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New CPSC Testing and Certification Rules: Helpful Hints for the Happy Importer
Quin D. Dodd, Esq.

This article summarizes the new CPSC children's products testing and certification regulations; CSPC import surveillance activities; and suggests specific strategies for U.S. importers, retailers and manufacturers to maximize their likelihood of compliance with these new requirements, while minimizing testing and administrative costs.

On February 8, 2013, the Testing and Certification or "1107" Rule (codified at 16 CFR part 1107) came into effect. The regulation represents the culmination of implementation by the U.S. Consumer Product Safety Commission (CPSC) of the landmark Consumer Product Safety Improvement Act of 2008 (CPSIA). The 1107 Rule requires U.S. importers and manufacturers of "children's products" (those primarily intended for children 12 and under) to undertake very specific testing and certification activities and to produce certain records demonstrating those products' compliance with CPSC mandatory safety standards including those limiting lead and phthalates in children's products.

This regulation is closely related to, and should be viewed in combination with, the previously adopted CPSC Component Part Testing or "1109" Rule, which allows U.S. importers and manufacturers to rely on test reports OR certificates for product components as well as final products. Finally, the CPSC just approved a proposed new Certification, the "1110" Rule, that could significantly alter when and by whom CPSC product certificates must be produced and maintained. And all of this comes at a time of increased port and market surveillance by the CPSC for standards violations and ever-growing civil penalties for violations of these and other CPSC requirements.

But as complex and often ambiguous as these new rules appear, there are specific strategies that I recommend to ensure compliance, but without dramatically increasing testing or administrative costs in doing so. In addition, there are other "words to the wise" that may help avoid potentially costly and time-consuming holds and seizures of products at U.S. ports of entry.

First, an overview of the new CPSC regulatory requirements:

1107 Rule

This regulation applies to those entities (U.S. importers of record or domestic manufacturers) that are required to certify children's products subject to one or more mandatory CPSC safety standards (and most children's products are subject to at least one mandatory standard, the ban on lead in excess of 100 parts per million in any accessible - touchable - component part). In general, the rule requires that, in addition to the existing required certification testing by a CPSC approved third party lab, children's product certifiers must:

1. Maintain a "high degree of assurance" that the products are compliant with all applicable CPSC safety standards.

2. Document, investigate and respond appropriately to any test failures of product samples submitted for certification testing.

3. Undertake additional testing (generally after certification and during production, but before introduction of the product into commerce). Such testing can be either "periodic testing" (conducted by a CPSC approved third party lab at a minimum interval of one year during product manufacture) or "production testing" (which may be conducted "in-house," i.e., at the factory or elsewhere by other than a third party lab). The frequency of such testing is not prescribed by the Rule, but must impart to the product certifier the same high degree of assurance that all products comply with CPSC standards.

4. Monitor and document any "material change" to the product (a change in the design, manufacture or sourcing of children's products that could affect compliance with CPSC standards) and retest (by a CSPC approved third party lab) and recertify the product to the standard(s) potentially related to the product change.

5. Adopt company policies and "safeguards" against any attempted exercise of "undue influence" over third party labs (attempts to use economic or other influence to skew test results) including training of "appropriate personnel" on how to avoid undue influence and their duty to report any such attempts to the CPSC.

6. Finally, all of the above must be documented and those records must be maintained and made available to the CPSC upon request for at least five years.

1109 Rule

Intended by the CPSC to provide some relief from the new testing and other costs imposed by the 1107 Rule, the Component Part Testing (1109) Rule allows (but does not require) that certifiers of either children's or non-children's products may rely on either a test report and/or a certificate from another company (e.g., an overseas factory/supplier) upon which the certifier (the U.S. importer or manufacturer) may rely in issuing its required CPSC final product certificate. And either finished products or product component parts or materials may be so tested and certified. So, for example, buttons intended for children's garments may be tested and certified as being in compliance with the CPSC lead substrate standard and the U.S. importer of either the buttons or the finished garments may rely on that button certificate (or even a certificate for the finished garments) in issuing its own certificate, IF the following conditions are met:

