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OIA Looks at Impacts of New Law

Published December 4, 2008

BOULDER, CO (BRAIN)—Even though the first deadline to comply with the new consumer product safety legislation has come and gone, there’s still plenty of confusion among manufacturers regarding the potential implications of the law.

The Outdoor Industry Association held an online seminar on Thursday afternoon to tackle some of the lingering questions with the help of Alan Klestadt, a customs law attorney with the Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt firm in New York.

Klestadt briefed the group on the updated Consumer Product Safety Improvement Act, which Congress passed on Aug. 18 in response to a spate of children’s toy recalls in 2007.

“In short, the CPSIA touches every statute regulated by the CPSC with a particular emphasis on children’s products,” Klestadt said.

One of the biggest changes involves the new requirement for a general certificate of compliance. The law states that all goods manufactured after Nov. 12 for children 12 and younger must have a certificate verifying compliance with the new lead and phthalate standards, as well as any other Consumer Product Safety Commission standard by which the product is regulated.

Adult products only need a certificate if they are regulated by a CPSC standard.

The certificate can be in electronic or paper format and it’s up to the product’s importer to supply the certification.

But, there’s been a series of “mini-crises and misunderstandings” as to what products are subject the certificate of compliance rule, Klestadt said.

“The hoopla involving the compliance certificate is really illustrative of how this whole process is being evolved. It’s evolving in front of us all,” he said.

The CPSC, whose staff numbers about 400, has been overwhelmed with requests for clarifications from manufacturers potentially affected by the law to the point where “they are literally drowning,” Klestadt said.

In the bicycle industry, all products must furnish a certificate because the industry is regulated by the CPSC Bicycle Regulations. There’s a bit more gray area in the outdoor industry, however.

Most adult apparel is regulated by the CPSC’s Flammability Regulations, and those products need to have a certificate. Gloves, headwear and footwear are exempt from that regulation and therefore do not need a certificate unless the products are made for children 12 and younger. If that’s the case, the products must be tested by a third party facility to meet the new lead limits.

Things get murkier when addressing the law’s new lead paint and substrate limits and the general lead ban.

Children’s products manufactured after Dec. 22 must be tested to meet the new lead paint and substrate limits. Products made after Feb. 10, 2009 must meet the new general lead ban and products exceeding the 600 parts per million limit will be deemed hazardous and banned from retail shelves.

Inaccessible parts are not subject to this rule. The CPSC is scheduled to provide more guidance on what is considered inaccessible by Aug. 14 of next year. The bicycle industry has asked CPSC staff to clarify whether certain products like Schraeder valves, spoke nipples and cable ends would be considered inaccessible.

Many manufacturers are still waiting for guidance on other topics relative to the law such as whether all new rules will be retroactive to products already on the shelves, and how to determine if general items, like swim goggles, are considered intended for children under the law.

Although the civil penalties for violating the law have been significantly increased under the new legislation, Klestadt believes the biggest threat remains a product recall and the ensuing damage to a company’s reputation and loss in consumer confidence in the product.

The Outdoor Industry Association and the Bicycle Product Suppliers Association both advise members to seek legal guidance on how to best comply with the new law.

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—Nicole Formosa

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