CPSC Voluntary Remedial Actions and Guidelines Final Rule

CPSC Voluntary Recall The Consumer Product Safety Commission (CPSC) has proposed amendments to its Voluntary Remedial Actions and Guidelines that would make corrective action plans for product recalls legally binding, which is a departure from over forty years of working with manufacturers on recalls and could impact liability risks for companies.

Previously if a manufacturer, distributor or retailer reported to the CPSC a consumer product that had violated a standard or created a substantial risk of injury or death to the public, they were allowed to negotiate and create a voluntary “corrective action plan” (CAP) that would “fast track” recall remediation measures and notify consumers.

Unlike mandatory CAP’s, voluntary CAP’s are not legally binding which allows companies to diverge from the CAP and in some cases not accomplish the CPSC’s desired results of the recall. In September of this year, the CPSC proposed a rulemaking to the standardized recall agreements based on studies which showed that product recalls seldom were totally successful.

In November of this year the Commission approved by a margin of 3 – 1, the proposed rulemaking to standardized recall provisions and make voluntary recall agreements legally binding. This means that the CPSC will have greater input into what will be required in the voluntary CAP’s which in some cases could include the creation of mandatory compliance systems within the company that would address issues arising out of the product recall.

For example, the CPSC could impose enhancements to the company’s existing compliance policies by ensuring that its ongoing program contains written standards and policies, a mechanism for confidential employee reporting of compliance related questions or concerns, and appropriate communication of company compliance policies to all employees through training programs.

The new rule would give the requirements within the voluntary CAP teeth by allowing the court system to get involved when violations occur. While Commissioner Robert Adler, who proposed the new rule, admitted that the violation of corrective action plans has not been a “big problem,” he explained that even if one corrective action plan is violated, “that [violation] may leave hundreds and hundreds and hundreds of thousands of consumers at risk of a defective product.”

Time for Small Batch Manufacturers to Reapply for Exemption for 2014

Small Batch Registration Deadline

 

NOTE that if you are a registered small batch manufacturer with the U.S. Consumer Product Safety Commission (CPSC) for calendar year 2013 and you wish to continue in this status, you must register again for calendar year 2014.  Registration must be submitted annually.  On or about December 1st, 2013, the CPSC will release instructions on how to renew your registration.

 

If you qualify and if you are a manufacturer of children’s products and produce in small batches, it is critical that you register for a small batch exemption if your sales are less than 1 million dollars from the previous calendar year or you have manufactured less than 7,500 qualifying (children’s products) units. See the CPSC website for details relating to your product.

If you are a new company  and new to this subject matter, you may have this question. Are small batch manufacturers currently required to third party test their children’s products in order to certify compliance to applicable regulations?

 It depends on the children’s product and the materials used to manufacture that children’s product.

Small batch manufacturers must always third party test for the following children’s product safety rules (Group A):

Qualifying small batch manufacturers are NOT required to third party test for compliance with certain other children’s product safety rules. Note, however, that all manufacturers, even those that are small batch manufacturers, must ensure that their children’s products are in compliance with the underlying children’s product safety rules in Group B and issue a general certificate of conformity (GCC)

Qualifying small batch manufacturers registered with the Commission are NOT required to third party test for the following children’s product safety rules (Group B):

With respect to Group B, qualifying small batch manufacturers will need to ensure that the products comply with those regulations and issue a general certificate of conformity (GCC).

As a qualifying small batch manufacturer, you will need to register with the CPSC on an annual basis.  You can visit the CPSC page for more information. Ignorance of the law is no excuse so please register today.

New California Proposition 65 Settlements

A number of California Proposition 65 settlements have been reached involving a wide variety of products including vinyl flooring, air compressors, cosmetic bags, bandages, eyewear, kitchen and door mats, bathroom accessories, and small novelty items. These settlements establish requirements for these products that the defendants have agreed to meet.

