Stay of Enforcement May Not Do Much To Help Companies Comply

Under the CPSC stay that was issued on Friday 1/30/09, companies would not be required to provide testing or certification documentation regarding the compliance of their products with certain new CPSIA rules and standards.
The agency took this action because of the utter confusion over interpretation and applicability of the CPSIA. For example, the agency is working on rulemaking pertaining to applicability of the CPSIA to electronic products, inaccessibility of components in children’s products containing lead and determinations on whether certain materials will not inherently exceed lead content limits. There is also confusion over expensive phthalate testing which is crippling many small business owners — assuming they could even get testing data which is backlogged for weeks.

Notwithstanding the agency’s action, the CPSC stay may have limited practical utility, because the commission stated that “the stay does not relieve [companies] of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009, dealing with lead, phthalates and a number of other toy standards. Any changes to these requirements will need to be addressed by Congress.” Bottom line, consumer products (including existing inventory) that exceed an applicable CPSC standard (such as the 600 ppm standard for total lead in children’s products) are still deemed a banned hazardous substance and can’t be sold after February 10, 2009, unless Congress jumps in and amends the law.

Also, CPSC stay has no legal effect on the ability of state attorney generals to enforce the testing and certification provisions of the law. While the CPSC recommends that the AG’s do not undertake enforcement, some AG’s may disregard the recommendation and seek to enforce the law. We may also see third-party lawsuits challenging the stay.

There are a few proposals now floating around Congress to amend the CPSIA, but it is unclear whether Congress will act before 2/10/09. While the CPSIA is a well-intentioned law, there comes a time to step back from the brink, reassess and make reasonable changes to strengthen the path forward.

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