Monday September 10, 2012

CPSC Draft on Reducing Testing Burdens Focuses on 11 Ideas

By Sean Oberle

CPSIA Testing & Certification Countdown to Compliance

September 18, 2012

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Time is running out. In just a few months, the CPSIA testing and certification rules become effective. You need to make sure – now – that your company is on the track to meeting them.

These game-changing regulations impose strict requirements that affect how – and whether – your company can remain viable in the consumer products marketplace. Their broad compliance provisions include mandates on certification tests, third-party labs, recordkeeping, material changes, labeling, sampling, components, and lots, lots more.

On September 18, 2012 at 2pm EST join three widely-recognized CPSIA experts for a one-hour webinar that will help you make sure you and your company are ready:

David P. Callet, shareholder at Greenberg Traurig, has nearly four decades of experience advising clients in CPSC and other compliance matters.

Quin D. Dodd, principal at the Law Offices of Quin D. Dodd, served as CPSC chief of staff and Capitol Hill counsel.

Eric L. Stone, principal at the Law Firm of Eric Stone, was head of the legal division of the CPSC compliance office and served 33 years at the agency.

Be sure to sign up by September 7 to take advantage of early bird pricing.

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CPSC members are slated to hold a decisional meeting October 3 on staffers’ 11 recommendations for easing the burden of third-party testing. Many of the suggestions are worded in terms like “research the feasibility,” so they likely would not offer relief soon. Earlier this year (PSL, 2/13/12, p. 1) CPSC received feedback from stakeholders on ideas for easing the burdens.

The work stemmed from a mandate in the August 2011 CPSIA amendments. CPSC also listed the project in the ongoing White House inspired regulatory streamlining effort (PSL, 4/30/12), and it said it would aim at finding burden reducers during fiscal 2013, which begins October 1.

The first suggestion involves education of companies on testing rules. Staffers wrote, “With a fuller understanding of the regulations’ requirements and flexibilities, opportunities for using the same component part test results across many products could be better realized, or instances of redundant testing could be avoided.”

The second recommendation – to look at the determinations route – includes three parts:

Create a list of tests in international standards that firms could use to show conformity with “corresponding… CPSC-administered children’s product safety rules.”
Consider expanding to eight other heavy metals the process now used to determine that materials meet the 100 ppm lead standard. The F963 toy standard lists the metals.
Look into the possibility of creating a similar list of materials determined not to contain phthalates.

Third is to consider allowing Fourier transform infrared spectroscopy (FTIR) to show phthalates compliance. Concerns, however, are the ability of the method to distinguish between prohibited and allowed phthalates and its ability to identify concentrations above 0.1%.

Fourth is to look at allowing a production-volume option for periodic testing in lieu of scheduled intervals. Staffers’ example was every 10,000 units but at least once every three years. Firms would need to document that the products were low volume and certification requirements still would apply.

Fifth – involving expansion of third-party conformity assessment bodies – are two options:

Consider moving beyond ILAC-MRA signatories for the groups that accredit acceptable testing labs.
Look into whether labs accredited to the upcoming ISO/ IEC 17065 conformity assessment should be deemed acceptable for children’s product certification.

Sixth is to consider de minimis testing exemptions for lead paint and phthalates. The aim would be to minimize situations such as when painted or plasticized components are so small as to require destruction of many units simply to get a useful sample size for testing.

Seventh are two questions about increasing the lead content determinations at 16 CFR 1500.91:

Can adhesives used in manufactured woods be deemed not to have lead over 100ppm? Simple wood is on the list, but manufactured woods, due to the adhesives, are not.
Should materials deemed safe for adding to food by the Food and Drug Administration be included? Staffers noted that the lead limits range from 0.1 ppm to 10 ppm.

The eighth suggestion is to clarify that firms that do not do periodic testing do not need to create plans for doing so. The option could aid firms – such as with short production runs – that “find it prudent or efficient to recertify the children’s product, rather than conduct periodic testing.”

Ninth is a recommendation to look at linking low risks of noncompliance with longer periodic testing intervals. This idea would focus on product classes, not particular manufacturers, and among issues that CPSC would need to consider are the rationales for expanding to particular intervals and what to do about outlier companies.

Tenth is to look at ways to reduce administrative costs with information technology. Staffers were intrigued by a commenter that said it could provide its testing plan and document generation tool free to small manufacturers in a public/private partnership with CPSC.

Eleventh is to seek authority from Congress to recognize certification of a manufacturing process as satisfying testing requirements due to the ongoing reassessments involved.

Download a copy of the briefing package from http://www.cpsc.gov/LIBRARY/FOIA/FOIA12/brief/reduce3pt.pdf.