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.
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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