manufacturing processes through which lead may be introduced into the product or material; any other information relevant to the potential for lead content of the product or material to exceed the CPSIA lead limits; and detailed information on the relied upon test methods for measuring lead content of products or materials or assessing manufacturing processes."

The inaccessible parts, electronic products and lead exemption provisions have been submitted to the Commission for approval by January 5th. Once approved, the next step is publication in the Federal Register.

The CPSC staff also put forth a memo recommending what should be considered naturally occurring materials and certain metals and their alloys which inherently do not exceed the lead content. It is this memo which has led to press coverage about how the handicraft industry has been saved. In it, the staff provides a list of items but also recommends its findings only apply to material that is "untreated and unadulterated by the addition of materials or chemicals including pigments, dyes, coatings, finishes or any other substance, and has not undergone any processing that could result in lead content that exceeds the CPSIA lead limits. The list consists of precious gemstones; certain semiprecious gemstones; natural or culture pearls, wood, natural fibers (e.g., cotton, silk, etc.) and other natural materials (coral, amber, feathers, fur and untreated leather); surgical steel; precious metals; but excludes materials such as solder or base metals in electroplate, clad or fill applications. This memo, too, has been submitted to the Commission, again with the proposed approval date of January 5th.


We want to again point out that not all consumer products are subject to CPSIA, only those subject to regulation under either the Consumer Product Safety Act or the CPSIA. This is not to say that some products may still not be subject to other CPSC reporting requirements (such as dangerous products (Section 15) or lawsuit (Section 37), or choking incidents (Child Product Safety Act Section 102).

Finally, we want to reiterate that all products subject to the CPSA and the CPSIA must have Certificates of Conformity. These Certificates are often referred to as general conformity certifications and must be supported by a test of each product or a "reasonable" testing program. Third party certification is only required for children's products as defined in the CPSIA. CPSC must first accredit the labs and then testing is required for products manufactured 90 days after the CPSC designates the process by which it will accredit the labs. The roll out order is lead paint; cribs and pacifiers; small parts; metal jewelry; baby bouncers, walkers and jumpers; 300 ppm lead content and CPSC Children's Product Safety Rules. This roll out is scheduled to occur between December 2008 and September 2009.

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