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CPSC delays some Safety Act provisions

By Staff -- Gifts and Dec, 2/2/2009 11:04:00 AM

WASHINGTON—The Consumer Product Safety Commission’s vote late last week to postpone for one year the enforcement of the Consumer Product Safety Improvement Act’s testing and certification requirements is drawing mixed response from industry.

The CPSC’s move, which does not postpone the Feb. 10, 2009, effective date for the implementation of stricter lead content requirements in toys and other children’s products, fell short of what the Toy Industry Association and dozens of other industry groups sought in a letter sent to the CPSC on January 28.

In a statement posted to its website on January 31 with the headline “CPSC Stay of Enforcement Fails to Provide Necessary Relief to Toy Industry,” [for full text see sidebar below] TIA said it would “continue to vigorously lobby Congress to postpone the effective dates for the CPSIA until the House and Senate can consider badly needed technical amendments.”

The association added that it continues to encourage its members to send a letter to members of Congress “asking that [Congress] postpone the February 10 CPSIA effective date and modify the Act itself so unintended consequences that harm the economy can be corrected.”

The CPSC described the postponement as “limited relief” from the testing and certification requirements that were mandated as part of the Feb. 10 date for the implementation of CPSIA’s new total lead content limits (600 ppm) and phthalates limits for certain products (1000 ppm).

“The stay of enforcement provides some temporary, limited relief to the crafters, children’s garment manufacturers and toy makers who had been subject to the testing and certification required under the CPSIA. These businesses will not need to issue certificates based on testing of their products until additional decisions are issued by the Commission,” the CPSC said in its statement announcing the postponement. “However, all businesses, including, but not limited to, handmade toy and apparel makers, crafters and home-based small businesses, must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalates provisions of the CPSIA."

According to Dan Marshall, founder of the Handmade Toy Alliance, a group of nearly 300 small toy stores, toymakers and other children’s product manufacturers that sprang into existence as a result of the CPSIA’s potential impact on their businesses, "the stay sends a message to Congress that work is still needed on technical amendments to the CPSIA to fix the law. I think this is good news. Not because it solves our problems, but because it gives us some breathing room to get our problems solved. Our work is far from done."

In addition to outside pressure, the CPSC’s decision was in part predicated on its own difficulties meeting the CPSIA’s mandates. It admits that its staff “has been unable to respond to many [CPSIA-related] inquiries due to the press of its unusual regulatory and compliance activities and the additional burden of the very early, multiple statutory deadlines imposed on the agency by the CPSIA, including those necessitating issuance of 14 proposed and final rules in the six months since CPSIA was signed into law.” Not helping matters, CPSC said, were funding constraints that have posed “a severe handicap” on its ability to address CPSIA’s requirements.

The stay will remain in effect until February 10, 2010, at which time a commission vote will be taken to terminate the stay, according to CPSC.

press release:

CPSC Stay of Enforcement Fails to Provide Necessary Relief to Toy Industry

February 2, 2009 - The U.S. Consumer Product Safety Commission (CPSC) voted Friday to postpone for one year the enforcement of testing and certification requirements under Section 102 (a) of the Consumer Product Safety Improvement Act (CPSIA). TIA expressed its disappointment with the action, stating that the decision fails to offer needed relief for the manufacturers of children’s products.

In a January 31 message to members and industry contacts, TIA explained that the CPSC’s Emergency Stay delays only the testing and certification requirements scheduled to take effect on February 10, 2009; it does not modify the February 10, 2009 deadline to comply with the CPSIA’s new requirements for lead, phthalates and other mandatory safety standards. Standing requirements for third party verification and certification for existing lead paint and small parts regulations already in effect are also unchanged by the CPSC Stay.

“The testing and certification requirements are deferred for one year, but compliance with the new CPSIA standards begins in just over a week . . . and the only way to demonstrate this compliance is through testing,” explained Carter Keithley, TIA president. Products already in inventory that do not meet the new CPSIA requirements – even if they met the standards that were in place when the legislation was passed – will be in violation of the law.

“We do think there are very few toys with high lead levels left on the market, but it is a roll of the dice for any retailer or manufacturer to leave untested product on the shelf in the face of the dramatically higher penalties adopted by the Act,” Keithley stated. “This Stay offers no real relief from testing.”

Congress has left authority to resolve problems with the legislation to CPSC, but the Commission has stated that it cannot alter the statutory requirement for compliance with the new standards. According to CPSC, Congressional action is required for this change.

The toy industry is now faced with a stand-off between Congress and CPSC … and a confusing situation in which meeting the requirements of the CPSIA must be balanced with a lack of proper guidance. Retailers also need further assurances from CPSC that they will not enforce until regulations are clearly enacted.

Despite its best efforts, the CPSC faced unrealistic and arbitrary deadlines and has been unable to provide the information and guidance needed to comply with the new requirements. Friday’s decision acknowledges that the original timetable could not reasonably be met. The Commission must now move quickly to provide clarification in a comprehensive regulation so that businesses have clear direction of requirements prior to the manufacture of products, but such clarification will not likely come in time for the February 10 effective date.

On January 28, 2009, 67 industry groups – including TIA and the National Association of Manufacturers – requested a delay of at least six months on all requirements that were to become effective on February 10. The petition referenced pending CPSC decisions regarding the definition of accessible components and the exclusion of certain products or materials.

TIA and its members are now turning their attention to Congress with a plea for legislation that will institute an emergency delay of the February 10 effective date. The requested action is two-fold: first, Congress should immediately delay implementation of the lead, phthalates and other standards requirements until the CPSC can issue final comprehensive rules and interpretative regulations that will allow for a reasonable implementation. Next, the House and Senate should review and modify the Act itself so that unintended consequences that harm the economy can be corrected.

“The toy industry supports expeditious implementation of the CPSIA, but as it now stands, enforcement of the February 10 requirements will create extreme hardships for manufacturers and retailers of toys and all other products intended for use by children,” said Keithley. “Because CPSC has yet to issue regulatory guidance on testing and certification for compliance, billions of dollars of products will remain ‘in limbo’ and unsaleable until such regulatory guidance is provided and they can be tested. Businesses may be forced to close, jobs lost, and an untold number of safe products will be destroyed . . . all at the crux of worsening economic times.”

"The stay of enforcement of the testing and certification provisions will give some temporary and limited relief to small manufacturers, home-based businesses and crafters who cannot comply with the law without incurring substantial testing costs,” said CPSC Chairwoman Nancy Nord in a written statement. “However, the stay does not relieve them of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009 …”

According to Nord, retailers, thrift shops, charities, and other sellers do not now have a legal requirement to test their inventory, but they are still required to meet all standards enacted by Congress.

“These businesses will have to decide whether they will continue to sell products that have not been tested, even though no one has suggested that they are unsafe,” said Nord.

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