Ad Law Access : Washington D.C. Advertising Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

Yesterday the Consumer Product Safety Commission ("CPSC") announced that Hewlett-Packard Company has agreed to pay a $425,000 civil penalty to settle allegations that the company failed to report safety issues with its lithium-ion battery pack to the CPSC in a timely manner.

Section 15(b) of the Consumer Product Safety Act requires companies to report immediately to the CPSC if they have information that a product could create a "substantial product hazard" or create an unreasonable risk of serious injury or death. The CPSC alleges that HP was aware of incidents of overheating, two of which allegedly involved injuries to consumers, 10 months before reporting to the CPSC. HP and CPSC recalled around 32,000 battery packs in October 2008.

According to a statement released by CPSC Chairman Inez Tenenbaum, the settlement with HP was negotiated under the pre-CPSIA enforcement scheme, which had much lower statutory limits on civil penalties. However, Tenenbaum indicated an expectation that the Commission’s future enforcement actions will “include civil penalty amounts that maximize the likelihood of deterring violations.”

Also yesterday, the Obama Administration announced the nomination of Marietta Robinson for CPSC Commissioner. Ms. Robinson is a trial attorney with 33 years experience and former trustee of the Dalkon Shield Trust.
 

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Yesterday the Consumer Product Safety Commission ("CPSC" or "Commission") announced provisional acceptance of a $600,000 civil penalty settlement with Build-a-Bear Workshop, Inc. The agreement resolves CPSC staff allegations that the company failed to report potential safety issues to the Commission in a timely manner pursuant to Section 15(b) of the Consumer Product Safety Act (“CPSA”). In addition to agreeing to pay the civil penalty, in a very unusual provision, Build-a-Bear agreed not to seek or accept indemnification, reimbursement, insurance, or any other form of compensation from any manufacturer, importer, or retail store in connection with the civil penalty payment.

Specifically, the staff alleged that, from March 2001 to October 2008, Build-a-Bear imported and sold approximately 260,000 folding wooden frame toy beach chairs through its website and stores and that those chairs were defective and presented a substantial product hazard or an unreasonable risk of serious injury or death to consumers. The chairs allegedly had sharp edges that could pinch, lacerate, or amputate a child’s fingertip. The company received its first report of injury in July 2007, then in October 2008 stopped sale and issued a notice to its stores to return all stores in inventory. The company allegedly learned of ten other injury reports between July 2007 and January 2009, but did not report to the CPSC until March 20, 2009. The CPSC claims that the company had obtained sufficient information to reasonably support the conclusion that a report under Section 15(b) of the CPSA was required, but failed to report immediately. Consistent with other civil penalty settlements, the staff’s allegations do not identify exactly when the company should have reported.

This settlement serves as a reminder that companies should continuously monitor consumer complaints from all sources and make determinations about their potential safety implications. Although some companies may not think that eleven injury reports indicate a pattern, the Commission in this case thought they did. Publicly-available information does not reveal why the Commission would have demanded that the company forego any indemnification or other payment from third parties, but we will watch future settlements to see if this is new boilerplate language.
 

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Yesterday the U.S. Consumer Product Safety Commission (“CPSC”) announced that Spin Master, Inc., agreed to pay a civil penalty of $1.3 million for selling and failing to report that Aqua Dots, a product Spin Master distributed, contained a substance that metabolizes into the “date rape drug” when ingested. Aqua Dots was a craft kit that consisted of multi-colored beads that stuck together when sprayed with water, allowing children to create various shapes and designs.

Spin Master allegedly received reports in mid-October 2007 of children becoming ill, receiving emergency medical attention, and falling into comas after swallowing Aqua Dots and that Aqua Dots contained 1,4-butylene glycol (“TMG”), which, upon ingestion, metabolizes into gamma hydroxybutyrate (“GHB”), also known as the “date rape drug.” The CPSC also alleges that the company received reports of children becoming ill after ingesting a similar product made by the same overseas factory using the same ingredients list. The company did not file a Section 15(b) Report with the CPSC at that time. After receiving two reports of children ingesting the product and becoming ill, on November 5, 2007, the CPSC notified Spin Master, and two days later the parties announced a voluntary recall of 4.2 million units.

