CPSC New Ruling
What you need to do to remain competive.CPSC Staff Provides Further Information on New Certification Requirements; No
Exemption for Mattresses
The Consumer Product Safety Commission (CPSC) held a public meeting yesterday to
elaborate on a number of requirements contained in the Consumer Product Safety
Improvement Act, which became law this past August (the 2008 Act), including the new
product certification requirement that we have discussed in recent memos and BedTimes
Bulletins.
ISPA had discussions with CPSC staff requesting that the agency exempt mattresses from
this requirement, given that the same information required to be included on the new
certification is either already contained on the federal product label required by 16 CFR
Part 1633 or is available upon request by the CPSC from the manufacturer or importer.
During yesterday's meeting, however, the CPSC indicated that it would not grant such an
exemption.
This BedTimes Bulletin Special Edition summarizes the current views of the CPSC staff
on topics covered at the meeting that are relevant to the mattress industry, and may not
reflect the formal position of the CPSC Commissioners themselves. We urge members to
consult with legal counsel and other experts in the product safety field regarding exactly
how these new requirements will affect their individual businesses.
Certification Requirements Effective for Products Made After November 12, 2008
As previously reported, the 2008 Act requires that as of November 12, 2008, each
manufacturer, importer, and private labeler of products subject to CPSC safety
standards (including mattresses) issue a certificate of compliance that accompanies
each shipment of regulated products and is furnished to the distributors or retailers
of those products. A copy of the certificate must also be available upon request by either
CPSC or (in the case of imports) Customs.
As for the effective date, the CPSC confirmed that the November 12, 2008 deadline relates to the date of manufacture regardless of whether the product is made in the United
States or imported. However, CPSC noted that if goods imported several months after the
November 12 deadline still are not accompanied by a certificate, the importer may have
the burden of proving that the products in question were made before November 12.
What Must the Certificate Contain?
In terms of document format, the CPSC announced that it has prepared and will soon
release to the public a sample certification form that certifiers may use (but are not
necessarily required to use). We will forward that form to members once it becomes
available.
Meanwhile, CPSC stated that the certification must state that, based on a reasonable
testing program, the product meets all applicable CPSC safety standards. Tracking the
new requirements in the 2008 Act, the sample certification form will request the
following information:
• A description of the product that can be matched to the product shipped
• A list of each CPSC standard that applies to that product (i.e., Parts 1632 and 1633 for
mattresses and mattress/foundation sets; other standards may apply for other products,
such as cribs, etc.)
• Name, full mailing address and telephone number of the manufacturer (applies to
foreign manufacturer if relevant)
• Name, full mailing address and telephone number of the U.S. importer (if relevant)
• Name, full mailing address and telephone number of the private labeler (if relevant)
• Contact information for the individual that retains the test records, including email
• Date on which the product was manufactured (at least the month and year)
• City and country of manufacture. If multiple facilities produce in the same city, a
designation to identify the specific facility
• Date on which the product was tested or certified
• If testing was performed by a third party test lab, the contact information for the test
facility
The certification content must be written in English, although it may also be presented in
a different language. The CPSC stated that the above certification must include all of the
above information, regardless of whether some of it is already on the product or
accompanying labels or materials (such as the federal mattress label required by Part
1633).
Who Must Issue the Certifications?
At the meeting, the CPSC recognized that in many cases, several parties in the chain of
distribution may need to issue a certification. For example, if a given product is made by
a foreign manufacturer, imported into the United States and sold by a private labeler, then
the manufacturer, the importer and the private labeler must each meet the certification
requirements. Nevertheless, the CPSC will allow all of the requisite parties to include
their certifications on the same document, although individual certifications will also be
allowed. The CPSC may issue clarification allowing only one party to certify, although
this is not likely before the effective date. Testing laboratories may not issue a
certification.
How is the Certificate Delivered?
The CPSC also emphasized that the certificate must both accompany the shipment and be
furnished to the distributors and retailers. Although the certification may also be provided
to the consumer, this is not required. As a result, it is not necessary to permanently attach
the certificate to each individual product, although this is not prohibited.
