On August 14, 2008, the Consumer Product Safety Improvement Act (CPSIA) was signed into law in light of increasing numbers of product recalls, particularly relating to children’s products, although the scope of the law is much broader. Especially for businesses in industries not traditionally subject to many of the Consumer Product Safety Commission’s (CPSC) product safety regulations, attempting to stay on top of the complex and continuously evolving requirements can be overwhelming.

In addition to lowering the already-existing limits on lead in paint and other surface coatings (and certain products bearing such surface coatings), the CPSIA prescribes limits on the amount of total lead permissible in children’s products. Children’s products are broadly defined to include any “consumer product designed or intended primarily for children 12 years of age or younger.” Those containing lead in excess of the allowable limits, in any part of the product, are treated as banned hazardous substances, regardless of their date of manufacture.

The CPSC has determined that certain products will never exceed the lead content and therefore do not need to be tested. Those exempted products of particular note to the apparel industry include textiles consisting of dyed or undyed natural fibers—cotton, linen, hemp, bamboo, silk, wool and others—and dyed or undyed manufactured fibers—rayon, azlon, lyocell, acetate, triacetate, polyester, nylon, acrylic, modacrylic, and spandex among others.

It is crucial to note that these exemptions exclude embellishments such as screen prints, transfers, decals or other prints. They also exclude such materials if they have undergone further treatment that may impart lead, are ornamented with metal, rhinestones or other objects, or have plastic or metal fasteners with possible lead content such as snaps, grommets, zippers, or buttons. Further, a business will not be immune from prosecution if it had actual knowledge of excessive lead and continued to make, import, distribute, or sell said product.

CPSIA prohibits the manufacture, sale or import of children’s toys and child-care articles containing certain phthalates above a permissible level. The Act also prohibits certain additional phthalates in child-care articles and children’s toys that can be placed in a child’s mouth. Like the lead requirements, the phthalates provisions apply to a product regardless of when it was manufactured.

According to the CPSC’s published draft approach for determining which products are subject to the phthalates provisions, products such as bibs and baby blankets that facilitate feeding and sleeping are considered child-care articles. Pajamas also may be included. The CPSC has issued a request for comments on its draft approach and has stated that it will consider issuing a notice of proposed rulemaking depending on the comments received. The CPSC General Counsel also issued an advisory opinion on phthalates and children’s apparel containing an analysis consistent with the CPSC’s published draft approach.

One of the most sweeping provisions of the CPSIA states that manufacturers, importers and private labelers of consumer products subject to the CPSIA must provide certificates of conformity to each distributor and retailer of the product, and the certificate must also be packaged with all shipments of such products. For children’s products, the certificates must be based on the tests of an independent, third-party accredited laboratory. For other products, the certificates must be based upon a “reasonable testing program.”

The CPSC has since issued a rule for imported products that states only the importer must issue the certificate. For domestically-manufactured products, only the domestic manufacturer must issue the certificate. The CPSC also has issued guidance regarding the permissible use of electronic certification to streamline the process. Despite these streamlining efforts by the Commission, the CPSIA testing and certification requirements have probably created more havoc than any other provisions of the law, mainly due to complex logistical issues and the amount of resources needed to achieve compliance.

In February 2009, the CPSC issued a one-year stay of enforcement for the testing and certification requirements for lead, phthalates and mandatory toy standards. This past December, the CPSC voted to extend the stay of enforcement for testing and certification of some children's products. It also extended the stay on certification and third-party testing for children's products that are subject to lead content limits under CPSIA until February 10, 2011

The stay of enforcement provides limited relief from the testing and certification requirements for those standards, but manufacturers and importers must still comply with the underlying requirements. The stay does not apply to certain specified requirements, including but not limited to the ban on lead in paint and other surface coatings above permissible levels, the ban on small parts, and the limits on lead in children’s metal jewelry.

Under the CPSIA, the Commission is required to establish an online, publicly-available consumer product safety database. The database will be searchable by date, product name, model, and manufacturer. It will also contain information from Section 15(b) reports and from consumers.

The Commission will have to work through many details to develop the new database. Stakeholders have generally agreed on the need for accuracy, although debate continues on what steps will ensure such accuracy. For one example, companies want sufficient time to review and respond to complaints, while consumer groups urge that allowing too much time could delay public notification about hazardous products. In another, industry representatives fear that malicious or other false reports could come from sources such as competitors, disgruntled employees, consumers angry for reasons other than safety, or even plaintiffs’ attorneys looking to build a case.

The language of the CPSIA and the flurry of subsequent activity indicate that broad-based product safety regulation is here to stay. Businesses in the apparel industry would be well-advised to revisit product-safety procedures to ensure compliance with the new legislation while continuing to monitor for relevant developments.