The CPSC claims that Spin Master violated the Consumer Product Safety Act by failing to report in a timely manner and the Federal Hazardous Substances Act by importing and selling a banned hazardous substance. In an unusually detailed response to the Commission’s allegations, Spin Master denies all allegations that they knowingly violated the law. For example, Spin Master states that the product underwent all legally-required testing and that the company engaged an outside testing company to evaluate the toxicity of the product. A board-certified toxicologist conducted a Toxicological Risk Assessment stating that none of the ingredients was banned or restricted for use.

The recall has also triggered product liability lawsuits against Spin Master, including some class action litigation. In August, however, the Seventh Circuit affirmed the lower court’s denial of class certification in one of the cases.

Companies should take note that the CPSC continues aggressive enforcement its civil penalty authority. Even if a company does not participate in the design or manufacture of a product, it must ensure that the product meets applicable safety standards and is safe for use by the intended audience during reasonably foreseeable use and misuse. In addition, when evaluating whether a product presents a substantial product hazard or unreasonable risk of serious injury or death reportable to the CPSC, a company should consider potential product liability exposure.

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Today the Consumer Product Safety Commission ("CPSC") announced that Black & Decker (U.S.) Inc. has agreed to pay a $960,000 civil penalty to settle allegations that the company failed to report safety issues with its Grasshog XP grass trimmers/edgers to the CPSC in a timely manner.  The CPSC also alleges that Black & Decker withheld information requested by the CPSC staff.

Section 15(b) of the Consumer Product Safety Act requires companies to report immediately to the CPSC if they have information that a product could create a "substantial product hazard" or create an unreasonable risk of serious injury or death.  The CPSC alleges that Black & Decker had received a large number (at least 80) of safety complaints and "hundreds" of warranty claims before reporting to the CPSC.  There is also an implication that the company may have conducted a "silent recall" in January 2006 without the CPSC.  Although the CPSC staff requested information from Black & Decker in May 2006, Black & Decker allegedly failed to provide information about certain defects.  The staff closed its file based on the information it received, but the closing letter included boilerplate language reminding the company that it must notify the staff if there was a different risk or additional information.  At the time of the letter, Black & Decker allegedly had received 216 safety complaints and approximately 14 injury reports, but "silently acquiesced in the file closure without revealing this information."  The company then provided the additional information in October 2006 and recalled the product in July 2007.

Although the CPSC now has authority to seek up to $15 million in penalties, this is one of the higher civil penalties the CPSC has obtained, particularly for a settlement involving only one product, no children's products, and no filing of a lawsuit.  This could signal a more aggressive CPSC, particularly if it thinks that the company has withheld information, received large numbers of incident reports, or conducted a silent recall.

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Who says the Federal Government is in a state of gridlock? While all eyes were focused yesterday on the vote in the U.S. House of Representatives on the debt ceiling deal, the House and Senate both passed a bipartisan bill (H.R. 2715, “A Bill to Provide the Consumer Product Safety Commission with Greater Authority and Discretion in Enforcing the Consumer Product Safety Laws, and for Other Purposes”) to amend the Consumer Product Safety Improvement Act (“CPSIA”). Although the new legislation does not address all of the concerns with the CPSIA, it attempts to provide some needed relief before the looming August 14th deadline regarding lead content. In just one day, H.R. 2715 was introduced, passed the House under suspension of the rules (421 yeas, 2 nays), and was sent to the Senate where it was passed by Unanimous Consent. President Obama is expected to sign the bill.

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The Consumer Product Safety Commission ("CPSC") has hired Andrew Kameros as Assistant Executive Director of Compliance and Field Operation, the office that oversees product safety recalls and plays a significant role in rulemaking and enforcement proceedings.  Prior to joining the CPSC, Mr. Kameros was General Counsel and Director of Compliance at the lobbying firm Cassidy and Associates.  He helped clients develop ethics, disclosure and compliance programs and systems regarding lobbying activities.

Mr. Kameros joined Cassidy after nineteen years as a federal prosecutor with the U.S. Department of Justice, dealing with a range of cases including financial fraud, tax issues, and white collar crimes.  During his last four years at Justice he served as an assistant chief, supervising a staff of twenty prosecutors.  He obtained his undergraduate degree from Colgate University in 1982 and his law degree from American University in 1985.  Jay Howell had been the acting head of Compliance and will continue as the head of CPSC's Hazard Identification and Reduction.

Companies that regularly appear before the CPSC should watch carefully as Mr. Kameros begins to leave his mark on the agency.

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On June 20, 2011, the Canada Consumer Product Safety Act (“CCPSA”) became effective, imposing incident reporting, testing, recall, and recordkeeping requirements on entities that manufacture, import, or sell consumer products in Canada. As previously noted, many of Canada’s new requirements may be more stringent than current U.S. consumer product safety laws, especially with regard to reporting and recordkeeping requirements.

