Crowell & Moring Attorneys Attend International Consumer Products Symposium

Last week, Laura Walther and Natalia Medley, attorneys in Crowell & Moring's Product Risk Management practice, attended the International Consumer Products Health and Safety Organization ("ICHPSO") annual meeting and training symposium held in Orlando, Florida, on February 24-27. This year's symposium focused on enforcement of the new U.S. Consumer Product Safety Improvement Act ("CPSIA"). Attendees included top Consumer Product Safety Commission ("CPSC") officials, including Acting Chairman Nancy Nord, representatives from state attorney general offices, manufacturers, retailers, distributors, trade associations, consumer advocacy groups, testing laboratories, and lawyers.

During the symposium, CPSC officials shared their views and insights while discussing the ongoing implementation and enforcement of the CPSIA. We share the following highlights from the symposium, but note that comments by representatives of the CPSC were made in their personal capacities and may not be the "official" CPSC positions:

• A new CPSC Chairperson is expected to be nominated soon.
  
• It is anticipated that Congress will introduce an amendment to the CPSIA to potentially provide the agency with increased authority and flexibility for implementation. We are tracking proposed legislation and will send a follow up alert when a CPSIA amendment is offered.
  
• Upcoming CPSC Guidance - CPSC officials indicated that additional guidance will soon be provided with respect to a number of issues, including:
  • auditing protocols for product testing,
  • toy testing protocols,
  • tracking label criteria,
  • how to certify to the FHSA,
  • guidance on which products will need to be certified to which provisions, and
  • rules regulating certain infant walkers, drawstrings, and hair dryer cords as substantially hazardous products.
    
• Testing/Certification - CPSC officials mentioned that their scrutiny is focused currently on:
  • problems with "golden samples," where test samples are manufactured separately from the actual products that are introduced into commerce.
  • problems with the "switcheroo," where a foreign manufacturer changes suppliers or processes without informing the importer or private labeler, causing problems with the validity of the testing.
    
• Imports - CPSC officials noted that any or all products imported by an entity not in compliance with the CPSIA inspection and recordkeeping requirements may be refused admission to the U.S.
  
• State Attorney General Enforcement -
  • State attorneys general may still enforce CPSIA certification requirements, even though the CPSC has stayed its enforcement of that provision. CPSC officials articulated their wish that the state attorneys general will respect the CPSC's enforcement stay.
  • CPSC officials also suggested that under the CPSIA, state attorneys general are only required to notify the CPSC of an enforcement action once a case has been filed; prior to filing, a state attorney general can use its CPSIA enforcement powers to pressure and negotiate settlements with manufacturers without having to inform the CPSC. CPSC officials urged manufacturers and retailers to notify the agency if and when this happens.
    
• Section 15(b) Reporting Safe Harbor for Lead and Phthalates Only: According to CPSC officials, manufacturers do not currently have to report for non-compliance with lead or phthalates limits if:
  • The product in question has been withdrawn from the market and the manufacturer is the sole manufacturer or supplier of that product (and provided the product does not pose a substantial risk of harm beyond mere non-compliance with the ppm limits);
    OR
  • The manufacturer knows the CPSC has been properly informed of the issue.
    
• Additional Guidelines for Section 15 Reporting:
  • CPSC officials indicated a preference for electronic reporting.
  • CPSC officials suggested that when in doubt, report, but do not report trivial issues.