Recent CPSC Consent Decrees require use of “Independent Product Safety Coordinators”

Two California  toy importers  have agreed to use Independent Product Safety Coordinators to create compliance programs to settle allegations of violating CPSC requirements, the Justice Department noted in a October 6 press release. They are decreed from selling and importing toys or other children’s products until these programs have been set up.

The companies are Unik Toyz Trading and Brightstar Group, both of Los Angeles. The complaints and settlements also name company officers: Julie Tran and Kiet Tran (Unik) and Sherry Chen (Brightstar)

Both decrees mandate the creation of compliance programs requiring the following:

  •  Use of Independent “Product Safety Coordinators” (no financial or personal ties) who would help set up a comprehensive product safety compliance program and audit products to determine which require testing and certification to CPSC rule. 
  • Engage  an CPSC accredited third party lab for product testing 
  • Periodic product testing plan according to 16 CFR 1107.
  • Conformity certificates retained and available to provide at CPSC’s request. The companies must have processes to verify that all underlying requirements are satisfied.
  • Warning labels on all products requiring them.
  • Tracking labels  on all products that require them.
  • Correction procedures to fix problems, conduct recalls, and respond to CPSC letters of advice.
  •  Incident reporting procedures to investigate incident reports, meet CPSC reporting requirements, and correct “systemic issues” found by the investigations.

Under both decrees, the companies must certify to the Compliance Office that they have met all provisions, accept CPSC facility inspections to ensure such compliance, and submit to at least two years of CPSC monitoring.


The CPSC sent 21 letters of advice to Unik from November 2011 to January 2015. The allegations involved lead content, phthalates, small parts, accessible batteries, art material labeling, third-party certification, and tracking labels


The Brightstar allegations involved lead content, warning labels on marbles, strollers’ folding mechanisms, third-party certification, and tracking labels. The CPSC sent nine letters of advice to Brightstar from September 2013 to April 2015.


Over the last several years, the creation of a compliance program has become a mandatory element of every settlement with the CPSC. 


The CPSC expects companies to have a robust compliance plan in place. Do you have all of the required elements in place?  Let Jacoby Solutions be your Independent Product Safety Coordinator and call us to schedule a CORE audit to see how your People, Process and Technology stack up..

JPMA Moderates Panel at ICPHSO

Jacoby Solutions at ICPHSO


At the International Consumer Product Health and Safety Organization (ICPHSO) Conference held on Feb. 23-26 in Orlando, JPMA moderated the panel: How Data Sharing Can Lead to More Effective Policy. The panel explored not only the importance of how sharing of data can improve federal rulemaking and regulatory policy, but also improve and refine corporate policy.

The session was moderated by JPMA Managing Director of Government and Public Affairs, Julie Vallese, and the panel participants were Joan Lawrence from the Toy Industry Association, Jennifer Schechter from Consumer Reports, Bill Jacoby of Jacoby Solutions and George Borlase from the CPSC. Drawing lessons from industry experts and regulatory agencies currently working in collaboration with regards to data sharing, this panel addressed ways to effectively share data and discuss how the interpretation of data can affect public policy, corporate policy and protections, and the public perception of issues.


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.

Maker of children’s nap mats agrees to remove flame retardant chemicals

The chemical commonly known as “TDCPP” or “Tris” [Tris(1,2-dichloro-2-proply) phosphate)] is commonly used as a flame retardant in home furnishings (couches, chairs, pillows, and ottomans) as well as automotive products (seat padding, overhead liners, foams, and infant car seats). In October 2011, California’s Office of Environmental Health Hazard Assessment (OEHHA) listed TDCPP as a chemical on Proposition 65 list of chemicals.Fire Retardant

At that time both Retailers and manufacturers were having to balance the competing requirements of Proposition 65 and California’s Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation, which requires furniture and children’s products to withstand igniting when exposed to an open flame for up to twelve seconds.

