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If You Direct Import Children’s Products, Read This!

Guest Blog by Quin D. Dodd, Esq.

Once upon a time the U.S. Consumer Product Safety Commission (CPSC) was a rather quiet federal regulatory agency, tucked away in the Washington suburb of Bethesda, Maryland.  Then came 2007, dubbed “The Year of the Recall,” with lead-contaminated toys from China grabbing weekly headlines.  Congress reacted by passing the most sweeping reforms to the laws governing the safety of children’s products since the inception of the agency—the Consumer Product Safety Improvement Act of 2008 (CPSIA).

In addition to imposing strict new limits for lead, phthalates and durable nursery products, among others, the CPSIA culminated on February 8, 2013 into what has been called “The Mother of all CPSC Regulations”— the Testing and Certification Rule (or “1107 Rule,” codified at 16 CFR 1107).  This rule sets forth very specific testing, record keeping and other requirements for U.S. importers and domestic manufacturers of children’s products – any product “primarily intended” for children 12 years old and younger.  In a nutshell, this rule requires that U.S. importers and domestic manufacturers of children’s products:

  • Order CPSC-approved lab testing and certify that those products meet all applicable CPSC standards, including documenting and appropriately responding to any sample failure;
  • Undertake additional testing of the product after certification and during manufacture of the product (how frequently is unspecified but must impart a “high degree of assurance” that all products meet all CPSC standards);
  • Monitor and document any “material change” to the product that could affect compliance with standards; and
  • Implement company policies and employee training to prevent any attempts at “undue influence” over test labs (effectively, any attempts to skew test results).

The 1107 Rule presents a unique challenge for U.S. retailers who direct-import children’s products:  they just buy and import the products; they don’t make them.  Short of opening an office in every overseas factory from which they source, how are direct-import retailers in the U.S. supposed to ensure that all these requirements are met?

The answer lies in two additional CPSC-regulations recently passed:

1.              Component Part Testing (“1109”) Rule.  This regulation allows the U.S. importer to rely on a certificate from an overseas supplier to, in turn, issue the CPSC-mandated product certificate prior to importation, so long as “due care” is exercised to ensure that the supplier did what is required of them under the 1107 Rule.  Cutting through the regulatory jargon, this means that the U.S. importer should require the overseas supplier provide proof that they undertook all the necessary activities and obtained all the necessary documentation under the 1107 Rule.

2.              HDXRF and Other “Alternative” Test Methods.  As stated, the 1107 Rule requires some testing during actual manufacture of children’s products, in addition to that for certification.  That testing, however, can be either via a third-party lab (“periodic testing”) or on-site factory (“production”) testing.   Regardless of which avenue the U.S. retailer  or supplier may choose, on February 20, 2013, the CPSC for the first time allowed High Definition X-ray Fluorescence (HDXRF) to be used for both lead paint AND substrate (content) testing.  Unlike traditional “wet chemistry,” HDXRF technology is non-destructive and available for use in both portable and benchtop instruments, making it easy to use in either a lab or factory setting. Since lead is the number one source of seizures at U.S. ports,  HDXRF represents a major cost-saving opportunity for either periodic or production testing under the 1107 Rule for both suppliers and U.S. importer-retailers.

The 1107 Rule, while complex and not necessarily a fun read, is manageable.  Just make sure you deal with it now, before the CPSC asks you why, as an importer of record, you failed to do so.

Quin Dodd is a Washington, DC attorney practicing exclusively in the area of product safety law, and formerly served as Chief of Staff of the CPSC from 2006 to 2008.  He may be reached at:  quin@quindoddlaw.com. 

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