Amended 1/6/2012: Please see the most recent post on this topic for updated information, particularly if you experienced difficulty after complying with these instructions.
This is important stuff. First of all, as much as it pains me to repeat myself, today is not the day to wrangle with semantics or diction. The term "manufacturer" is a legal designation. A Federal Legal Designation. Regardless of how you prefer to describe your business entity, you are a manufacturer even if you pay somebody else to sew things up for you.
Okay, with that out of the way, if you are a manufacturer of children's products and produce in small batches, it is critical that you register for a small batch exemption if your sales are less than 1 million dollars from the previous calender year and you have manufactured less than 7,500 qualifying (children's products) units. Registering for an exemption will exempt you from third party testing requirements under CPSIA. I realize that most apparel products were granted broad exemptions already but this will help you in the event your items include non-exempt components. Another thing to keep in mind is that this is just a testing exemption, you are still required to comply with standards defined under the CPSIA law.
What a minute -if you have no idea what I'm talking about, see the CPSIA category on this site. There is also a publicly accessible CPSIA section in our forum. However, since you have a lot of catching up to do, I suggest you register first (today!) and figure out what it means later.
Those of you producing children's wear should be aware that the stay of enforcement (CPSIA §102(a)) will be expiring on February 10th. A broad coalition of children's products producers have signed on to a letter submitted by NAM (National Assoc of Manufacturers) to the CPSC, requesting an extension for very valid reasons (pdf). Minimally, the agency has failed to finalize testing requirements (the so called "15 month rule"). I know, I know, you think I'm crazy because it can't be possible that the CPSC expects manufacturers to comply with requirements they have yet to define -but they can. Yes indeedy!
Please act now by sending a message to the CPSC, requesting an extension of the stay of enforcement until the agency can finalize the "15 month rule". The AAFA has set up an automated mailer here. Please act now. Consider adding your support even if you don't produce children's products or are a consumer. If the stay is not extended, we will lose incalculable numbers of small artisan producers of children's clothing and toys so there won't be much cool stuff to buy anymore. Thank you!
Amended: I think people are clicking on the wrong link to respond. USE THIS ONE.
Children's products producers take note. Your prompt response is required, these surveys will be taken down this weekend.
I rarely do this but here's the cut and paste because it's better than a summary I would write:
The American Apparel and Footwear Association (AAFA) Wants You!
Many have pointed out to the CPSC that the additional testing costs mandated by the CPSIA have been extremely burdensome on companies and have even caused many to either shut down or abandon the children’s product market. [ ] Concrete examples [of] Casualties of the Week are here, here and here.
Some are still not convinced. CPSC Commissioner Adler made the point at a recent CPSC briefing that "anecdotes are not evidence."
The AAFA has been collecting information ("evidence") from companies to see exactly how the testing rules have impacted their businesses. This information is important to help document to CPSC and Congress the economic impact of CPSIA.
To continue gathering data, AAFA recently published two surveys online to gauge the impact of consumer product testing. One survey is for manufacturers, wholesalers and suppliers and the other is for retailers and licensors.
Rick sends important news:
I wanted to let you know that I will be featured as part of a 60 Minutes segment on the Consumer Product Safety Improvement Act of 2008 (CPSIA) phthalates ban. The segment will air this Sunday (May 23) on CBS and is entitled "Are They Safe?". If you miss it, you can watch it later on the 60 Minutes website. This is a very important development in our continuing effort to force change in the CPSIA. 60 Minutes is the number one news program in the world and one of the most watched programs in the United States of any kind.
My interview was filmed last September at Learning Resources' office. I was interviewed by Lesley Stahl for this feature. We have not seen the segment yet (we will see it when you see it) and hesitate to predict what they will say. I believe I was the only businessperson interviewed. The focus of my interview was the "unintended consequences" of the phthalates ban, of which there are many... We are hopeful that 60 Minutes will draw attention to the doubtful and wasteful impact of this law on law-abiding companies like ours.
We had two pieces of good news last week. On December 15th, the CPSC passed (by unanimous vote) an Interim Enforcement Policy (pdf) on Component Testing and Certifications of Children's Products and Other Consumer Products to the August 14, 2009 Lead Limits. This will permit manufacturers to issue GCCs that rely on component testing and/or component testing results provided by component suppliers. Yes, again, we can use supplier provided documentation. However, there's one big caveat; the manufacturer remains responsible (read: liable) for compliance under the CPSIA. In other words, if your products are found to be out of compliance with the law and you used your supplier's testing results, you are liable, not the supplier. Greater due diligence will be required in sourcing your inputs. Be wary of lower cost input suppliers.
On December 17th, the CPSC voted to extend the stay of enforcement on third-party testing under the CPSIA for an additional year. Other than the obvious, it gives the CPSC some more time to issue final rules. Likewise, we still don't have enough labs certified to provide testing services. It is hoped that these two issues among myriad others will be resolved before this current stay of enforcement expires in February of 2011.
It just never ends does it? Four points are important for you to know.
First, the CPSIA product testing workshops are taking place at the CPSC this Thursday and Friday. It will be available by webcast (details) if you're one of the many who could not attend.
Second and most importantly, this from Rick Woldenberg (most emphasis mine):
You may not realize it, but we face a serious crisis right now. Last week, the CPSC held a hearing that discussed the possible extension of the testing and certification stay. The Commission is under pressure to ramp up implementation of the awful CPSIA and this therefore puts the testing stay in peril. Chairman Tenenbaum has heard the concerns of regulated businesses that some advance warning is needed, so Rumorville in forecasting a quick consideration of the question - possibly as early as next week. Commissioner Nancy Nord commented on the implications of the stay in her blog last week. At least one Commissioner, Bob Adler, is openly hostile to continuation of the stay. This is a big deal to companies regulated by the CPSIA.
