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Consumer Product Safety Improvement Act Certification Requirements

November 17, 2008

The Consumer Product Safety Improvement Act (CPSIA) was signed into law on August 14, 2008.  Among other things, the CPSIA institutes new product certification requirements that took effect November 12, 2008.  Below are some key facts that may be helpful as you work toward incorporating the new certification requirements into your business model.

  • Who must certify?  At least in the initial phase, either the importer (in the case of an import), or the domestic manufacturer (in the case of a product manufactured domestically), must certify compliance with Consumer Product Safety Commission (CPSC) rules, bans, standards and regulations.

  • What is the scope of the certification?  The new certification requirements apply to any products that are covered by rules, bans, standards and regulations that are administered by the CPSC.  This includes, but is not limited to, all laws and regulations governed by the Consumer Product Safety Act (CPSA), Federal Hazardous Substances Act (FHSA), Flammable Fabrics Act (FFA), and the Poison Prevention Packaging Act (PPPA). Although on November 10, the Commission issued a final rule with immediate effect on the certificate requirements, it remains unclear which (if not all) provisions of the covered Acts require certification.  It is likely that further regulatory guidance will be forthcoming.  See http://www.cpsc.gov/businfo/frnotices/fr09/certification.pdf.

  • When is the certification needed?  Importers and domestic manufacturers must provide the certificates beginning November 12, 2008.  For imports, the certificate must be available when the product or shipment is available for inspection in the United States; for domestic products, the certificate must be available “prior to the introduction of the product or shipment in question into domestic commerce.”

  • Where must the certificate be provided?  The certificate must “accompany” the applicable product or product shipments, and be “furnished” to each distributor or retailer of the product.  On November 10, 2008, the CPSC clarified, by issuing an emergency ruling, that the certification may be electronic.  To certify electronically, a certificate must be identified by a unique identifier provided with the product, and must be accessible via the internet or other electronic means.

  • What must the certificate say?  The certification must include:

    • Identification of the product;

    • each rule, ban, standard, or regulation applicable to the product;

    • identification of the manufacturer, importer and private labeler, if applicable;

    • contact information for the individual maintaining records of test results;

    • date and place of where the product was manufactured and tested; and

    • identification of any third-party laboratory on whose testing the certificate depends.

  • What if an importer fails to provide the certificate?  If an importer fails to provide certification, the imported product “shall be refused admission” and “shall be destroyed . . . unless the Secretary of the Treasury permits the export in lieu of destruction.”  In addition, “[a]ll expenses . . . in connection with the destruction . . . shall be paid by the owner or consignee.”  15 U.S.C. §§ 2066(e), (f).

In light of the November 12th deadline, we want to ensure that you are aware of these new certification requirements.  If you have any questions or concerns, please contact Tom Barba at (202) 429-8127.