CPSC Approval of “1112 Rule” Means New Testing Options, Just When They’re Needed Most

On February 21 the CPSC approved its final so-called “1112 Rule.” While the bulk of this rule formalizes the requirements for third party labs to be CPSC approved to conduct testing of children’s products, the rule also contains a significant expansion of the use of X-ray fluorescence (XRF) instruments and test methods to conduct testing for lead. Considering that this vote comes on the heels of the February 8 effective date of the “Mother of all CPSC Regulations,” the Testing and Certification (or “1107”) Rule, the use or expanded use of XRF should be carefully considered as one, but not the only, means of reducing the costs and administrative burdens of your overall CSPC testing and certification compliance plan.

The 1112 Rule allows the use by labs of both HDXRF (“high-definition” XRF) and, under more limited conditions, traditional (“handheld”) XRF instruments for testing lead in the substrates (content) of children’s products subject to the CPSIA lead content limit of 100 ppm. This marks the first time that the CPSC has recognized test methods other than “wet chemistry” to conduct such testing for all major substrates, including plastics, metals and glass/crystal. When coupled with the CPSC’s April 2011 approval of HDXRF (not traditional XRF) for lead paint testing, this move promises to give both labs and supply chain companies (manufacturers, importers, retailers, etc.) a lower-cost, non-destructive alternative for certification testing, as well as the newly required periodic (third party/lab) and production (first party/factory) testing under the 1107 Rule.

But the use of HDXRF/XRF testing for both third party and first party testing is just one strategy firms should consider in minimizing CPSC testing costs. As anyone who has read the entirety of the 1107 Rule knows, it and its explanatory documents are detailed, often ambiguous, and espouse many aspirational goals that may not be realistic for firms interested in actually staying in business.

I advise clients to start with the documents actually required by both the 1107 Rule and, if utilized, its companion Component Part Testing (“1109”) Rule and work backward from there, fleshing-out those documents after completing the minimal information they require. At US ports of entry, CPSC personnel may well ask for your documentation (certificate, production testing plan, etc.), but the likelihood that they will question the statistical rigor or other justifications behind your plan—your “high degree of assurance” and “due care” required by these rules—appears low. The admonition to “don’t get it right; get it written” comes to mind here.

Second, systematize production of these required documents, notably including the required periodic/production testing plan, and wherever possible incorporate compliance with these rules into your existing compliance and document production systems. While the 1107 Rule literally requires a separate testing plan for every different product at every production site, attempting to start from scratch for every children’s product you import or sell may simply be too burdensome. The use of private IT solutions is one means to achieve efficiency here, as is the use of broader testing protocols and justifications for those protocols that can be applied to similar products. Just make sure you in fact have a separate testing plan for every different product, even if those plans and documents may look similar.

Third, don’t be afraid to inject risk analysis into the development of your testing plans and other compliance activities. Lead paint (and to a lesser degree lead substrate) and small parts continue to be the source of a significant percentage of port seizures. Since CPSC/port examination of 1107/1109 documentation (other than certificates) may not be likely absent finding a violation of these or other CPSC safety standards (at least not yet), devoting more compliance resources to “higher risk” products is a logical approach. Likewise, complete absence of a periodic/production testing plan is likely to carry greater compliance risk than the absence or incompleteness of other required documents, say, failure to maintain the Section 1109.5(g)(10) due care attestations required under the Component Part Rule.

Finally, and to the point of the newly adopted 1112 Rule, actively seek to minimize your testing costs, but without sacrificing testing quality. If you’re confident you don’t have children’s products or toys, don’t generally order or accept recommended lead or toy testing. And if there is a cheaper or faster test method, ask for it. Requesting and using HDXRF (and where it may be used, traditional XRF) for both third and first party lead testing is a wise place to start.

Quin Dodd is an attorney practicing exclusively in the area of federal, state and international product safety law. He served as counsel and chief-of-staff to CPSC Commissioner and Acting Chairman Nancy A. Nord from 2005 to 2008. Quin may be reached at: quin@quindoddlaw.com.