These requirements apply to accessible materials of the following adult and children items.Proposition 65 Settlements

PHTHALATES

Bandages

Dashboard Accessories

Bathroom Accessories

Temporary Tattoos

Place Mats and Shower Curtains

Watches and Clocks

Bathroom, Kitchen, and Door Mats

Stationary

Plastic Figures, Charms and Small Novelty Items

Requirement:

  • No more than 1000 ppm DEHP, BBP and DBP each
  • Warning labels cannot be used as an alternative to meeting the 1000 ppm limit

Eyewear

Requirement:

  • No more than 1000 ppm total DEHP
  • Warning labels cannot be used as an alternative to meeting the 1000 ppm limit

Vinyl Flooring

Requirement:

  • No more than 1000 ppm DEHP, BBP, DBP, DIDP and DnHP each
  • Or provide specified warning label

LEAD

Holiday Lights

Cosmetics Bags

Luggage Tags

Requirement:

  • No more than 50 ppm total lead
  • No more than 1.0 μg in wipe test

Note: Both requirements must be met

  • Warning labels cannot be used as an alternative to meeting both requirements

Air Compressors

Requirement:

  • No more than 100 ppm total lead
  • Warning labels cannot be used as an alternative to meeting the 100 ppm limit

Brass Pencil Sharpeners

Requirement:

  • No more than 100 ppm total lead
  • No more than 1.0 μg in wipe test

Note: Both requirements must be met

  • Or provide specified warning label

New ASTM Standard for Sling Carriers Released (ASTM F2907-13b)

The new ASTM Standard for Sling Carriers has a revised scope which further defines slingwhich infant carriers fall within the scope of F2236 (Soft Infant and Toddler Carriers) and which fall within F2907 (Sling Carriers).  The CPSIA requires all baby carriers to belong to one or the other.

The standard defines a sling carrier as “a product of fabric or sewn fabric construction, which is designed to contain a child in an upright or reclined position while being supported by the caregiver’s torso. In general, the child will be between full term birth and 35 lb (15.9 kg).”

Further definition includes; “Slings consist of a variety of unstructured designs ranging from a hammock-shaped product suspended on the caregiver’s upper torso to a long length of material wrapped around the caregiver’s body.”

Additionally the standard says, “The sling carrier is normally “worn” by the caregiver, and thus the child is supported from one or both shoulders of the caregiver. These products are worn on the front, hip or back of the caregiver, with the child either facing towards or away from the caregiver or reclined on the front only of the caregiver.”

No sling carrier produced after the approval date of new standard shall either by label or other means, indicate compliance with the specification unless it complies with all of the requirements of the new standard.

Marketer of Outdoor Accessories Agrees to Drop Made in the USA Claims

A marketer of iPhone accessories, bottle holders, lens cleaners, dog collars, leashes, and other outdoor Made In Usa Stamp Shows Product Or Produce Of Americaaccessories has agreed to settle Federal Trade Commission charges that it falsely claimed certain of its products were “Made in the USA,” or “Truly Made in the USA” even though the products contained substantial foreign content.

The proposed settlement prohibits the company from deceiving consumers about the degree to which its products are made in the United States.

Based in Logan Utah, E.K. Ekcessories, Inc. sells merchandise directly to consumers on its website, ekusa.com, and through online sellers such as Amazon and REI.

The company claimed on its website that “For 28 years E.K. Ekcessories has been producing superior quality made accessories in our 60,000 sq. ft. facility in Logan, Utah;” and “Our source of pride and satisfaction abounds from a true ‘Made in USA’ product.”  In fact, the company imports many of its products and components, according to the complaint.  The FTC also alleged that the company distributed deceptive promotional materials for its products to third-party retailers such as Amazon and REI.

The FTC alleged that E.K. Ekcessories, Inc. violated the Federal Trade Commission Act by making false and unsupported statements that its products were all or virtually all made in the United States.

Under the proposed order, the company is prohibited from claiming that any product is made in the United States unless that product is all or virtually all made in the United States.  The company also is prohibited from making any misleading claims about a product’s country of origin and from providing deceptive promotional material to third-party retailers, or otherwise providing the “means or instrumentalities” for others to make deceptive U.S.-origin claims.  The company also is required to contact all distributors who bought or received products between January 1, 2010 and May 1, 2013, and provide them with a notice and a copy of the order.

According to the Commission’s 1997 U.S. Origin Claims Enforcement Policy Statement, for a product to be advertised or labeled as “Made in the U.S.A,” the product must be “all or virtually all” made in the United States – that is, all significant parts and processing must be of U.S. origin, and the product should contain no (or negligible) foreign content.

