Applicability of CPSIA to Inventory and Non-Complying/Recalled Products

This summary covers aspects of two recently posted CPSC documents on the applicability of CPSIA's requirements to products in inventory. It also covers the new limitations imposed by the CPSIA on the sale, import, and export of non-complying and recalled products.

(Note that this summary includes relevant views of CPSC staff from a September 4, 2008 public meeting held by CPSC to discuss the CPSIA. See ITT's Online Archives or 08/26/08 news, 08082610, for BP summary announcing the public meeting.)

Applicability of CPSIA's Requirements to Products in Inventory

CPSC staff stated that they have received numerous questions on the applicability of CPSIA's requirements to products in inventory. CPSC staff addressed some of these questions at the meeting and subsequently posted two documents on this topic (see below for links).

According to CPSC staff, each requirement of the CPSIA has different wording on timeframes and applicability that must be examined separately to determine the provision's applicability to inventory. For example:

Third-party Testing/Certification

Law: The third-party testing requirement shall apply to any children's product manufactured more than 90 days after the CPSC has established and published notice of the requirements for accreditation of third-party conformity assessment bodies.

CPSC view: The third-party testing requirements would not apply to inventory that was manufactured before that time.

Tracking Labels

Law: Effective 1 year after enactment (August 14, 2009), the manufacturer of a children's product shall place permanent distinguishing marks on the product and its packaging.

CPSC view: As the time for placing permanent distinguishing marks on products is generally at the time of manufacture, this requirement would be difficult to interpret as applying to prior inventory.

Toy Safety Standard

Law: Effective 180 days after enactment (February 10, 2009), the provisions of ASTM International Standard F963-07 Consumer Safety Specifications for Toy Safety (ASTM 963) as it exists on the date of enactment shall be considered to be consumer product safety standards issued by the Commission under section 9.

CPSC view: Consumer product safety standards (such as the one above for toys) are only applicable to consumer products manufactured after the effective date.

Lead Content in Children's Products

Law: Effective 180 days after enactment (February 10, 2009), any children's product that contains more than 600 parts per million total lead content by weight for any part of the product shall be treated as a banned hazardous substance.

CPSC view: Products that contain lead above the limits set forth in CPSIA cannot be sold from inventory or on store shelves after February 10, 2009. As a result, it would "apply retroactively" to inventory.

Lead Paint Ban

Law: Effective 1 year after enactment (August 14, 2009), the CPSIA amends the lead paint ban by reducing the maximum amount of allowable lead from 0.06% to 0.009% of the weight of the total nonvolatile content of the paint or the weight of the dried paint film.

(A CPSC document expresses this change differently, that the lead limit in paint must be reduced from 600 ppm to 90 ppm.)

CPSC view: The new provisions on the lead paint limit would ban the sale of any product containing amounts over the new lead paint limit of 90 ppm in inventory or on store shelves as of August 14, 2009. As a result, it would "apply retroactively" to inventory.

4 Wheeled ATVs

Law: Within 90 days after CPSIA's August 14, 2008 date of enactment, the CPSC will publish as a mandatory consumer product safety standard the American National Standard ANSI/SVIA -1 -2007. This standard will take effect 150 days after it is published.

CPSC view: Consumer product safety standards (such as the one above) are only applicable only to consumer products manufactured after the effective date.

(See CPSC presentation below for information on 3 wheeled ATVs and the issue of inventory, as well as new imports.)

Sale, Import, Export of Recalled/Uncomplying Products

CPSC staff stated that though it never encouraged selling recalled products, the CPSIA specifically makes it a prohibited act, giving CPSC the authority to ban the sale of such products, even when voluntary action is taken in consultation with the CPSC. When asked whether this new prohibition would apply to any product ever recalled, CPSC stated that it is considering this issue but is likely to focus on newer recalls.

In terms of the import and export of recalled or non-complying products, CPSC noted that the CPSIA provides it with considerably strengthened authority. Before, non-complying imported products might have been destroyed or returned; now destruction is the norm. In addition, the export of such products is now only permitted under certain limited circumstances; and CPSC notes that U.S. Customs and Border Protection (CBP) has indicted "little interest" in allowing the export of non-complying products.

(For additional information on CPSC's new authorities on recalls; manufacturer product hazard reporting and action plans; the sale, import, or export of nonconforming/recalled products; and the destruction of non-compliant imported products, see ITT's Online Archives or 08/04/08 news, 08080410, with also includes a comprehensive BP summary of the CPSIA.)

(See ITT's Online Archives or 09/15/08 news, 08091515, for BP summary of CPSIA's tracking label requirement for children's products/packaging. See ITT's Online Archives or 09/10/08 news, 08091005, for BP summary of CPSIA's third-party testing and certification requirements for most children's products. See ITT's Online Archives or 08/26/08 news, 08082605, for BP summary of CPSIA's ban on certain phthalate levels in children's toys/child care products.

See ITT's Online Archives or 09/12/09 news, 08091210, for BP summary of CPSIA's expanded general conformity certification requirements.

See ITT's Online Archives or 08/27/08 and 08/29/08 news, 08082705 and 08082905, for BP summary of CPSIA's progressive ban on lead in children's products and the increase in stringency of the lead paint ban, respectively.)

CPSC Web page on the CPSIA available at http://www.cpsc.gov/about/cpsia/cpsia.html

CPSC presentation, "Overview and Regulatory Timetable" (from 09/04/08 public meeting) available at http://www.cpsc.gov/about/cpsia/orttable.pdf and CPSC presentation, "Children's Products," (from 09/04/08 public meeting) available at http://www.cpsc.gov/about/cpsia/childproducts.pdf

CPSC Office of the General Counsel Memorandum on the Retroactive Application of CPSIA' lead limits to Inventory (dated 09/12/08) available at http://www.cpsc.gov/library/foia/advisory/317.pdf