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Consumer Product Safety Improvement Act Signed Into Law

September 02, 2008


Last month, President George W. Bush signed into law the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), the most sweeping consumer product safety law enacted in the United States in over 30 years. Passed by strong majorities in both the House and the Senate, CPSIA significantly expands government monitoring and enforcement authority at the federal and state levels and imposes many new product safety restrictions on businesses. While many of the key provisions will not become effective for several months, it is not too soon to identify the many ways in which the new law will affect consumer product manufacturers, importers, distributors and retailers.

Stronger Government Enforcement and Stiffer Penalties

The strongest indication that Congress intends CPSIA to be an unprecedented expansion of product safety enforcement activity is the new law’s drastic increase in Consumer Product Safety Commission (“CPSC”) funding. Under the CPSIA, CPSC funding is expected to more than double in the next six years, allowing the CPSC to add more employees and increase enforcement activity. The CPSIA also expands independent, state-level enforcement activity. State Attorneys General have new authority under CPSIA to initiate injunctive legal actions in federal courts relating to product safety. The CPSIA will also bring much stiffer penalties for violations of both pre-existing and new requirements. Civil penalties, for example, are to be increased over tenfold, to $100,000 per violation, and the overall cap on penalties will increase to $15 million.

New Restrictions on Children’s Products

CPSIA focuses heavily on products for or related to children and imposes an array of new requirements on businesses dealing in these products.

Definitions and Adoption of ASTM F963-07

CPSIA redefines the legal meaning of “children’s products,” “child care articles,” and “toys” to cover virtually all products designed for use by children 12 years old and younger, as well as all
products designed to “facilitate sleep or the feeding of children age 3 and younger, or to help such children with sucking or teething.” It also requires that industry standard ASTM F963-07, also known as the “Standard Consumer Safety Specification for Toy Safety,” will become the formally-adopted CPSC product safety rule on February 10, 2009.

Lead and Phthalate Restrictions

CPSIA mandates that lead content in children’s products and toys be reduced to:

  • No more than 600 parts per million by February 10, 2009; 
  • No more than 300 parts per million by August 14, 2009; and
  • No more than 100 parts per million by August 14, 2011.

Separately, lead paint content must be reduced from no more than 0.06 percent to 0.009 percent by August 14, 2009. While components that are not accessible to children are exempt from these requirements, other limits on lead and lead paint content for these parts may yet follow.

Phthalates, too, are heavily restricted for use in toys and child care articles under the new law. As of February 10, 2009, certain phthalate substances must constitute no more than 0.1 percent of such products.

Choking Hazards and Product Registration

CPSIA also imposes new rules for cautionary statements relating to choking hazards. Websites and printed catalogs that provide a direct means of purchasing must include warning statements by December 12, 2008, and February 10, 2009, respectively. Separately, manufacturers of “durable nursery products” such as cribs, high chairs, and strollers must now take additional steps such as including postage-paid product registration cards that will enable better dissemination of recall and safety information. Manufacturers of children’s products will also be required to use tracking labels on products as of August 14, 2009.

Rules Promulgation and Testing Requirements

New testing requirements will soon become operative after the CPSC issues new accreditation and testing standards for certain product categories. Manufacturers must now certify, upon completion of accredited, third-party testing, that all their products comply with all applicable product safety requirements. New requirements for lead paint can be expected by September 13, 2008, for cribs and pacifiers by October 13, 2008, for small parts by November 12, 2008, for children’s metal jewelry by December 12, 2008, for baby bouncers, walkers, and jumpers by March 13, 2009, and for all other children’s products by June 14, 2009.

New Import/Export Rules

The new law’s import/export provisions include selfcertification requirements on businesses importing consumer products subject to any CPSC rule, ban, standard, or regulation, as well as increased cooperation between CPSC and U.S. Customs. Exports of recalled, non-conforming, and/or banned products are also prohibited under CPSIA.

Limited Preemption

CPSIA preserves the basic preemption framework of the original Consumer Product Safety Act but also affords states the opportunity to exempt from preemption some laws adopted at the state level before CPSIA’s enactment and laws governing phthalates not specifically addressed in CPSIA. California’s Proposition 65 and the various California laws that arise from it are not affected by CPSIA.

Conclusion

CPSIA is the most far-reaching consumer protection law enacted in decades. By expanding both federal and state government enforcement power, imposing new restrictions on manufacturers, importers, distributors, and retailers, and increasing penalties, CPSIA has created a long list of new obligations and risks for any business involved in the sale of consumer products.

Godfrey & Kahn will continue to closely monitor the CPSC and its newly ambitious agenda in the weeks and months to come. If you have questions or concerns about how this new law will affect your business, call Josh Johanningmeier at (608) 284-2637 or Adam Briggs at (608) 284-2214.

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