CPSC Approves New Safety Standard for Bassinets and Cradles

At the end of September 2013, the US Consumer Product Safety Commission (CPSC) approved a newbassinets and cradles safety standard for bassinets and cradles over the objection of Commissioner Nancy Nord. On October 23, 2013, the Final Rule was published in the Federal Register and is effective six (6) months after the publication date in the Federal Register.

The new standard is based on a voluntary industry standard known as ASTM F2194-13, but places stricter requirements on the pass-fail criterion for the so-called “mattress flatness test.” In the mattress flatness test, a cylindrical weight is placed on a seam, and the angle between the weight and the mattress is measured. The voluntary standard allows the test to be performed up to three times, and the results averaged. The new standard, by contrast, does not permit averaging.

In voting against the safety standard, Commissioner Nord urged CPSC to defer to the voluntary standard’s averaging methodology. In her view, it is difficult to know if the proposed criterion is any safer than that already being used in the industry. She stated: “although no concrete evidence has been presented that demonstrates a difference in safety between the two criteria, and that alone is sufficient to convince me that the Commission should adopt ASTM’s criterion, the voluntary standard also strives to address the variability inherent in manufacturing and testing, and that is something the agency equally should strive to address appropriately.”

The new safety standard also imposes a removable bassinet bed stability requirement.
Because of the time required to redesign removable bassinet beds, manufacturers and importers have until eighteen months after the date of publication to comply with the new requirements for removable bassinet beds.

California’s Department of Toxic Substances Control (DTSC) has issued two preliminary lists of Chemical of Concern

California’s Department of Toxic Substances Control (DTSC) issued two preliminary lists on Thursday, September chemical_migration_study26thList One identifies hundreds of chemicals that DTSC could eventually deem a Chemical of Concern.  A chemical becomes a Chemical of Concern only when it is the basis for a product being listed as a Priority Product.

List Two, a subset of the first (also known as the “Initial List”), contains approximately 150 chemicals that the agency will focus on within the next six months when deciding which products to list under its Priority Products list.  Among others, the Initial List contains chemicals sometimes found in cosmetic and Over the Counter (OTC) drug products such as: formaldehyde (nail care products, hair products), cyclotetrasiloxane (moisturizers, makeup, hair products), aluminum (anti-perspirants), benzene, lead, silica/silicon dioxide (crystalline, respirable size), dibutyl phthalate (nail care products and hair sprays), parabens (makeup, moisturizers, hair products, and shaving products), diethanolamine, and mineral oils: untreated and mildly treated. On April 1, 2014, or 180 days after the Green Chemistry regulations took effect, the DTSC is required to list up to five (5) Priority Products for public comment based on the chemicals in the aforementioned Initial List.

All consumer products, except for a very specifically exempted few, could potentially be listed as a Priority Product.  This includes anything from hairspray to stereo systems.  However, Debbie Raphael, Director of DTSC, told the Los Angeles Times that the first Priority Products under consideration are: nail polish (tolulene interferes with reproduction); carpet adhesive with formaldehyde; and mercury in fluorescent light bulbs.   For any company selling into the state of California, now is the time to take action, become familiar with the listed chemicals, and pursue alternative, safer product formulations before finding your product on the Priority Product list.

New Federal Safety Standard for Bassinets and Cradles Approved by CPSC

WASHINGTON, D.C. – To prevent deaths and injuries to children, the U.S. Consumer Product Safety Commission (CPSC) has approved a new federal mandatory standard to improve the safety of bassinets and cradles.  The vote was 4 to 1. The new federal standard incorporates provisions in the voluntary standard (ASTM F2194-13), Standard Consumer Safety Specification for Bassinets and Cradles. CPSC staff recommended five modifications to F2194-13 standard. These modifications address risks not adequately covered by the voluntary standard. The modifications include:

  1. a clarification of the scope of the bassinet/cradle standard;
  2. a change to the pass/fail criterion for the mattress flatness test;                                          Bassinet
  3. an exemption from the mattress flatness requirement for bassinets that are less than 15 inches across;
  4. the addition of a removable bassinet bed stability requirement; and
  5. a change to the stability test procedure, requiring the use of a newborn CAMI dummy rather than an infant CAMI dummy.