Entities that manufacture, import, or sell products in Canada should ensure that they have created policies and procedures for detecting, reporting, and maintaining records for consumer product safety issues that comply with Canadian laws. The implementation of new requirements since January 2011 under U.S., Canadian, and other countries’ (e.g., Australia) consumer product safety laws makes it critical for entities to implement systems that will help them comply with the various new requirements and quickly implement corrective action plans.

Click here for more detail regarding Canada's broad consumer reporting and recordkeeping requirements.

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Last Thursday, Republican and Democrat members of the U.S. House of Representatives expressed some desire to modify the Consumer Product Safety Improvement Act ("CPSIA"). The House Committee on Energy and Commerce, Subcommittee on Commerce, Manufacturing, and Trade, which is now chaired by Rep. Mary Bono Mack (R-CA), held its first hearing and heard from CPSC Chairman Inez Tenenbaum and Commissioner Anne Northup. Our Government Relations and Public Policy group covered the hearing.

Chairman Bono Mack opened the hearing by describing her plan to focus on getting the economy back on track and bringing jobs back to America, starting with looking at problematic provisions of the CPSIA. Even Rep. John Dingell (D-MI), who has a long history of involvement in product safety laws, suggested that CPSC regulations requiring third-party safety testing of all children's products were too broad and should be revised.

Much of the discussion focused on the consumer incident database, which is scheduled to launch in March. CPSC Chairman Tenenbaum and Commissioner Northup had differing views on several aspects of the database, including its cost, whether a cost-benefit analysis is appropriate, and whether the database collects sufficient information for a manufacturer to conduct a meaningful review.

Opponents of the database made some progress early Saturday morning as the House passed an amendment to an appropriations bill that would strip financing for the database. Manufacturers and importers should continue to watch closely as this dialogue continues.

This post was written by Christie L. Grymes and Michael P. McGinn.

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The Consumer Product Safety Commission (“CPSC” or "Commission") has voted 4-1 to extend the stay of enforcement for third-party, lead-content testing on certain children’s products until December 31, 2011. Section 102 of the Consumer Product Safety Improvement Act (“CPSIA”) requires manufacturers, importers, and private labelers of children’s products to have a third party test and certify that the product complies with the CPSIA’s lead-content limits. The stay extension does not excuse entities from complying with the underlying lead-limit regulations; rather, it gives entities more time to comply with the third-party testing requirements.

The extension will also give the CPSC more time to promulgate rules, which were proposed in May 2010, regarding component part testing and general testing and certification requirements. The proposed component part testing rule would set forth conditions under which the Commission would accept the test results of component parts instead of the entire consumer product, while the proposed general testing and certification rule would promulgate specific requirements for third-party testing and certification, as well as create product labeling standards to indicate that a consumer product meets the applicable certification requirements.
 

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In preparation for the Consumer Product Safety Commission’s (“CPSC”) launch of the Publicly-Available Consumer Product Safety Information Database (“Database”), the CPSC held two conferences, on January 11 and 20, 2011, to demonstrate specific aspects of the Database. The conferences provided information regarding how to submit reports of harm, how manufacturers and private labelers may register on the Database, how entities may submit comments regarding reports of harm, and general information about the Database’s structure and search capabilities.

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The Consumer Product Safety Commission ("CPSC") will hold two conferences in January 2011, regarding the Publicly Available Consumer Product Safety Information Database ("Database"). At the conferences, the CPSC will demonstrate key database features, such as the incident reporting form, industry registration and comment features, and search functions of the Database. Interested parties may participate in the conferences in person or over the Internet.

The conferences will be held:

January 11, 2011, 10:30 am to 12:30 pm--Consumer Focus: This conference will demonstrate how to file a report and search the Database. Interested parties must register at https://www3.gotomeeting.com/register/757140102.

January 20, 2011, 10:30 am to 12:30 pm--Industry Focus: This conference will focus on report filing, search functions of the database, and the manufacturer registration and comment features. Manufacturer and private labeler representatives will be able to register for an account with the Database during this conference. Interested parties must register to attend the conference at https://www3.gotomeeting.com/register/396775014.

More information regarding the CPSC's conferences is available at http://www.cpsc.gov/calendar.html.  Key aspects of the CPSC's Database were covered in our December 10, 2010 post.  
 

