The Consumer Product Safety Commission has issued a one year “Stay on Enforcement” for the submission of “Testing and Certification” of compliance with the new lead and phthalates laws. The CPSC will not require Testing and Certification on products until February 10, 2010.

The new law was set to take effect February 10th. At the same time, however, the products must still be “safe,” as per the Act's requirements, starting on February 10, 2009.

“Manufacturers and importers 'large and small' of children's products will not need to test or certify to these new requirements, but will need to meet the lead and phthalates limits, mandatory toy standards and other requirements,” said a CPSC statement issued Friday. In other words, if any products were found that violate the regulations, there would still be liability concerns and the fines dictated by the Act would still apply.

The CPSC says the stay will give the staff more time to finalize four proposed rules which could relieve certain materials and products from  testing and to issue more guidance on when testing is required and how it is to be conducted.

Specifically the new CPSC position is to delay for one year enforcement of new requirements of paragraphs 14(a)(1), (2), and (3) of the Consumer Product Safety Act (“CPSA”), which were added or modified by Section 102 of the Consumer Product Safety Improvement Act (CPSIA) “that require testing and issuance of certificates of compliance by manufacturers, including importers, of products subject to an applicable consumer product safety rule as defined in the CPSA or similar rule, ban, standard, or regulation under any other Act enforced by the Commission.” 

According to the SGMA, manufacturers on the flip side need to understand that this does not resolve the lead and phthalates issues for several reasons:

1.    Compliance with new lead standards will still be required on February 10, 2009 as the CPSC has only suspended “testing & certification;”
2.    Manufacturers who sell non-compliant products to retailers or retailers who sell non-compliant products to consumers can still be held liable for violation of consumer product safety laws;
3.    Retailers could still request proof that a product is in compliance which will require a test, so manufacturers are not completely off the hook.   
4.    Any change to the effective date of the new requirements on lead and phthalates would require an act of Congress.  So far, Congress has not taken any action on this. 
5.    Only Congress can address the retroactive enforcement of the new lead standards.
6.    State Attorney Generals are not bound to accept the CPSC stay and can enforce law at their discretion.

This is a positive development, but it is far from a solution to the problems the industry faces, the trade group said. 

SGMA said in a statement, “It's important to note that the stay does not affect any of the substantive requirements set by the CPSIA.  All children's products must still comply with all applicable children's product safety rules, including, but not limited to, the upcoming limits on lead and phthalates in the CPSIA.  In other words, though manufacturers and importers do not need to test or certify that products meet total lead content limits for children's products (600 ppm) or phthalates limits for children's toys and child care articles (0.1%), the products still must meet those standards.  Manufacturers who distribute and retailers who sell products in violation of the lead or phthalate limits may still be subject to civil fines and criminal penalties.”

SGMA noted that the stay also does not apply to:
*    Testing and certification that was required by subsection 14(a) of the CPSA prior to enactment of the CPSIA;
*    Those requirements, when they become effective, applicable to children's product certification required to be supported by third party testing for which the Commission has issued requirements for acceptance of accreditation of third-party testing laboratories to test for:
    o    Lead paint (effective for products manufactured after December 21, 2008);
    o    Full-size and non-full size cribs and pacifiers (effective for products manufactured after January 20, 2009);
    o    Small parts (effective for products manufactured after February 15, 2009);
    o    Metal components of children's metal jewelry (effective for products manufactured after March 23, 2009);
*    Any and all certifications expressly required by CPSC regulations;
*    The certification required due to certain requirements of the Virginia Graeme Baker Pool & Spa Safety Act;
*    The certifications of compliance required for ATVs;
*    Any voluntary guarantees provided for in the Flammable Fabrics Act

The Commission issued the stay as an attempt to ease current burdens on the Commission and on the business community.  The Commission is overwhelmed by the number of questions concerning these requirements, the short deadlines imposed by the CPSIA, and the significantly under-funded budget.  The Commission also hopes that the stay will ease some of the potential problems for small businesses and many of the current testing requirements.  The Commission realizes that testing is a highly technical area that involves much more study and research than was afforded to them by the CPSIA deadlines.   

“The sporting goods industry needs to keep the pressure on Congress to take the appropriate action on retroactive enforcement of new lead laws and application of phthalate laws on sporting goods,” said Bill Sells, SGMA's vice president of government relations.