Demonstrating what the CPSC calls “due care” with regard to the periodic testing rule

As an importer who relies on my overseas manufacturer to test the product before shipping to the US, how would I demonstrate what the CPSC calls “due care” with regard to the periodic testing rule?


There are several approaches that may serve as evidence of due care by an importer to ensure that a foreign manufacturer who has provided a testing certification for product, conducts periodic testing as specified in the final rule.

First, the requirement should be specified in the importer’s purchase order to the foreign manufacturer, clearly communicating the requirement to conduct the required periodic testing and requiring submission of the foreign manufacturer’s periodic testing plan, production testing plan, or the results of continued testing using an ISO/IEC 17025:2005 -accredited lab.

Second, an importer may need to conduct occasional site visits to his supplier’s manufacturing facility to examine evidence that the required periodic testing has been properly performed.  Simply reviewing the foreign manufacturer’s periodic testing plan or production testing plan may not satisfy the requirement, without further evidence that the plans were actually implemented.  (Think Audit of Factories)

Third, an importer may need to verify the authenticity of the supplier’s test reports by contacting the testing laboratory for verification of the testing or have the test report reviewed by another party.

Fourth, an importer may also wish to occasionally submit samples from products received from the supplier for testing, to compare the test results to those conducted by the foreign manufacturer


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What is the purpose of periodic testing? (Based on 16 CFR Part 1107)

The purpose of periodic testing is to ensure the compliance of continued production of a children’s product to all the product safety rules it was first certified for.  The CPSC defines periodic testing in their FAQ as, “The general principle set forth in the regulation is that you, as the manufacturer, must have a periodic testing plan and conduct periodic testing (using a CPSC-accepted laboratory) at least once per year.”

Previously tested children’s products or component parts of children’s products do not require periodic testing.  If the children’s product or component part of a children’s product was sampled and tested for certification purposes, those test reports remain valid for the remainder of that particular lot or batch of the children’s product or component part of the children’s product.

Continued production or importation of the same children’s product or component part of a children’s product (assuming no material changes that would require re-certification) are subject to the periodic testing requirement.

If a manufacturer/importer of record conducted certification testing on each new lot or batch of a children’s product or component part of a children’s product, that testing would constitute recertification of the finished product or component part and therefore periodic testing requirements would not apply.

Based on the final rule of 16 CFR Part 1107, continuing production of a children’s product or component part of a children’s product would have to select either a representative sample or random sample technique(s) for periodic testing purposes.

Conducting Undue Influence Training

Can I use a software program or website to conduct the training needed to satisfy the “undue influence” requirement within the Testing and Labeling Pertaining to Product Certification rule or does it have to be in person?

Manufacturers are required under 16 CFR § 1107.24(b)(1) to make sure “that every appropriate staff member receive training on avoiding undue influence and sign a statement attesting to participation in such testing.”  The CPSC has stated that a digital signature or other electronic attestation (such as a check box) that an employee took the training included as part of software or online training would meet the requirement to “sign a statement attesting.”

Need help with Undue Influence training. please contact us today as Jacoby Solutions can help you meet this requirement!

16CFR Part 1107 will be in effect soon

Here is the essence of what the final rule (16 CFR Part 1107, Testing and Labeling Pertaining to Product Certification Regarding Representative Samples for Periodic Testing of Children’s Products) says.

In order to ensure continued compliance of children’s products produced, the Commission has taken the approach of requiring the manufacturer/importer of record to have knowledge of how tested product samples are similar to untested product samples.

The manufacturer/importer of record can demonstrate this knowledge by; results from prior testing (product has been tested several times with no issues of non-compliance), detailed knowledge of the product itself (in design and material sourcing), the production processes used in the manufacture of the product, the quality control processes used in the production of the product and the production testing plan for the product (testing done at the manufacture site to ensure continued compliance of the product).

So long as the manufacturer/importer of record has a rational basis for demonstrating the similarity of the untested product samples to the tested product samples and documents this rational, then the manufacturer/importer of record is said to have met the requirements in the final rule.

Numerous times the Commission has stated that manufacturers/importers of record are required to know about their products and the manufacturing processes used and implement a testing program accordingly which includes the ability to provide a basis for inferring the compliance of the tested product samples to the untested product samples.  Without this basis the testing done by the manufacturers/importers of record on their products would serve no purpose other than to demonstrate the compliance of the tested product samples and not the entire population of product samples.

Manufacturers/importers of record can use “process” to show that the product samples selected for testing are like the untested product samples.  For example, a process that manages the lots or batches of raw materials used in the manufacture of children’s products (like surface coatings or resins) can be used as a basis to demonstrate the homogeneity of the population of products with regard to chemical testing for lead and phthalates.

Another example would be a process that creates uniformly spaced holes in the crib rails for the uniformly constructed crib slats which can be used as a basis to demonstrate the homogeneity of the population of products with regard to the component spacing test of ASTM f1169-10.

Without this documented basis, mere testing alone is not sufficient to infer compliance of the untested product samples and as such would not meet the minimum due care requirements of 16 CFR Part 1107.


