CPSC Stay of Enforcement Fails to Provide Necessary Relief to Toy Industry

February 2, 2009 - The U.S. Consumer Product Safety Commission (CPSC) voted Friday to postpone for one year the enforcement of testing and certification requirements under Section 102 (a) of the Consumer Product Safety Improvement Act (CPSIA). TIA expressed its disappointment with the action, stating that the decision fails to offer needed relief for the manufacturers of children’s products.

In a January 31 message to members and industry contacts, TIA explained that the CPSC’s Emergency Stay delays only the testing and certification requirements scheduled to take effect on February 10, 2009; it does not modify the February 10, 2009 deadline to comply with the CPSIA’s new requirements for lead, phthalates and other mandatory safety standards.  Standing requirements for third party verification and certification for existing lead paint and small parts regulations already in effect are also unchanged by the CPSC Stay.

“The testing and certification requirements are deferred for one year, but compliance with the new CPSIA standards begins in just over a week . . . and the only way to demonstrate this compliance is through testing,” explained Carter Keithley, TIA president. 

Products already in inventory that do not meet the new CPSIA requirements – even if they met the standards that were in place when the legislation was passed – will be in violation of the law.

“We do think there are very few toys with high lead levels left on the market, but the Stay needs to be extended to enforcement of the new limits until clear easily understood regulations are finally put into palce by the CPSC.”

Congress has left authority to resolve problems with the legislation to CPSC, but the Commission has stated that it cannot alter the statutory requirement for compliance with the new standards. According to CPSC, Congressional action is required for this change.

The toy industry is now faced with a stand-off between Congress and CPSC … and a confusing situation in which meeting the requirements of the CPSIA must be balanced with a lack of proper guidance. Retailers also need further assurances from CPSC that they will not enforce until regulations are clearly enacted.

Despite its best efforts, the CPSC faced unrealistic and arbitrary deadlines and has been unable to provide the information and guidance needed to comply with the new requirements.  Friday’s decision acknowledges that the original timetable could not reasonably be met.  The Commission must now move quickly to provide clarification in a comprehensive regulation so that businesses have clear direction of requirements prior to the manufacture of products, but such clarification will not likely come in time for the February 10 effective date.

On January 28, 2009, 67 industry groups – including TIA and the National Association of Manufacturers – requested a delay of at least six months on all requirements that were to become effective on February 10.  The petition referenced pending CPSC decisions regarding the definition of accessible components and the exclusion of certain products or materials.

TIA and its members are now turning their attention to Congress with a plea for legislation that will institute an emergency delay of the February 10 effective date.  The requested action is two-fold:  first, Congress should immediately delay implementation of the lead, phthalates and other standards requirements until the CPSC can issue final comprehensive rules and interpretative regulations that will allow for a reasonable implementation.  Next, the House and Senate should review and modify the Act itself so that unintended consequences that harm the economy can be corrected.

“The toy industry supports expeditious implementation of the CPSIA, but as it now stands, enforcement of the February 10 requirements will create extreme hardships for manufacturers and retailers of toys and all other products intended for use by children,” said Keithley.  “Because CPSC has yet to issue regulatory guidance on testing and certification for compliance, billions of dollars of products will remain ‘in limbo’ and potentially unsaleable until such regulatory guidance is provided and they can be tested.  Businesses may be forced to close, jobs lost, and an untold number of safe products will be destroyed . . . all at the crux of worsening economic times.”

"The stay of enforcement of the testing and certification provisions will give some temporary and limited relief to small manufacturers, home-based businesses and crafters who cannot comply with the law without incurring substantial testing costs," said CPSC Chairwoman Nancy Nord in a written statement. "However, the stay does not relieve them of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009 ..."

According to Nord, retailers, thrift shops, charities, and other sellers do not now have a legal requirement to test their inventory, but they are still required to meet all standards enacted by Congress.

“These businesses will have to decide whether they will continue to sell products that have not been tested, even though no one has suggested that they are unsafe,” said Nord.