However, on April 15, 2013, the Center for Environmental Health reported reaching an agreement with Peerless Plastics, a company that makes children’s nap mats, requiring it to remove the flame retardant chemicals in its products by August 1, 2013.

The agreement was reached under California’s Proposition 65 (Prop. 65), which lists chemicals known to the state to cause cancer or reproductive harm and requires companies to warn consumers if their products contain such chemicals.

The center apparently initiated legal action against Peerless and more than 50 other companies earlier this year under Prop. 65 after finding that most of the company’s nap mats tested contained flame retardants. According to the center and other advocacy organizations, children are exposed to these chemicals when they leach into the air and settle in dust that children touch and ingest. See Center for Environmental Health Press Release, April 15, 2013.

Top CPSC Developments to Watch for in 2013

cut_red_ribbon_pc_400_clrThe Fiscal Year (FY) 2013 Operating Budget for the Consumer Product Safety Commission (CPSC) has some items that are likely to make either the biggest or most news in the coming year. They are the CPSC’s compliance, import surveillance and hazard identification activity.


Compliance: Enforcement activities under the rulemaking of the Consumer Product Safety Improvement Act of 2008 (CPSIA) will be stepped up.  These compliance efforts will include; data analysis, investigations and assessing the level of compliance with new regulations.  The 2013 budget targets compliance and enforcement programs for;


  • CPSIA-mandated requirements for cribs, toddler beds, play yards, bed rails, strollers, and swings
  • Federal Hazardous Substances Act regulations for toys, bath seats, rattles, pacifiers and infant pillows


Import Surveillance:  With the passage of the CPSIA, the CPSC was directed to create an International Trade Data System/Risk Assessment Methodology (ITDS/RAM) to help identify products entering into the U.S. that have a high probability for violation of consumer product safety rules and regulations.  Based on this the CPSC launched a “proof-of-concept” pilot program that uses data collected at the port by U.S. Customs and Border Protection’s (CBP) International Trade Data System, and integrates the data with CPSC surveillance systems to analyze incoming imports.  Imports which are identified as “high risk” are targeted based on predetermined rule sets and stopped at the port for inspection.  In 2013, this pilot program is expected to expand to 15 major U.S. ports.  The CPSC has established four areas for measuring successes with the program;

  • Improve import surveillance targeting effectiveness
  • Facilitate legitimate trade
  • Improve working effectiveness with CBP to harness existing federal port resources in the interdiction of noncompliant consumer product imports
  • Protect U.S. intellectual property, consistent with the CPSC’s safety mission

The CPSC is expected to continue its collaboration with the CBP to implement national operations designed to optimize the federal government’s response to product’s that are imported into the U.S. that may put consumers at risk.

Another indication of this collaboration is the rewrite of 16 CFR 1110 which lays out the requirements for manufacturers/importers of record with regard to certificates of conformity (children’s and non-children’s products).  Currently there is not a requirement for children’s product importers to file a certificate with the CBP or CPSC prior to the product entering into the U.S.  The importer would only have to have the certificate “available upon request” to either the CBP or the CPSC.  The proposed change would require the importer to electronically file a children’s product certificate with the CBP prior to the product entering into the U.S. as part of their importation documents.


Hazard Identification:  In 2013, the CPSC will prepare draft final rules for the following products;

  • Bassinets
  • Bassinet attachments to play yards
  • Bedside sleepers
  • Handheld carriers
  • Soft infant carriers
  • Strollers

The CPSC will also prepare draft final rules for; rare earth magnet sets, mattresses and toy guns with caps.  In addition draft rules will be prepared for infant slings, infant inclined sleep products, revisions to the FHSA definition of “strong sensitizer” and a petition for crib bumpers will be evaluated.