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Entities that manufacture, import, or sell products in the U.S., Canada, and Australia should be aware of new product safety laws that become effective in 2011. Many of the new requirements are more stringent than current U.S. consumer product safety laws and will directly impact the procedures U.S. companies apply to coordinate their reporting obligations.

• Both the Canadian and Australian laws include broad mandatory incident reporting requirements for incidents involving consumer products. For example, the Canadian law’s requirements, in conjunction with regulations proposed by Canadian consumer protection agencies, may require reporting of all incidents involving consumer products, not just incidents that indicate that the product has a defect which presents a substantial product hazard—the standard under U.S. consumer product safety laws.
• The Canadian and Australian laws also provide consumer protection agencies in those countries the authority to conduct mandatory recalls.
• The new laws include strong penalty provisions for noncompliance, including civil penalties and, in Canada, criminal penalties for violations.
• Additionally, Canada’s law contains provisions banning products that pose an unreasonable danger to human health or safety from manufacture, import, and sale; allowing Canadian consumer protection authorities to order testing or studies demonstrating compliance with consumer product safety laws; and setting forth significant recordkeeping requirements that are not consistent with U.S. and Australian law.

Australia’s law became effective on January 1, 2011 and Canada’s law is expected to become effective in the second quarter of 2011. More information regarding the new requirements can be found in Kelley Drye and Warren’s January 5, 2011 client advisory.
 

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After much anticipation, the Canada Consumer Product Safety Act (“CCPSA”) has finally been passed by the Canadian Parliament and could become effective within the next few months. Upon Royal Assent and Proclamation, which have been accelerated, the legislation will come into force, although an exact time frame has not yet been disclosed.

• The new legislation will replace the Hazardous Products Act and includes numerous new provisions, such as:
• Ability for the government to order a recall rather than just request one;
• Requirement that industry report serious incidents or deaths related to consumer products and provide timely information about important product safety issues;
• Requirement that manufacturers or importers provide test results on products when requested;
• Increased civil penalties for non-compliance; and
• Extensive recordkeeping requirements.

Although the legislation was intended to be fairly consistent with U.S. law, companies will inevitably face different approaches as the legislation gets implemented. Consumer product companies doing business in Canada should consider how they may need to revise existing safety review procedures to ensure compliance with Canadian law.
 

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As discussed in the November 28, 2010 blog post, the CPSC recently approved the structure for a consumer incident database mandated by the 2008 Consumer Product Safety Improvement Act. The database will allow consumers to submit reports regarding harm or potential harm caused by consumer products, allow consumers to search for complaints and recall information about consumer products, and permit manufacturers to comment on complaint information found in the database. The new database will be available on the CPSC's website in March 2011. More information about the CPSC's final rule and structure of the database is available in Kelley Drye and Warren's December 9, 2010 client advisory.

The CPSC's final rule will become effective 30 days after its publication in the Federal Register. In the meantime, manufacturers and private labelers of consumer products should develop internal procedures for handling reports and the related potential product liability consequences.
 

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After intense debate, the day before Thanksgiving the Consumer Product Safety Commission ("CPSC") approved by a vote of 3-2 the structure for the consumer incident database mandated by the 2008 Consumer Product Safety Improvement Act.  Two of the most controversial provisions include (1) defining "consumers" and "public safety entities" who can post reports of harm or potential harm and (2) handling reports that the manufacturer has challenged as inaccurate.

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Further to our post earlier in the week, the Consumer Product Safety Commission's new final interpretative rule defining "children's product" is published in today's Federal Register, making the new rule effective immediately.

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The Consumer Product Safety Commission (“CPSC” or “Commission”) recently voted 3 to 2 to approve a final interpretive rule for the term “children’s products,” as that term is used in the Consumer Product Safety Improvement Act of 2008 (“CPSIA”). Given the wide range of products that could be covered by that term and the significant consequences if they are covered, manufacturers, distributors, and retailers had been anxiously awaiting guidance from the Commission. Many of those entities, however, may not have received the specific, bright line guidance they were seeking. The final rule is available on the CPSC’s website and becomes effective immediately upon its publication in the Federal Register.

For more details on the definition of "children's product" and an overview of the new interpretive rule, see the Kelley Drye client advisory.