The certificate may be in paper form (either on a separate piece of paper or as part of
other typical shipping documents such as the bill of lading), or can be placed directly on
the product or on the product package or shipping container. Although a separate
certificate may be provided with each individual product in a shipment, a single
certificate can be used for multiple units of the same product in a given shipment.
The 2008 Act authorizes CPSC to issue regulations allowing for copies of the certificate
to be provided electronically to Customs, but cautioned that the Commission will likely
not be able to issue such a regulation for a year or more. A meeting participant asked
about whether a manufacturer could issue the certificate electronically to the distributors
and retailers. CPSC responded that electronic delivery would meet the “furnished”
requirement, but was uncertain whether it would also satisfy the requirement that the
certificate “accompany” the shipment. CPSC will consider this issue further.
The CPSC also stated that when a product is sold by multiple stores owned by the same
retailer, the certificate can be delivered to a centralized location, provided that each of the
stores
(1) can access that data base easily upon request by CPSC or Customs and (2) is
aware of the process for accessing the data.
Furthermore, as we have reported previously, a manufacturer, importer, or private labeler
that sells directly to consumers either by mail order, telephone, or through the internet
will not be required to provide certifications for those sales.
What is a Reasonable Testing Program?
The certification must state that, based on a reasonable testing program, the product
meets all applicable CPSC safety standards. The issuer of the certificate has the discretion
to decide on the type and frequency of the tests to be performed. In response to a
question, CPSC officials indicated that if the Commission later disagrees with the testing
program chosen by the manufacturer, that action would not invalidate previously issued
certifications. The CPSC may clarify what constitutes “a reasonable testing program” in
the future.
Nevertheless, the CPSC noted that the testing need referenced on the certificate need not
necessarily be to the exact test method specified in the applicable standard. In fact, under
some circumstances, it might be appropriate for the certifier to base its statement on a
more stringent test. CPSC noted that most important factor is that the test used should be
sufficiently stringent to detect product variations.
What are the Consequences for Not Providing a Proper Certification?
Parties that either fail to provide the required certification or provide a false certification
can be subject to both civil and criminal penalties. CPSC noted, however, that in the
months immediately following the effective date for the certification requirement, the
CPSC will be focused mostly on good faith efforts to comply with the new rules, and not
on issuing penalties for technical violations.
CPSC staff noted that the potential financial risks for an importers failure to meet the
certification requirements can be significant. Although the 2008 Act imposes no
obligation on the importer to file the certification with Customs, Customs has the
authority to request a copy of the certificate and to inspect any product shipment. If the
importer does not provide the requested certificate or Customs determines that there is no
certificate accompanying a given shipment, the new law provides that Customs shall
refuse entry of the goods and order that they be destroyed, with the owner or consignee of
the goods paying the cost of destruction. The Department of the Treasury has authority
under exceptional circumstances to allow the uncertified goods to be re-exported.
What Duties Do Distributors and Retailers Have Regarding the Certificates?
The 2008 Act does not require the distributor or retailer either to reject uncertified goods
or to retain in their files the certificates they do receive from the manufacturer, importer
or private labeler. However, CPSC indicated that it might in the future issue regulations
requiring that they be retained for a period of time. CPSC also noted that under other
similar provisions, CPSC requires that importers and manufacturers maintain certain
categories of records for at least three years following importation, and suggested that
this might be a prudent practice for parties to follow at this time.
CPSC also noted that distributors and retailers may have a strong incentive to require and
maintain these certificates in the event that CPSC later finds that certain products sold by
the distributor or retailer do not meet an applicable CPSC standard. A distributor or
retailer can defend itself from CPSC liability for unknowingly selling such non-compliant
product by showing that it received a valid certificate for that product.
* * *
Obviously, this requirement imposes significant new compliance obligations on the
mattress industry. Furthermore, many questions regarding the details of this requirement
remain unresolved. This is an evolving subject, with CPSC continuing to announce
further interpretations of its new duties. ISPA will be working with the CPSC and other
trade groups in an effort to resolve outstanding issues, to respond to member questions
and to keep you abreast of developments.
Past Rulings
Some of the past interpretations of law exacting valuable resources from small manufacturers. 2004 CPSC Report
Objectives of Law and Results
It might be said that the CPSC is now creating rulings to perpetuate its own existence. Final finding leading up to 1633
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