Voluntary Standards:  The following voluntary standards are expected to have the most activity in 2013;

  • Baby monitors
  • Bassinets/cradles
  • Bath seats (infant)
  • Batteries
  • Bed rails
  • Bunk beds
  • Beds (toddler)
  • Bedside sleepers
  • Bicycles
  • Booster seats
  • High chairs
  • Youth chairs
  • Changing tables
  • Children’s metal jewelry
  • Full-size cribs
  • Non-full-size cribs/play yards
  • Infant bedding/accessories
  • Infant bouncers
  • Infant carriers (frame)
  • Infant carriers (handheld)
  • Infant carriers (soft)
  • Infant gates
  • Infant recline sleep products
  • Infant slings
  • Infant swings
  • Infant tubs
  • Infant walkers
  • Inflatable play devices
  • Phthalates
  • Playground equipment (for children under 2 years)
  • Playground equipment (home)
  • Strollers
  • Toys
  • Trampolines

Strategic Goals for Commitment to Prevention include;


Performance Measurement

FY2013 Target

Hazard Number of Voluntary standards activities supported or monitored by CPSC Staff


Hazard Number of candidates for rulemaking prepared for Commission consideration


Compliance Number of establishment inspections conducted by Field Staff


Compliance Percentage of products screened by CPSC Field Staff resulting in violations

Baseline to be determined

Hazard Number of items/component parts tested for specific standards and regulations


Import Number of import examinations


Import Sample yield per 100 import entries


Import Establish a robust ITDS/RAM rule set to target intellectual property violations where a health and safety hazard is suspected in consumer product imports

To be determined

Compliance Total number of products screened by CPSC Staff

Baseline to be determined

Compliance Number of consumer products screened by CPSC Field Staff through Internet surveillance activities

Baseline to be determined





Additional Items:  The Commission has added the following items to the FY 2013 budget which is targeted at reducing the testing burden by manufacturers and/or importers of record for children’s products;


  • Determinations Regarding Heavy Metals – the Commission would like to undertake the process of determining if there are materials that would qualify for exemption to the heavy metals specification found in section 4.3.5 of ASTM F963-11.  The materials cannot be found to contain higher than allowed concentrations of the eight heavy metals.
  • Determinations Regarding Phthalates – the Commission would like to undertake the process of determining if there are materials that do not, and will not, contain prohibited phthalates, and would therefore be exempt from third party testing
  • Determination Regarding Adhesives in Manufactured Woods – the Commission would like to undertake the process of determining if there are any adhesives used in manufactured wood that can be determined not to contain lead in amounts above 100 ppm.

Need Help with CPSIA Compliance? Call us today to see how we can help you ensure that you Are CPSIA Ready!

Is your company compliant? Need help in deciphering the law as it pertains to you? Jacoby Solutions can review your companies compliance plan and help you tailor your business operations to ensure you comply.  Contact us to get started today!


The Year Ahead

2013 – What to Watch from the Consumer Product Safety Commission

In a recent article from the law firm of Roetzel & Andress by attorneys, Brian E. Dickerson, John Boudet, Amanda M. Knapp and Jonathan R. Secrest, they outline five (5) areas for companies to watch out for in the New Year with regard to the CPSC.