  1. The U.S. importer or manufacturer must generally exercise "due care" that the supplier of the test report or the certificate undertook all the activities required by the 1107 Rule. While the 1109 Rule does not specify what, exactly, a U.S. product certifier must do to satisfy this due care obligation, it does suggest that actual knowledge that the component part/product supplier complied with the 1107 Rule is necessary, as opposed to a mere assumption. The prevailing view is that a U.S. importer or manufacturer should at minimum get copies from the overseas or other factory/supplier of all of the documents required to be produced under the 1107 Rule.
  2. The final product certifier must also maintain certain documents in order to take advantage of the 1109 Rule by relying on test reports or product/component certificates supplied by others. Many of these informational requirements will most likely be already contained in most third party test reports (including identification of the product/component; applicable CPSC standards; test methods conducted; and the date the product/component was tested). However, there is also a requirement that the supplier of the test report or certificate upon which the U.S. importer or manufacturer relies must provide an attestation that that company itself exercised due care to prevent degradation, comingling or any other factor that might have compromised the product/component's continued ability to comply with CPSC standards. In addition, the U.S. importer or manufacturer (final product certifier) must itself attest that this was the case when it had custody of the product/component. Finally (and somewhat inexplicably), the Rule requires the third party lab to attest that it followed correct CPSC test procedures and sample selection requirements (if applicable).

Minimizing Compliance Costs

Given the complexity and burdensome nature of all of these requirements, what are some ways in which you (the importer of record or domestic manufacturer) of products covered by these rules can reduce testing and administrative costs? Here are some suggestions:

  1. Properly classify your products. Many companies tend to err on the side of caution in classifying products as either children's products or toys, both of which entail not only rigorous CPSC safety standards, but the burdensome 1107 Rule as well. If a product is not "primarily intended" for children under 13, it is likely not a children's product. (And products like sports equipment and musical instruments that have equal appeal to consumers both under and over 13 are not likely to be considered to be children's products). Nor is a product a toy simply because it may be played with by children. While "play value" is the key test of determining whether a product is a toy, if that play value is only incidental to the purpose for the product, then it is not likely a toy.
  2. Use the 1109 Rule whenever possible. Much to the chagrin of many overseas factories and suppliers, more and more U.S. importers (including many importer-retailers) are requiring their suppliers to demonstrate compliance with the 1107 Rule, thereby saving the importer the headache and, hopefully, additional cost in compliance. In addition, "good faith" reliance on another party's certificate may insulate the U.S. importer/manufacturer from any CPSC civil penalties for any standards violation that is later found, under Section 19(b) of the Consumer Product Safety Act.
  3. Use cheaper test methods and procedures whenever possible. Over the last year, the CPSC has formally recognized the use of High-Definition X-Ray Fluorescence (or HDXRF) instruments for the testing of lead in both the paints (surface coatings) and substrate materials (plastic, glass, metal, etc.) of all children's products. This testing is faster and less costly than traditional acid digestion ("wet chemistry") testing yet just as accurate. In addition, HDXRF is non-destructive of product samples and can be conducted on-site at a factory or elsewhere. Since lead violations are and will likely continue to be the number one source of product holds and seizures at U.S. ports, this and other alternative test methods can and should be utilized wherever possible.
  4. Make sure you produce at least the minimum documentation. The starting point here is to ensure that every children's or other product imported or sold in the U.S. first has a certificate that is produced before the product is imported or sold. Second, make sure you have at least the basic documents required under the 1107 (and, if utilized, the 1109) Rules. There are now on the market several IT compliance tools that can make the production and maintenance of these documents routine and much easier than producing them on your own. These are highly recommended, especially for overseas factories and other suppliers for whom these rules will be even more difficult to understand.
  5. Emphasize full compliance for the highest risk products and standards. Finally, not every product and every CPSC standard is alike in terms of compliance risk. Lead paint and small parts continue to be the two most aggressively enforced safety standards. Make sure you are fully compliant with both and that you have the required documents and paperwork to back those products up.

All of these new requirements imposed in recent months by the CPSC are certainly not easy to understand or comply with. However, failure to at least make a good faith effort to do so can mean delayed products at ports, unhappy supply chain partners, or even civil fines or other compliance actions by the CPSC. So get ahead of the game and check these new compliance boxes!

Quin Dodd is an attorney practicing exclusively in the area of federal, state and international product safety law. Previously, he served as Counsel and Chief of Staff for Commissioner and Acting Chairman Nancy Nord of the CSPC from 2005 to 2008. He may be reached at