CPSC received notice of 426 incidents involving bassinet/cradles, including 132 fatalities from November 2007 through March 2013. The new standard defines “bassinet/cradle” as a small bed designed primarily to provide sleeping accommodations for infants, supported by free standing legs, a stationary frame or stand, a wheeled base, a rocking base, or swing relative to a stationary base. In a stationary (non-rocking or swinging) position, a bassinet/cradle is intended to have a sleep surface less than or equal to 10 degrees from horizontal. A bassinet/cradle is not intended to be used beyond the age of about 5 months or when a child is able to push up on his hands and knees. Bassinet and cradle attachments for non-full-size cribs or play yards are considered to be part of the bassinet/cradle category, as are bedside sleepers that can be converted to four-sided bassinets not attached to a bed. The effective date for the mandatory bassinet/cradle standard is 6 months after the final rule is published in theFederal Register. Manufacturers are allowed an additional 12 months to comply with the provision for removable bassinet beds.

DTSC releases initial chemical list (candidate chemicals) for the Safer Consumer Products Regulation

Safer Consumer Products RegulationThe California Department of Toxic Substances Control (DTSC) has released its initial list of candidate chemicals as required under the Safer Consumer Products Regulation. All companies selling products into California will want to review this list and determine if any of their products contain these chemicals.

Under the regulation a candidate chemical is defined as one that exhibits a “hazard trait and/or an environmental or toxicological endpoint” and is either (a) found on one or more of the authoritative lists specified within the regulation or (b) listed by DTSC using the criteria specified within the regulation.

The purpose of the list is to inform stakeholders [manufacturers, importers, assemblers and retailers] about chemicals that may be named as Chemicals of Concern if they are identified as part of a product-chemical combination that is listed as a Priority Product.

All companies selling products containing an identified “chemical of concern” will want to determine which entity in their supply chain has the most information about the chemicals on the list and determine contractually which entity will be responsible for compliance with the data requests, toxicity testing and notification requirements that DTSC will impose under the regulations.

Notes from the Recent CPSC Safety Academy 2013

During the recent CPSC Safety Academy held in Seattle, WA this month, there was a presentation given by Carol Cave, the SafetyAcademy2013Assistant Executive Director (AED) of the Office of Import Surveillance and John Blachere, an International Trade Specialist in the Office of Import Surveillance for the CPSC on how the CPSC reviews shipments at ports.

With the expansion of the tariff codes, the CPSC has the ability to target shipments with either high profile product groups, which may have experienced recalls or manufacturers who may have had problem products in the past.  Based on this system, there were over 2 million shipments that were eligible for examination and out of these only 1,400 (0.070%) were detained with an average detention time of 13.4 days.

The products detained included; Toys (55%), Fireworks (14%), Clothing (9%), Holiday Light Sets (3%), Other Electrical Products (5%) and All Others (14%).  Most of these products entered the United States by Sea (86%) with the other categories being; Rail (2%), Truck (6%) and Air (6%).

Of the 1,400 shipments stopped for examination 77% (1,022) were found to have violations with 61% (622) of those requiring seizure.  These shipments were over the period from October 1, 2011 to September 5, 2013.

Of those violations that required seizure, the number one reason was for lead (34%) followed by a mechanical hazard (15%).  While all of this was interesting, most of this information has been issued throughout the year in CPSC press releases.  What was interesting was that during the QA portion of the presentation a question came up with regard to Children’s Product Certificates.  The question was, how did the CPSC observe company’s complying with the requirement of certificates “accompanying each shipment”?

Carol and John both said that certificates were either physically with the products (in the containers themselves), included with the importation documents submitted by brokers or in a unique URL printed on the invoice, PO or other importation document.

They were then asked if they stopped and seized shipments strictly for not having a certificate for which they responded no.  However,  they did say that beginning in the fiscal year 2014 they will be looking to see if the shipment does have a proper certificate.  This means that even if the shipment has passed the examination for chemical or physical hazard, the shipment can still be help up for a documentation (certificate) violation.