CPSC Votes To Publish Requirements for Third Party Testing and Certification to the Mandatory Toy Safety Standard Effective January 1, 2012

On July 20, 2011, the Consumer Product Safety Commission (CPSC) voted unanimously to publish a notice of requirements for third party testing and certification of children's toys to the mandatory toy safety standard, ASTM F-963.  The Commission also voted to stay this third party testing and certification requirement until December 31, 2011.  The testing and certification requirement will be enforced for toys manufactured or imported on or after January 1, 2012.  Since this notice is being published prior to August 14, 2011, pursuant to the Consumer Product Safety Improvement Act of 2008 (CPSIA), the CPSC is not required to consider public comments in publishing notice of these requirements.

Although the vote was unanimous, it was not without some disagreement among the Commissioners.  Both CPSC Chairman Inez Tenenbaum and Commissioner Nancy Nord issued written statements, identifying contentious issues.  Chairman Tenenbaum stressed that these new requirements continue the CPSC’s commitment to improving toy safety, noting:  “Under my leadership, CPSC has been steadily improving the requirements for toy safety . . . .”  Tenenbaum “reject[ed] the notion that delaying this action would somehow lead to a better result for the safety of our nation’s children,” saying that “[c]alls for further pauses are difficult to see as anything other than wishes for delays (that would come at a real safety cost) in the hopes the underlying legal requirements will be watered down.”

Commissioner Nord, on the other hand, disagreed with the CPSC’s “hasty” decision to publish the testing requirement in an effort to avoid having to consider public comment.  Nord said that a new version of ASTM F-963 will be published by the end of the year and that she did not understand why the Commission would publish testing requirements for a toy standard that would soon be outdated.  She indicated that she “joined in the majority’s vote only because of a negotiated agreement that we would stay enforcement of the testing mandate through December 31, 2011.”  That, she noted, would “prevent an unnecessary economic train wreck for the toy industry immediately prior to the holidays.”