An Amendment to the Consumer Product Safety Improvement Act (CPSIA)

Updated August 2, 2011

On August 1, 2011, members of the U.S. House of Representatives and the U.S. Senate approved H.R. 2715, an Amendment to the U.S. Consumer Product Safety Improvement Act (CPSIA) of 2008.   The bill has been forwarded to the White House for signature by President Obama.  When the bill is signed, a number of important changes will become law.  A summary of significant updates is shown below:

Lead

  • The bill prospectively applies the 100ppm lead content standard that goes into effect on August 14, 2011 only to goods manufactured on or after that date.  It also prospectively applies any future lead limits should the U.S. Consumer Product Safety Commission (CPSC) revise the lead content limit downward. 

    (Simply stated … Children’s products manufactured before August 14, 2011 are not subject to the 100ppm lead content limit though they still must be compliant with the 300ppm lead content limit.)   

  • The CPSC is given the authority (either on its own initiative or if petitioned*) to exempt a product, class of product, material or component part from the lead standard if the CPSC determines that:

    • The product, class of product, material or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture it by removing the excessive lead or by making the lead inaccessible;
    • The product, class of product, material or component part is not likely to be placed in the mouth or ingested; 
    • The product, class of product, material or component part will have no measurable adverse effect on public health or safety. [“Adverse effect” is defined as no measurable increase in blood lead levels.]

      *The burden to establish such functional purpose exclusion is on the petitioners if the request is initiated by the petition process.

  • Off-highway motorized vehicles are exempt from the lead content standard.

  • The lead content limits established in the stay of enforcement for bicycles are codified for metal parts in bicycles.  However, after December 31, 2011, all metal parts in bicycles must be below 300ppm.

  • Used children’s products are exempt from the lead standard. 

    [“Used children’s products” are defined as children’s products that were obtained by the seller for use and not for the purpose of resale, or that were obtained by the seller, either directly or indirectly, from a person who obtained the children’s product for use and not for purpose of resale.  The term also includes children’s products that were donated to the seller for charitable distribution or resale to support charitable purposes. The term does not include children’s metal jewelry, any knowingly violative children’s product and any other product the CPSC determines presents an unreasonable risk to children’s health.]

Third Party Testing

  • Testing will apply to “representative” samples and not “random” samples.

  • Sixty (60) days after the enactment of the amendment, the CPSC must request public comment on opportunities to reduce the cost of third party testing requirements including:

    • The extent to which third party testing or “evidence of conformity” for regulations of another government agency or other national standard may provide sufficient assurance of conformity;
    • The extent to which the CPSC can reduce redundant testing when there are two or more importers of the same product;
    • The extent to which testing a subset of components can demonstrate conformity of a product that has a substantial number of different components;
    • The extent to which manufacturers may take advantage of sampling procedures;
    • The extent to which technology exists for third party testing facilities to test or screen products; and
    • Other techniques to lower the cost and redundancy of third party testing.

      Not later than a year after the comment period, the CPSC will review the comments and may prescribe new or revised third party testing regulations.  If the CPSC lacks the authority to implement an opportunity to reduce the costs of third party testing, the CPSC will report to Congress recommendations for legislation to give the CPSC the authority to lower the testing burden.

  • The CPSC will take into account economic or other limitations that “small batch manufacturers” may face in third party testing and provide alternative testing requirements for "covered products."  If the CPSC determines that no alternative testing requirements are available or economically practicable, the CPSC will exempt small batch manufacturers from the testing requirements.  The CPSC may also allow small batch manufacturers to certify products based on documentation that the product complies with another national or international governmental standard or safety requirement.  The CPSC may not require third party testing for small batch manufacturers until the CPSC has provided alternative requirements or an exemption.  Small batch manufacturers must register with the CPSC before using any alternative testing requirement or exemption. 

    [“Small Batch Manufacturer” is defined as a manufacturer that has no more than $1,000,000 in total gross revenue from sales in the previous calendar year adjusted annually by the percentage increase in the Consumer Price Index for all urban consumers published by the Department of Labor.  Total gross revenue includes all gross revenue from all sales in all consumer products of each entity that the manufacturer controls. Such provisions do not apply to manufacturers of defined durable juvenile products under existing CPSIA Section 104.

    Covered product” is defined as any consumer product manufactured by a small batch manufacturer where there are no more than 10,000 units of the same product manufactured in the previous calendar year.]

  • Ordinary books (i.e., books printed on paper or cardboard, printed with inks or toners, and bound and finished using a conventional method – not including books with play value or toys packaged with ordinary books) and ordinary paper-based printed materials such as magazines, posters, greeting cards and similar products, etc. are exempt from third party testing requirements. 

  • Metal component parts of bicycles are exempt from third party testing.

Phthalates 

  • The legislation applies the existing phthalate standard to plasticized component parts of a children’s toy or child care article or any other component of a child’s toy or child care article that is made from materials that may contain phthalates.  

  • Inaccessible component parts are exempt from the phthalate standard.  [“Inaccessible” is defined as “not physically exposed by reason of a sealed covering or casing and that does not become physically exposed through reasonably foreseeable use and abuse of the product.”  Consideration is also based upon reasonably foreseeable use or abuse of such product, aging of the product, and consideration of swallowing, mouthing, breaking or other children’s activities.]  

  • The CPSC can revoke any exclusion from the phthalate standard if they deem necessary.  

  • Within a year after the amendment is adopted as law, the CPSC will either promulgate phthalate inaccessibility guidance or adopt the lead inaccessibility guidance with additional consideration, as appropriate, of whether such component can be placed in a child’s mouth.  Until then, a manufacturer will use the definition of inaccessibility contained in the legislation (see “inaccessible component parts are exempt” bullet point above).

Tracking Labels

  • The CPSC may exempt products or a class of products from the tracking label requirements.

Public Database

  • If the CPSC receives a notice that information within a report of harm is materially inaccurate, the CPSC must stay the publication of the report on the database for five (5) additional days.  

  • If the CPSC doesn’t receive a model or serial number or a photograph of the product involved in the report of harm, the CPSC will request the information from the submitter and then immediately forward it onto the manufacturer of the product.  The report of harm will be made available 15 days after the CPSC transmits the report of harm itself to the manufacturer.  

    NOTE:  The posting of a report of harm is not dependant on the availability of a model or serial number of the product or the picture of the product. 

Effective Date of Amendments

  • These Amendments are deemed effective when this bill is signed into law.


“This bill provides long-anticipated and much-needed relief for every company in the toy and children’s products industries.  TIA always has and always will support sound consumer product safety regulation, but the Amendment that was passed today by Congress was urgently needed to reduce some of the unintended and unnecessary burdens of the CPSIA.  The U.S. Consumer Product Safety Commission will now be able to move forward with implementing ‘common sense’ regulations that assure continued consumer protection.”

TIA President Carter Keithley
in an August 1, 2011 statement to members