CPSC undecided on request to stay tracking label requirement

tracking labelLast week CPSC commissioners voted on whether to grant a request for an emergency stay of enforcement for the CPSIA tracking label requirement which goes into effect on August 14, 2009. Commissioner Nord voted for the stay and Commissioner Moore voted against it, leading to a tie vote.

In a written statement, Nord explained:

The tracking label requirements of the Act have the potential to be especially burdensome given the long lead times many companies need to implement such requirements. Unfortunately, the law does not give us appropriate lead time nor does it give us flexibility to impose the requirements by product class and prioritize in an order based on importance. For example, with more regulatory flexibility, I would argue that we first turn our attention to the high value products with long useful lives and a history or recall issues. Applying lessons learned, we could then determine how the tracking label requirements should be applied to additional products.

Nord identified the following key issues:

(1) confusion over the meaning of the statutory provisions; (2) consensus that “one size does not fit all” and companies need to be able to develop labels that work for their individual products and that also meet the needs of the CPSC to increase recall effectiveness; (3) lead time is critical for companies to comply; and (4) an educational period of time is important.

Nord concluded that the delay would result in more efficient implementation of the Act.

Taking a different position on the issue, Commissioner Moore explained in his written statement:

The section of the CPSIA that requires manufacturers of children’s products to place tracking information on their products becomes effective on August 14, 2009, with no requirement for any action by the Commission. Unlike the other provisions of the CPSIA, section 103 does not require the Commission to adopt regulations as an aid to compliance. It is a relatively brief section, but it does, like so many provisions of our laws, requirement manufacturers to exercise sound judgment in meeting its requirements.

Moore concluded by noting:

I appreciate that manufacturers want complete certainty as to what they can or cannot do under this section, but I cannot vote to grant a request for a stay of enforcement of the entire section. While the Commission has stayed enforcement of a few sections of the CPSIA for certain products, it has not granted a blanket stay of enforcement from a provision for every affected product, which is what this request seeks. Granting such a request would amount to a postponement of a statutory effective date and that is something that the Commission does not have the authority to do.

I wonder how the outcomes will change when the new commissioners weigh in. With two new Commissioners appointed by Obama, we may see more tie votes. At least until Obama makes good on his promise to add a fifth commissioner. See my recent post: Obama pledges increased CPSC funding, nominates new CPSC chair, expands commission for more details on impending changing in the make-up of the CPSC.

See Mark’s recent post CPSIA tracking label requirements for more information on the provision.

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