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As children's product manufacturers and retailers have wondered whether the Consumer Product Safety Commission would take action specific to cadmium, California's Gov. Schwarzenegger has signed legislation that restricts cadmium levels in children's jewelry, following similar legislation in Connecticut, Illinois, and Minnesota.  The new California law prohibits manufacturing, shipping, or selling jewelry or jewelry components that contains more than 0.03 percent cadmium by weight starting January 1, 2012.  Cadmium can harm kidneys and bones and cause cancer.

With California now on the list, the ban could effectively become nationwide for manufacturers, distributors, and retailers of children’s jewelry that do not have (or do not want) state-specific distribution systems.  Such companies should review current practices to ensure compliance.

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Since the Consumer Product Safety Commission ("CPSC") began issuing its own import detention notices in June, some companies have struggled to obtain the release of detained products, particularly to determine the process the CPSC would follow and minimize the detention period.  The CPSC has now issued frequently asked questions ("FAQs") to help companies navigate the process.  Historically, Customs and Border Protection ("CBP") had issued notices for potential CPSC violations, so CPSC hopes to eliminate CBP as the middleman.

CPSC will send a detention notice to the importer of record, broker, and CBP, typically by e-mail.  If CBP has also detained the product, those issues will be resolved first.  CPSC will only detain products described in the notice, so the importer or broker should contact CBP to obtain the release of other products in the shipment.  Conditional release or exportation of products is also possible on a case-by-case basis.  Detention notices are not subject to protest, but companies will have five days to submit information supporting admissibility of the product and can request an administrative hearing.  CPSC will try to make admissibility decisions within 30 days of detention.

Given these new procedures, importers of consumer products should be in close contact with their brokers and respond quickly to detention notices.  Companies may also take a proactive approach by working with the CPSC compliance officer at CPSC headquarters to facilitate communications with the CPSC representative at the relevant port.

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The Consumer Product Safety Commission has announced proposed rules regarding the requirements for a “reasonable testing program” and other certification testing and the requirements for component part testing pursuant to the Consumer Product Safety Improvement Act. Domestic manufacturers and importers of children’s products and other products subject to a CPSC regulation or ban should track the development of the proposed rules and may consider incorporating some of the provisions now, in anticipation of a final rule.

Please view the Kelley Drye client advisory for more details regarding the "15 Month Rule" and component parts testing.

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This post was written by Megan L. Olsen and Christie L. Grymes.

On March 31, 2010, the U.S. Consumer Product Safety Commission (CPSC) announced a Final Rule that identifies and interprets factors the CPSC will consider when seeking civil penalties for knowing violations of the Consumer Product Safety Act (CPSA), Federal Hazardous Substances Act (FHSA), and Flammable Fabrics Act (FFA). As required by section 217(b)(2) of the U.S. Consumer Product Safety Improvement Act (CPSIA), this rule “provides the Commission’s interpretation of the civil penalty factors found in” section 20(b) of the CPSA, section 5(c)(3) of the FHSA, and section 5(e)(2) of the FFA. The Commission voted 4-1 to approve the Final Rule as amended. Chairman Tenenbaum and Commissioners Nord, Adler, and Moore voted to approve the Final Rule as amended, and Commissioner Northup voted not to approve the Final Rule.

This Final Rule has particular significance because the CPSIA expanded the actions subject to civil penalties, and increased the maximum civil penalty amounts from $8,000 to $100,000 for each “knowing” violation and from $1.825 million to $15 million for any related series of violations. The statutory factors the Commission must consider include: the nature, circumstances, extent and gravity of the violation, including the nature of the product defect or of the substance; the severity of the risk of injury; the occurrence or absence of injury; the number of defective products distributed or the amount of substance distributed; the appropriateness of the penalty in relation to the size of the business, including how to mitigate undue adverse economic impacts on small businesses; and such other factors as appropriate. The Final Rule provides the Commission’s interpretation of those statutory factors and identifies four additional factors: (1) safety/compliance program and/or system relating to a violation; (2) history of noncompliance; (3) economic gain from noncompliance; and (4) failure to respond in a timely and complete fashion to the Commission’s requests for information or remedial action. The Commission declined to consider the relative complexity of identifying and confirming the presence of a defect in a product.

In light of this Final Rule and the new civil penalty cap of $15 million, a company should take the opportunity now to review all aspects of its current product safety practices, including product development, vendor requirements, compliance with the conformity certificate and other technical requirements of the CPSIA, and how the company interfaces with the Commission. Such proactive steps now could drastically improve the company’s position in the event of a civil penalty investigation later. More information on the Final Rule and civil penalty factors can be found in Kelley Drye & Warren’s April 1, 2010 client advisory.

