Update for children’s products manufacturers

I thought of amending the first post I wrote about this but reasoned too few would see it.

Background: if you make products for children aged 12 and under, you're required to comply with a law known as CPSIA -it's been so onerous that F-I has a separate category set up for it. If you didn't know about it, you have a lot of reading to do. This isn't something to sweep under the rug because penalties are substantive and small companies are not exempt nor protected by the aura of good intentions.

Last week I'd mentioned you needed to register before the end of the year to qualify for certain testing exemptions. [Again note this is a testing exemption, not a compliance exemption. It matters because testing was the thing that was going to put a lot of people out of business (it actually did before the law was amended). ] I have it on good authority, specifically CPSC ombudsman Neal Cohen, who called me today to say there is no deadline. Yes, no deadline. This is good news. Now obviously you need to have your exemption in hand before selling anything but the deadline is not 12/31/11 and Mr. Cohen agrees the communication was problematic.

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CPSIA: If you make kid’s products, you MUST do this TODAY

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.

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The sizing police of children’s clothes

The big news in children's wear is that the CPSC has recalled sleepwear from Sage Creek Organics for violations of the federal flammability standard due to sizing. Yes, sizing. The recalled garments don't meet the "tight-fitting" sizing requirements -which you can find here. [The pdf is easier reading, there's also an overview of the regulations.]

For the uninitiated, children's sleepwear sizes are regulated because tighter fitting pajamas reduce the likelihood of burns. But there are a lot of problems associated with regulating sizes; for example, which standards are being used?

A cursory analysis of the CPSC's sizing standard suggests the agency has followed the ASTM guidelines (D-6192*) in spite of myriad complaints from manufacturers that the CPSC sizing is too small and I'm inclined to agree for several reasons. For one thing, there are many problems with the data set; it's very old, circa the 1920's. There is a newer data set (the CS151-50, my entries on it are here and here) which is itself dated but still closer to reflecting the increased girth and height of kids today. Comparisons are difficult but here's a chart comparing chest girth of the three which explains why I suspect the CPSC is using the ASTM data set. [The regulations published in the Federal Register describe but do not specifically cite a now withdrawn standard (D-5826), saying it was based on an anthropometric survey conducted in 1977 so I'm confused that its results mirror data from the D-6192 (09). ]


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CPSIA: Tell the CPSC to extend the testing stay!

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.

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CPSIA: Please take the survey!

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.

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CPSIA: Rick Woldenberg will be on 60 Minutes

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.

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Fair is fair: Blaming China?

I'm slightly annoyed about something I read on another site. Before I get into that, I want to ask you a related philosophical question.

Would you say a good contractor is someone who does what you say, no ifs and or buts? Yes? No? I say no. In my opinion, a good contractor (supplier, pattern maker etc) will refuse to do certain work, they should turn it down.

This is my case in point. It's a blog post from NTA (National Textile Assoc) about four more recalls of hooded sweatshirts. Here's an excerpt, emphasis is mine:

Children’s Hooded Jackets about 2,400 units Manufactured in P.R. China.

...These latest recalls bring to almost a quarter of a million of number
of articles of children's apparel recalled so far in 2010 due to health
hazards. All recalls so far this year have been of foreign-made

I'm not happy that most of the business went to China but fair is fair and this isn't. For each recall, the country of origin (contractor) was cited, namely China. Completely off the hook -in this entry, but not for the purposes of sanctions and penalties- were the responsible parties, i.e. the importers (manufacturers) and retailers of record. In other words, all were US companies. This entry should have said something like this:

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CPSIA update 12/23/09

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.

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CPSIA Update 12/9/09: Urgent action needed

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...

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CPSIA updates 11/10/2009

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.

  1. 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.
  2. 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

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