[...] The Commission's sense of urgency to get this irritant off their plate is creating rumors that they intend to act as soon as the next business day after the workshop. As outrageous as this might seem, it's really worse - the workshop is not about the stay. The workshop is about component testing, frequency of testing, sampling schemes, when to require additional testing, etc. The CPSC has not asked for comments about the lifting of the stay but at least one Commissioner has reasoned that if it was a "big deal", the CPSC might have heard from more than the Handmade Toy Alliance. [Apparently, both Bob Adler and Jay Howell believe that the CPSC has had not heard from anyone other than the HTA on the stay, which is certainly not true.]
If the stay is lifted on two months notice with all these rules open, undrafted or in process, utter chaos will break out...
Late last week, the CPSC released a draft for testing and certification requirements (pdf) under CPSIA. While the developments spelled out therein look promising, be advised this is a draft, not a formal ruling. If you'd care to lend your support to the proposal (recommended), public comments are due by January 11, 2010. Be advised the CPSC is no longer accepting comments via email directly. Instructions for submission appear on page 27 of the pdf. Here are the highlights of this most recent release from the CPSC:
Supplier provided documentation on components
This is the biggie we'd all been hoping for. It seems likely that we will be permitted to use third party testing documentation from our suppliers provided they've used a CPSC sanctioned lab. This is advantageous in two respects.
- If one's component parts are either exempt (most fabrics are) or verified to meet CPSIA standards, the more stringent destructive unit testing won't be required to prove compliance.
- You won't have to pay (directly) for component testing of buttons, grommets and the like. Indirectly you'll pay since you and every other children's product producer will need to source inputs from suppliers who can provide the documentation for the GCC and it's likely those will cost a bit more. And yes, you'll still need the GCC to document your compliance with this modified "reasonable testing program".
More details on the above can be found on page 10 of the document (page 12 of the pdf).
Some CPSIA activists are saying we need an additional year's stay of enforcement because they claim it will take years for component suppliers to perform these tests but most suppliers are already required to do them by their insurers and larger customers. I think the bigger problem will be getting the existing documentation into the hands of those who need it.
Standards relaxed for small companies
I should have been dating these entries all along. Here's the latest, newest first.
The CPSC is conducting a hearing on November 10th regarding the establishment of a Public Consumer Product Safety Incident Database. Requests to present oral comments are due by November 3rd. On one hand, many are leery of the prospect of a database as it is unclear how whistle blowing will be weighted and processed. On the other, some people will use the resource to report vendors who willfully ignore the CPSIA statute and thus enjoy unfair competitive advantages. Like everything else associated with the law, the database is controversial.
The CPSC has released the latest version (pdf) of the statement of policy governing testing and certification of lead content in children's products. It is much the same as before but with three differences:
If you make kid's products and have somehow missed the CPSIA party, catch up here. Start at the bottom entry and work your way up. For others who've kind of sort of kept up, the CPSC released a new ballot on the final lead rule (pdf) last Thursday which provided details and proposed exemptions to lead testing. I know what you're thinking, it's a ballot and not final. That it will pass is essentially a foregone conclusion. So the question is, is this a good thing or a bad thing for apparel producers of kid's clothes? Judging from consensus, it's not a complete solution but we (apparel) are a whole lot better off than other segments of the children's products market.
Before getting into exemptions, I must reiterate that testing of individual components is technically not permitted under CPSIA. We were granted a stay effective through February 2010 but it's not a permanent change. I mention this because judging from the content of this 94 page document, it seems obvious that a change in testing requirements to favor component testing is being seriously considered. Here's the money quote (emphasis is mine):
The Commission is aware that there are many questions regarding component part testing and certification for lead content given that any children's product may be made with a number of materials and component parts. The questions regarding testing and certification are significant because not all component parts may need to be tested if they fall under the scope of the exclusions approved by the Commission... The Commission intends to address component part testing and the establishment of protocols and standards for ensuring that children's products are tested for compliance with applicable children's products safety rules, as well as products that fall within an exemption, in an upcoming rulemaking.
The reason I mention this before talking about exemptions is because exemptions are itemized per component. Many analysts are interpreting the focus on components as indication that policy changes will permit component testing in the future, hopefully before the expiration of the stay in February. Caveats dispensed with, here's the skinny.
As some of you already know, the CPSC posted a Statement of Policy (pdf) which includes Commissioner comments that outline the interpretation of the tracking label requirement as well as an updated FAQ. Perhaps surprisingly, many decisions are left in the manufacturer’s best judgment. Likewise, the CPSC mentions an “education period” although compliance is expected if it comes to a potential recall. Above all, it seems apparent the Commission does not intend to penalize manufacturers who have erroneously interpreted the guidelines provided any errors or omissions were made in good faith. That doesn't mean you're off the hook just because you're small. Tenenbaum said specifically:
...small volume manufacturers and crafters have expressed concern that they cannot feasibly comply with the statute because their production patterns do not lend themselves to lot, batch, and run labeling systems. To this end, the Commission agrees that small volume manufacturers or crafters need not create a labeling system incorporating the use of lot, batch, or run numbers so long as such manufacturers can keep adequate records of the components used in their products. The goal of the labeling statute is to enable manufacturers and consumers alike to ascertain pertinent information about a children's product in the event of a recall, not to implement a rigid and uniform labeling standard that applies to both small and large manufacturers in the same way. In developing and implementing a tracking label system, small volume manufacturers and crafters should also consider the business and recordkeeping practices of their peers.