  1. Commission Membership – currently the commission is made up of two Democratic commissioners and one Republican commissioner.  It is pointed out that President Obama can fill the two vacancies on the Commission this year; however one of those vacancies must be a Republican.  He has the choice of just letting the Commission continue as it is currently.
  2. Civil Penalties – civil penalties were dramatically increased with the passage of the CPISA in 2008 but thus far have not resulted in increased civil penalties for companies.  It was noted in the article that until October 2012, the commission was evenly split between Republican and Democrat commissioners and now with a Democratic majority the expectation is that civil penalties will increase.   An example of this was the 2012 Hewlett-Packard penalty where the number of incidents and the timing of reporting a product defect was the basis of the large civil penalty.
  3. Online Database Rulings – the CPSC’s online database,, was another issue brought forth by the law firm.  They discussed a recent opinion by a U.S. District judge in the matter of Company Doe v. Tenenbaum, where it was held that “the Commission had abused its discretion in seeking to publish a complaint on its online database because it failed to meet the statutory requirement that a compliant of harm be ‘related to’ the product identified in the compliant.”  Since this is the first court challenge to the online database it is uncertain as to if other companies will use judicial review to prevent publication in the database.  Additionally the current case is being appealed and is being joined by several consumer interest groups who are seeking to obtain the identity of the company and the product.
  4. Administrative Complaints – a more aggressive approach by the commission in the filing of administrative complaints and recalls of products was noted.  The case of the manufacturer of “Buckyballs” was used to show how the Commission went from working with the manufacturer on the development of education, packaging and warnings for the product to litigation, product ban and recall.  In addition the Commission showed a wiliness to go directly to retailers, urging them to stop selling the product.  It would seem that the Commission has adopted the stance that warnings are not sufficient to prevent hazards presented by products.
  5. New Section 6(b) Interpretation – section 6(b) of the Consumer Product Safety Act (CPSA) prohibits the Commission from disclosing information about a consumer product and the identity of the manufacturer or private labeler until the Commission has taken “reasonable steps” to assure that the information is accurate and fair.  In a new interpretation of section 6(b) the Commission has stated that it will announce that it is “investigating” a product or company solely on the information provided in an initial or full report submitted under section 15 of the Consumer Product Safety Act (CPSA)

Is your company compliant? Need help in deciphering the law as it pertains to you? Jacoby Solutions can review your companies compliance plan and help you tailor your business operations to ensure you comply.  Contact us to get started today!

New FTC Policy Statement on Labeling

The FTC has announced a new enforcement policy statement designed to put retailers who import textile products on the same footing as those who source textiles domestically or from US importers.

The Textile, Wool and Fur Labeling Acts require that garments be labeled with the fiber content, country of origin if imported and other requirements. The Acts allow for retailers to receive in good faith continuing or separate guarantees from foreign or domestic manufacturers assuring that the products are correctly labeled or promoted. Such guarantees give the retailers a “safe harbor” from the liability of false advertising.

Now the FTC has said it will not enforce against a retailer that directly imports such products unless they “knew or should have known” that the products were incorrectly labeled or promoted.  There are some limits — a retailer will still be liable for products it markets as private label.

Also if the retailer embellishes or misrepresents information provided by the manufacturer in its advertising, liability will also attach.  Of course, retailers may still want to obtain some type of written assurance from foreign suppliers, both for contractual purposes and also for use in potentially deflecting any argument that they “should have known” that the product was improperly labeled or marketed.

These acts are not subject to frequent enforcement but they do subject retailers to significant and expensive compliance obligations. This policy statement is a meaningful step forward to recognition of the global marketplace.


Is your company compliant? Need help in deciphering the law as it pertains to you? Jacoby Solutions can review your companies compliance plan and help you tailor your business operations to ensure you comply.  Contact us to get started today!

Bill Jacoby is the founder principal at Jacoby Solutions and developed the CORE Audit (Compliance Operations Readiness Engagement Audit), the company’s proprietary approach to business operations readiness A one-stop shop for manufacturing and distribution companies in need of a solutions partner who can help them evolve their business while keeping an eye on compliance, Jacoby Solutions saves companies time, money and resources while helping them become CPSIA ready.

Baby Steps: Six steps to improving product liability risk management

In a recent article by Sarah Fang of Saiber LLC titled, “Baby steps:  six steps to improving product liability risk management” Ms. Fang highlights the risks associated with the manufacture of products overseas.  In the article, Ms. Fang points out that in 2012 the Consumer Product Safety Commission (CPSC) ordered the recall of over 312 products of which almost 52% were manufactured in China.  Of those products recalled half were classified as children’s products with most of those having violations ranging from lead paint to burn and strangulation hazards.