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This post was written by Megan L. Olsen and Christie L. Grymes.

On March 2, 2010, the Consumer Product Safety Commission (“CPSC” or “Commission”) announced a settlement agreement with Daiso Holding USA Inc., Daiso Seattle LLC, Daiso California LLC, and one of the companies’ officers (collectively, “Daiso”). The consent decree, filed by the Department of Justice on behalf of the CPSC, requires Daiso to pay a $2.05 million civil penalty and prohibits the company from importing, selling, or distributing children’s products and toys in the United States unless Daiso satisfies numerous requirements regarding product evaluation and incident review. The CPSC alleges that Daiso violated the Consumer Product Safety Act (“CPSA”), the Federal Hazardous Substances Act (“FHSA”), and the Consumer Product Safety Improvement Act (“CPSIA”) by importing, distributing, and selling toys with illegal levels of lead, lead paint, and phthalates, toys that had small parts intended for children younger than three years old, and products that lacked required warning labels.

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Late Friday the Consumer Product Safety Commission ("Commission" or  "CPSC") sent to Congress a report with recommendations for improving the Consumer Product Safety Improvement Act ("CPSIA"):

• Provide greater flexibility in granting exclusions from Section 101(a) of the CPSIA.  The CPSA has already tried to reduce any unduly burdensome effects of Section 101(a) where Congress may not have intended to include certain products within the scope of the lead content limits, but needs additional flexibility to grant exclusions for certain products, inicluding youth ATVs and bicycles, sporting equipment, and ordinary books.
• Exclude ordinary children's books and other children's paper-based printed materials.  Although the Commission has provided some relief for newer ordinary children's books, the staff has determined that some books printed before 1985 contain highly illustrated pages with lead content above the strict lead ban.  Congress may not have intended for the CPSIA to cover those books.
• Apply the 100 ppm Lead Content Limits Prospectively Only, Not Retroactively.  Based on the CPSC's experience implementing the lead content limits retroactively, market disruption may occur if the 100 ppm lead content limits are applied retroactively.  The new tracking label requirements will help to ensure that products manufactured after the 100 ppm deadline becomes effective are compliant.
• Address Concerns of Low-Volume Manufacturers.  The Commission will continue to consider the concerns of small manufacturers and crafters as it develops the mandatory rule on testing and certification.  The Commission stated that it remains committed to working with Congress to explore other ways to reduce the burdens on those entities, but offered no specific recommendation to Congress.

Chairman Tenenbaum and Commissioners Nord, Adler, and Northup issued individual statements in connection with the report.  The Commission prepared the report in response to a request from the House and Senate Appropriates Committees, the House Energy and Commerce Committee, and the Senate Commerce, Science, and Transportation Committee.

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On December 28, 2009, the Consumer Product Safety Commission (“CPSC” or “Commission”) issued a notice extending the stay of enforcement on lead-content testing and certification of certain children’s products pursuant to Section 102 of the Consumer Product Safety Improvement Act (“CPSIA”). The stay is for an additional year, to February 10, 2011^[1]. Chairman Inez Tenenbaum said in a statement, “The extension of the stay was needed in order to give the agency more time to promulgate rules important to the continued implementation of the CPSIA and for the agency to educate our stakeholders on the requirements of those new rules.” Although the Commission approved an extended stay on testing and certification for certain products, all products must continue to comply with applicable standards and bans.

Section 102 of the CPSIA and the CPSC’s related rule require every domestic manufacturer or importer of consumer products subject to any product safety rule under the CPSIA or similar rule, ban, standard, or regulation under any act enforced by the CPSC – and (1) imported for consumption and warehousing or (2) distributed in commerce – to issue certificates of conformity with the applicable standards. Those certificates must accompany all shipments of such products and be furnished to each distributor and retailer of the product. On February 9, 2009, the Commission announced a stay of enforcement for certain products that would remain in effect until February 10, 2010, when the Commission would vote on whether to terminate the stay. The stay only applied to the testing and certification requirements – the applicable mandatory safety requirements, such as the reduction in lead content and phthalates, continued to apply.

Since issuance of the stay, the Commission issued more than 20 Federal Register notices, statements of policy, guidance documents, proposed rules, interim final rules, and final rules pertaining to the CPSIA, and most of those documents related to testing and certification issues. Given that flurry of activity and the need for additional rulemaking and lab accreditation, the Commission in December announced the following phased-in approach of the testing and certification requirements.

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