What You Need to Know about the Consumer Product Safety Improvement Act of 2008

The Consumer Product Safety Improvement Act, which was recently signed into law, sets restrictions on the manufacture and distribution of consumer products, places a strong focus on children's products, and creates or enhances existing requirements for record-keeping. It is important to be familiar with this new law as the sale of products that do not comply can result in significant civil and criminal liability.

This advisory does not cover all requirements of the Act. The Consumer Product Safety Commission (CPSC) will be issuing further regulations and interpretations of the Act's requirements. We will strive to keep our clients informed of significant developments when they happen.

A key provision of the Act is that it prohibits manufacturing or importing a consumer product in advance of the effective date of a new product safety rule—either under the Act or other legislation—at a rate greater than the rate at which that product was produced or imported prior to the promulgation of that rule.

Manufacturers, distributors, importers, sellers and advertisers must be aware of the Act's requirements. Some requirements were effective as of Nov.12, 2008; others become effective at later dates. Unless otherwise noted, the requirements discussed in this advisory were effective Nov. 12, 2008.

Product testing and certification

Significantly, the Act increases the range of products that require testing and certification, sometimes called a “supplier's declaration of conformity.” This certification must be based on a test of the product or a “reasonable testing program.”

Children's products

Third-party testing. The Act creates an additional third-party testing requirement for children's products, which are defined as those primarily intended for children 12 years of age or younger. Every manufacturer, importer or private labeler of such a product must have it tested by an accredited independent testing lab and must issue a certificate that the product meets all applicable CPSC requirements.

Lead content. The Act also sets lower limits for the lead content in children's products, and lowers the acceptable level of lead content in the paint used on those products. The limits on the amount of lead in children's products are phased in over the course of three years. Children's products that contain more lead than 600 ppm are banned in the United States after Feb. 10, 2009. After one year from enactment, or Aug. 14, 2009, these products may not contain more than 300 ppm of lead. After Aug. 14, 2011, the limit goes down to 100 ppm.

Product labeling. The Act requires that, after Aug. 14, 2009, manufacturers have a tracking label or other distinguishing permanent mark on any children's product, which must contain certain information, including the source of the product, the date of manufacture and more detailed information on the manufacturing process such as a batch or run number. However, this provision applies “to the extent practicable” and recognizes that it may not be practical for permanent distinguishing marks to be printed on small toys and other small products that are manufactured and shipped without individual packaging.

The third-party testing and certification requirements for children's products are phased in on a rolling schedule. The CPSC will issue laboratory accreditation requirements for different categories of children's products. Subsequently, each children's product in that category that is manufactured more than 90 days after the scheduled date must be tested and certified to the applicable requirements. The schedule for CPSC to issue the laboratory accreditation requirements and the third-party testing schedule is set forth on the timeline shown in the chart below.

Packaging for certain toys and games intended for use by children is required to contain a label, or cautionary statement, regarding choking hazards. This section of the new law requires that advertising that provides a direct means of purchasing or ordering these products must contain an appropriate cautionary statement. When a product's packaging requires a cautionary statement, the advertising for the product, including Internet sites and catalogues, must bear the same cautionary statement. There are requirements as to the layout, type, language, color and placement of the statement.

If you have questions about the Act, or need help with legal issues involving the manufacture or distribution of your products, we are available to assist you.