Question of the Week #3

NEW TO OUR BLOG – A FEATURE WE CALL OUR QUESTION OF THE WEEK

We will be putting up a consumer product safety question each week. The answers will be forthcoming the following week along with a new question. Check back frequently and let us know if you have a question.

We recently posed Question #2:

Does the CPSIA allow me to export a product if I have not yet instituted a program of testing and I don’t know if my product is compliant with a CPSC rule, ban, standard or regulation?

Response

All U.S. exporters must notify CPSC at least 30 days before they expect to ship products that do no comply with consumer product safety regulations. During this time CPSC will inform the recipient foreign government of the shipment and also provide the name of the consignee. Officials of the receiving country may then make an informed judgment as to whether to permit entry of these goods which do not comply with CPSC safety and health standards.

The export notification regulations apply not only to banned or non-complying consumer products (under the Consumer Product Safety Act) but also to fabric or upholstered furnishings which fail to comply with flammability standards (under the Flammable Fabrics Act) and substances which have been banned or fail to comply with labeling requirements (under the Federal Hazardous Substances Act).

Products already marketed in the United States that do not comply with CPSC standards may not be exported. These products can’t be “dumped” by the manufacturers onto unaware foreign nations.

Under CPSC regulations at 16 CFR 1019, exporters must provide the following information before shipping noncompliant products:

– name, address and phone number of the exporter

– anticipated date of shipment

– country and port of destination

– quantity of goods to be shipped

– description of the goods, including brand or model number

– description of how the goods fail to comply with CPSC regulations

– name and address of the consignee.

The CPSC’s export controls were recently enhanced by the Consumer Product Safety Improvement Act (CPSIA). Under Section 221 of the new law, the CPSC may prohibit a person from exporting a product that is not in comformity with a CPSC safety rule unless the importing county has notified the CPSC that it accepts the importation. The law now requires an affirmative acceptance of the products before shipment can be commenced.

The CPSIA requires “manufacturers” of products to conform to new standards and to provide testing and certificates of conformity attesting to product compliance. In the case of children’s products and child care articles, the standards for lead and phthalates apply retroactively such that products in inventory that do not meet the standards are banned from sale as of February 10, 2009. The CPSC has stayed enforcement of the requirement for testing and certification, but the underlying safety standards are still the law and may be enforced.

This means that significant quantities of existing inventory may be non-compliant. If a “manufacturer” knows that a product is non-compliant, under the CPSC export control laws, these products can not be shipped without approval from the destination country.

Interestingly, the export control laws apply to any “person,” so even a retailer or distributions must not export a product if they know the product is noncompliant with safety regulations. It is unclear how or whether the CPSC’s current stay of enforcement for testing certification will be applied to export control limitations. If a retailer does not have a certificate from the manufacture (because it’s not required under the stay of enforcement), can the retailer export products it has removed from the shelves because the products may not comply with CPSC standards? The CPSC has not yet provided guidance on this or similar questions.

Let’s take an example of a company (or even a retailer making inter-company shipments) that exports bikes and bike component parts. If the bikes lack safety reflectors required by CPSC regulations, the company may not export the bikes unless it first gets approval from the receiving country either to accept entry of the non-complying products or to make arrangements to equip the product with safety features. Similarly, if the company is selling component parts that exceed the lead or phthalate limits, the company would now be precluded from exporting the parts without first getting necessary approvals. These are perhaps unintended consequences of the CPSIA law, but nonetheless they have to be considered as part of an overall consumer product safety compliance mandate.

In conclusion, the CPSC restricts export of products that do not comply with any CPSC rule, law, ban, standard or regulation. A person should exercise reasonable diligence in exporting consumer products to avoid any implication that noncom plying products were shipped (or dumped) to avoid CPSC regulations. There may be substantial penalties for noncompliance.

Now for our Question of the Week #3.

A company has received several reports of injuries associated with the use of its product. The company has heard of the CPSC Fast Track Recall program and wants to know if it should participate in the program. What factors should the company consider before entering into the fast track program?

Check back with us next week for our response. Also, let us know what you think of our blog and questions you may have about consumer product safety. MRK

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