The Consumer Product Safety Commission (CPSC) voted last week to stay the enforcement of testing and certification requirements under Section 102 (a) of the CPSIA, including children's products. While in theory this helps businesses comply with the new law, in reality it grants little relief, confuses the issue, and may wrongly suggest to some that additional relief is no longer necessary.
The National Association of Manufacturers prepared this analysis of the stay.
IAAPA is a member of the NAM CPSC Coalition and last week signed on to a letter from the Coalition to the CPSC, urging a one-year stay of the Feb. 10, 2009, effective date of the lead content requirements of Section 101 (a)(2) of the CPSIA. The CPSC did not grant a stay of the effective date for the lead content provisions. This means any children's product not meeting the 600ppm lead content standard is a banned hazardous product as of next week and cannot be sold. If you remember from November, CPSC General Counsel ruled the lead provisions apply to all merchandise, regardless of date of manufacture.
Put simply: You cannot sell a product with more than 600ppm lead content on or after Feb. 10, 2009.
So what if you have an item at your redemption counter or on the shelf in your souvenir shop and you don't know its lead content? Well, you're still going to have to either test it or ask the manufacturer to certify it meets the 600 ppm standard, even though technically enforcement of the testing and certification provisions doesn't start for another year.
Even Chairwoman Nancy Nord agrees this is a less-than-perfect fix:"The stay of enforcement does not provide relief for the charities, thrift shops, resellers and small retailers who are impacted especially hard by the retroactive effect of the lead ban to existing inventory. While these groups do not have a legal requirement to test their inventory, they must meet all standards enacted by Congress. Thrift shops, charities and other sellers will have to decide whether they will continue to sell children's clothing and other products that have not been tested, even though no one has suggested that they are unsafe."
Another issue that arises from this stay is it has no legal effect on the ability of state attorneys general to enforce the testing and certification provision. The CPSIA gave a lot of enforcement power to the state AGs. Now, an AG in one state may choose to respect the CPSC's stay while in a neighboring state, the AG will enforce the Feb. 10 effective date. For companies that operate in multiple states, this creates a real headache.
The bottom line is this: technically, you do not have to go through testing and certification until next year if you are 100 percent positive your merchandise meets the new lead standards but if you are wrong, this stay does not absolve you of responsibility.
At this point, a legislative solution is the only way to provide actual relief to businesses struggling to comply with the new law. This will be difficult as no elected official is particularly willing to stick his or her head up and risk being painted as "against safety."
For more information and updates as the issue continues to develop, visit our Toy Safety page.