Standing Guard for Consumers: CPSC & CBP Working at U.S. Ports to Protect Families This Holiday Toy Shopping Season

CPSC Media Contact: (301) 504-7908


U.S. Consumer Product Safety Commission

Standing Guard for Consumers: CPSC & CBP Working at U.S. Ports to Protect Families This Holiday Toy Shopping Season

PORT ELIZABETH, N.J. – Today, U.S. Consumer Product Safety Commission (CPSC) Chairman Inez Tenenbaum and U.S. Customs and Border Protection (CBP) Deputy Commissioner David Aguilar announced at Port Elizabeth, N.J. that more than 2 million units of dangerous or violative toys and children’s products were seized in 2012 and were prevented from reaching the hands of children. CPSC investigators and CBP inspectors are working arm-in-arm at ports across the United States to keep families safe during this holiday toy shopping season.

Over the past four years, CPSC and CBP have stopped more than 8.5 million units of about 2,400 different toys and children’s products due to safety hazards or the failure to meet federal safety standards. By seizing dangerous toys and children’s products at the ports, those products remain off store shelves and out of consumer’s homes.

Chairman Tenenbaum and Commissioner Aguilar urged parents to remain vigilant when making toy purchases and always keep safety at the top of their toy shopping list.

“Proactive port surveillance, strong toy standards, and educational efforts create a safer holiday toy shopping experience for consumers by keeping dangerous products off store shelves,” said Chairman Tenenbaum. “Ultimately our goal is to protect our most vulnerable population – kids – and keep them safe this holiday season.”

“Together with CPSC, we have intercepted record amounts of unsafe products,” said Deputy Commissioner Aguilar. “We are here to raise consumers’ awareness about the very real danger of unsafe products and urge consumers to be vigilant when buying toys and children’s products this holiday season.”

In fiscal year 2012, CPSC recalled 38 toys, three of which involved a lead violation. Toy recalls continued to decline since 2008. There were 172 recalls in fiscal year 2008, 50 recalls in fiscal year 2009, 46 toy recalls in fiscal year 2010, and 34 recalls in 2011. Most toy recalls in 2012 were due to small parts, choking hazards or sharp points.

Toy-related death reports to CPSC involving children younger than 15-years-old decreased to 13 in 2011 from 19 fatalities in 2010 and 17 reported in 2009. The majority of these toy-related fatalities were attributed to asphyxiation, choking or drowning. These included children choking on balloons, drowning after trying to retrieve a toy from a swimming pool, or being found with tricycles in swimming pools.

new report (PDF) released by CPSC today estimated 193,200 toy-related, emergency department-treated injuries to children younger than 15 years of age occurred in 2011. Many of the incidents were associated with, but not necessarily caused by, a toy. For children younger than 15-years-old, non-motorized scooters continued to be the category of toys associated with the most injuries. Frequently, these injuries involved lacerations, contusions, and abrasions to the child’s face and head.

Here are some safety tips that consumers should keep in mind this holiday season:

  • Balloons – Children can choke or suffocate on deflated or broken balloons. Keep deflated balloons away from children younger than 8-years-old. Discard broken balloons immediately.
  • Small balls and other toys with small parts – For children younger than age 3, avoid toys with small parts, which can cause choking.
  • Scooters and other riding toys – Riding toys, skateboards, and in-line skates go fast, and falls could be deadly. Helmets and safety gear should be worn properly at all times, and they should be sized to fit.
  • Magnets – High powered magnet sets are dangerous and should be kept away from children under 14. Building & play sets with small magnets should also be kept away from small children.


Once gifts are open:

  • Immediately discard plastic wrapping or other toy packaging before they become dangerous play things.
  • Keep toys appropriate for older children away from younger siblings.
  • Battery charging should be supervised by adults. Chargers and adapters can pose thermal burn hazards to young children. Pay attention to instructions and warnings on battery chargers. Some chargers lack any mechanism to prevent overcharging.


Along with educating the public, CPSC is committed to working with foreign and domestic toy manufacturers, importers and retailers to help them understand and comply with U.S. toy requirements.

In addition this year, CPSC joined international safety agencies in Canada and Mexico to promote toy safety education and awareness. CPSC along with Health Canada and Mexico’s Procuraduria Federal del Consumidor (PROFECO) have released toy safety tips for choosing, purchasing and supervising the use of children’s toys. This cooperative effort with CPSC’s North American partners helps to ensure a safer marketplace.

The U.S. Consumer Product Safety Commission (CPSC) is charged with protecting the public from unreasonable risks of injury or death associated with the use of the thousands of consumer products under the agency’s jurisdiction. Deaths, injuries, and property damage from consumer product incidents cost the nation more than $900 billion annually. CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard. CPSC’s work to ensure the safety of consumer products – such as toys, cribs, power tools, cigarette lighters and household chemicals – contributed to a decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

To report a dangerous product or a product-related injury, go online to:, call CPSC’s Hotline at (800) 638-2772 or teletypewriter at (301) 595-7054 for the hearing and speech impaired. Consumers can obtain this news release and product safety information at To join a free e-mail subscription list, please go