The impact of these defective products is felt not only in the area of brand equity and customer loyalty or retention but also in the company’s bottom line.  It was noted in the article that even a small loss in brand value, given the very large U.S. consumer market, can lead to large financial implications for the company.  As noted in a study done by Bain & Co. on customer retention, customers will not remain loyal if the products they buy are defective.  Legal expenses are impacted as well as the cost of defending a product liability claim in U.S. courts is very high.

The article goes on to lay out six areas where companies can mitigate and/or prevent defective products and improve product safety.  Each of the steps happens to be associated with either regulations or rulings by the CPSC with regard to children’s products as found in the “Testing Pertaining to Product Certification Rule” as amended by 16 CFR Part 1107.

  1. Ensure compliance with all code, statute, or product regulations.  As it is with most of the product regulations the CPSC oversees, the expectation is that the manufacturer knows what rules; bans or standards apply to their product and will have tested the product accordingly before it enters the stream of commerce in the U.S.  The CPSC also requires that any mandatory testing be done by one of their accredited laboratories which can now be found in most major overseas production centers around the world.  This initial certification of the product is done so that the manufacturer may issue a Certificate of Conformity or a Children’s Product Certificate (CPC) which is a statement from the manufacturer that the product conforms to all applicable rules, bans or standards that would apply.  The Product Certification Rule goes one step further in requiring the manufacturer to submit a “representative samples” of the product for testing.  The numbers of samples to be submitted is based on the manufacturing process and the total number of products produced in that particular lot, batch or production run.  If any of the samples submitted were to fail a safety standard then it would be deemed that the whole lot, batch or production run is not compliant.  The manufacturer would then need to take the steps needed to investigate and document the failure and submit new samples for re-testing.
  2. Proper documentation and record retention.  The ruling requires manufacturers to keep the following documents (either electronically or in hardcopy) for each children’s product for five years from the date of production; (a) a copy of the Children’s Product Certificate, (b) records of each third party certification test for each manufacturing site, (c) records of testing plans, actual testing and/or results, as applicable, (d) records of the number of representative samples selected for periodic testing and the procedure used to select them, the testing conducted on those samples, and the basis for inferring compliance from the results of those tested samples, (e) records of and descriptions of all material changes in the product, (f) records of the undue influence procedures implemented by the manufacturer including training materials and employee attestations.
  3. Properly manage any and all outsourcing for quality.  Manufactures that rely on third party component suppliers or foreign manufacture finished good suppliers may us the testing or certifications from these suppliers to issue certificates for the finished product.  However the manufacturer must exercise “due care” in accepting these certificate or finished product testing to ensure that all the proper testing has been done and that it was completed by a CPSC accredited laboratory.  Additionally the requirement of sufficient or “representative samples” must be documented along with any initial testing failures and the remedy of those failures.
  4. Contract management.  Manufacturers must carefully draft a proper contract and purchase order that reflect all of the additional documentation and recordkeeping associated with the new periodic testing rule when dealing with both foreign and domestic suppliers, especially if relying on supplier certificates or third-party testing reports for product compliance.
  5. Proper training.  Manufacturers must have a “written statement” by company officials that; states that the exercise of undue influence on third-party laboratories is unacceptable and directs every “appropriate staff member” to receive training on avoiding undue influence.  In addition each staff member that goes through such training must sign a statement attesting to participation in the training.  Manufacturers must also inform employees that allegations of undue influence may be confidentially reported to the CPSC and provide a description of the manner in which such a report can be made.  Manufacturers are required to retrain staff members if there are any changes in the CPSC’s undue influence requirements.
  6. Monitoring product performance.  The new rule requires manufacturers to retest its production batch any time a “material change” has been made that could impact the products continued compliance to the applicable safety rules.  Material change could include such things as; changes in the production design, the manufacturing process, the sourcing of a component part (change in supplier) or the component part itself.
Jacoby Solutions offers Compliance “On Demand” consulting to help small companies deal with their compliance and business operations. Please contact us at 484-885-0707 or email us …. for more information.

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


For more information regarding your companies compliance with CPSIA, contact Jacoby Solutions today.  We can help!

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.