FJATA ALERT:  CPSC TESTING AND CERTIFICATION RULES

On October 19, 2011, the Consumer Product Safety Commission (“CPSC”) adopted two important rules on testing and certification of interest to producers of children’s jewelry, and two proposed rules.

• The final rule entitled Testing and Labeling Pertaining to Product Certification establishes protocols and standards for periodic testing of children’s products, with an effective date 15 months from the date of publication in the Federal Register.  Of note, the final rule eliminated the proposed exclusion from periodic testing until 10,000 units were produced.  The requirements apply to each facility, raising questions about the practical ability of importers to exercise control.
• The final rule entitled Conditions and Requirements for Relying on Component Part Testing or Certification Party’s Finished Product Testing or Certification to Meet Testing and Certification Requirements outlines the regulatory requirements for reliance on component testing and finished product testing by other parties.  The component testing rule will be effective 30 days from publication in the Federal Register. The rule includes strict traceability requirements and attestation obligations.
• The proposed Amendment to Regulation on Testing and Labeling Pertaining to Product Certification Regarding Representatives Samples for Periodic Testing of Children’s Products concerns the selection of “representative samples” for testing in response to provisions of H.R. 2715, which amended some aspects of the Consumer Product Safety Improvement Act (“CPSIA”).
• The Notice, Application of Third Party Testing Requirements; Reducing Third Party Testing Burden; Request for Comments, responds to provisions of H.R. 2715 directing the CPSC to consider ways to reduce testing burdens.

We provide a short summary below.

I.          Final Rule: Testing and Labeling Pertaining to Product Certification

Periodic tests of children’s products. In addition to third party tests to support certifications of children’s products, and new tests and certifications when a “material change” to a product has occurred, the Consumer Product Safety Improvement Act (CPSIA) requires periodic testing of children’s products in each manufacturing facility.  CPSC originally proposed that “periodic testing” be conducted by accredited third party laboratories annually or after production of 10,000 units.  The 10,000 unit safe harbor has been eliminated.  Instead, CPSC proposes one of three options:

• annual testing per a “periodic testing plan,” which must specify the tests, test intervals, and number of samples tested;
• testing once every two years if the manufacturer implements a written production testing plan for each facility; or
• testing once every three years if the manufacturer relies on internal testing conducted by a laboratory accredited to ISO/IEC 17025:2005.

As a practical matter for most jewelry producers, should production extend over a year, annual testing will likely prove simplest, but the rule sets out additional requirements for companies that wish to take advantage of the other options.

H.R. 2715 altered statutory language requiring testing of “random” samples in favor of testing “representative” samples.  The CPSC has deferred action on this aspect and its proposed rule on the selection of representative samples is outlined below.

Recordkeeping. The CPSC did reduce some testing and certification recordkeeping burdens, retaining others.  To review:

• Companies must maintain certification records with supporting documentation (separate certification tests are required for each manufacturing facility), periodic testing records (by manufacturing facility), records describing any material changes (by manufacturing facility), and records of procedures to avoid undue influence on testing laboratories.
• The final rule eliminates the requirement that manufacturers have a written remedial action plan to address each type of test failure.
• Records (other than certification records) do not need to be maintained in English in the U.S. if they can be provided immediately to CPSC in the initial language and translated accurately into English within 48 hours of a request (or such other time negotiated with the staff).
• Relevant testing and certification records would need to be maintained for five years; as initially proposed, test records were to be maintained for five years, but other records were required to be maintained for the life of the product plus five years.
• Written undue influence policies are still required but the final rule eliminates the annual training component.

II.        Final Rule: Component Testing

Component testing is voluntary, but if relied upon, component tests or tests conducted by third parties must meet specific requirements to assure traceability and product integrity.  Attestations from all certifiers and from test laboratories about how the tests were conducted and samples handled are required.  Traceability requires identifying the component down to lot or batch number (or other information sufficient to identify the component parts or finished products to which the tests apply).  Records must be maintained for 5 years.  It is not clear at present that component testing will materially reduce the test burden for most jewelry companies, but there may be opportunities to explore this with raw material and component suppliers (metal, paint, etc.).

III.       Proposed Rules: Testing of Representative Samples; Reduction of Test Burdens

As noted above, per H.R. 2715, manufacturers must select “representative” product samples for testing.  The CPSC’s proposed approach to sample selection still seems to be rather proscriptive.  The process must provide a basis for the manufacturer to infer compliance about the population of untested products produced during the applicable periodic testing interval.  How an importer will be able to do that remains an open question.  The Commission also approved a notice of proposed rulemaking on reducing test burdens.  The notice lists some specific questions on which the Commission staff seeks input.  Both proceedings offer an opportunity to comment on the burdens and to offer suggestions for alternative approaches.  Comments will be due 75 days after publication in the Federal Register.

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FJATA welcomes your comments and questions on the final rules, and input on what position it should take in response to the two important proposed rules.