U S Consumer Product Safety Commission This presentation

U. S. Consumer Product Safety Commission This presentation has not been reviewed or approved by the Commission and may not reflect its views 1

Consumer Products Exported to the United States Who is Responsible for Safety? Richard O’Brien Director, Office of International Programs and Intergovernmental Affairs This presentation has not been reviewed or approved by the Commission and may not reflect its views 2

Imported Products Are Essential for the U. S. Economy and Represent Important Revenue for the Exporting Economy. But Know the Rules Before You Agree on the Order! U. S. Consumer Product Safety Commission n Department of Transportation n Department of Commerce n Environmental Protection Agency n Department of Agriculture n 3

Imported Products Are Essential for the U. S. Economy and Represent Important Revenue for the Exporting Economy. But Know the Rules Before You Agree on the Order! U. S. Food and Drug Administration n Department of Homeland Security n Federal Communications Commission n Department of Energy n Some States n 4

U. S. Consumer Product Safety Commission (CPSC) n An independent federal agency n Established May 1973 n Responsible for Consumer Product Safety functions of the Federal Government n Three Commissioners, appointed by the President and confirmed by the Senate 5

Will You Be Trading in Any of 15, 000 Types of Consumer Products? “. . . any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise…” 2 2 Section 3(a)(1) of the Consumer Product Safety Act, 15 U. S. C. § 2052 (a)(1) 6

Not Within CPSC Jurisdiction “… any article which is not customarily produced or distributed for sale to, or use or consumption by, or enjoyment of, a consumer…” 3 n Alcoholic beverages, tobacco, firearms and explosives (BATFE) n Motor vehicles and equipment (NHTSA) n Pesticides (EPA) n Aircraft (FAA) n Boats (Coast Guard) n Food and drugs (USDA and FDA) n Occupational products (OSHA) n Fixed-site amusement park rides (State jurisdiction) 3 Section 3(a)(1)(A) of the Consumer Product Safety Act, 15 U. S. C. § 2052 (a)(1)(A) 7

Laws That Give CPSC Jurisdiction Over Consumer Products Whether Made in USA or Imported n Consumer Product Safety Act (CPSA) n Federal Hazardous Substances Act (FHSA) n Flammable Fabrics Act (FFA) n Poison Prevention Packaging Act (PPPA) n Refrigerator Safety Act (RSA) 8

Other Jurisdictional Issues n n n Manufacturers, distributors and retailers: all equally responsible and liable under the acts 4 (but common carriers are specifically excluded)5 Exported goods: excluded from jurisdiction unless the Commission finds such export presents an unreasonable risk of injury to consumers within the United States 6 Preemption: all state and local regulations that conflict with CPSC regulations addressing the same risks 7 4 Section 15 (b) of the Consumer Product Safety Act, 15 U. S. C. § 2064(b) 5 Section 3 (b) of the Consumer Product Safety Act, 15 U. S. C. § 2052(b) 6 Section 18 (a)(1)(B) of the Consumer Product Safety Act, 15 U. S. C. § 2067(a)(1)(B) 7 Section 26 (a) of the Consumer Product Safety Act, 15 U. S. C. § 2075(a) 9

Product Safety Standards n CPSA provides for regulations (mandatory) and private sector consensus (voluntary) product safety standards n Regulatory process for a mandatory standard can be started by vote of the Commission or by a petition from an interested party 10

Product Safety Standards n Private sector consensus voluntary standards are developed in cooperation with the CPSC staff n CPSC statutes set a preference for consensus voluntary private sector standards 11

Standards Exist to Prevent… Reporting Requirements 10 n Manufacturers, retailers and distributors must report immediately to the Commission if they obtain information which reasonably supports the conclusion that the product: n contains a defect which could create a “substantial product hazard, ” or n creates “an unreasonable risk of serious injury or death. ” 10 Section 15 (b)(1), (2), (3) of the Consumer Product Safety Act, 15 U. S. C. § 2064(b) 12

Primary Voluntary Standard Development Coordinators Utilized for Consumer Products n ANSI (American National Standards Institute) Motorized Equipment n Lawn & Garden Equipment n Household Products n Safety Labeling n n ASTM International (formerly American Society for Testing and Materials) n Children’s Products 13

Primary Voluntary Standard Development Coordinators Utilized for Consumer Products NFPA (National Fire Protection Association) n Electrical n Fire Suppression (sprinklers, fire extinguishers) n Fueled Devices Underwriters Laboratories (UL) n Electrical and other products 14

CPSC Mandatory Toy Standards Title 16 CFR, Part: n n n 1117. Reporting of choking incidents involving marbles, small balls, latex balloons and other small parts 1500. 18 Banned toys and other banned articles intended for use by children. 1500. 19 Misbranded toys and other articles for use by children. Markings for Small Parts/Toys 1500. 40 Method of testing toxic substances. 1500. 47 Method for determining the sound pressure level produced by toy caps. 1500. 48 Technical requirements for determining a sharp point in toys and other articles intended for use by children under 8 years of age. 15

CPSC Mandatory Toy Standards Title 16 CFR, Part: n n 1500. 49 Technical requirements for determining a sharp metal or glass edge in toys and other articles intended for use by children under 8 years of age. 1500. 50 Test methods for simulating use and abuse of toys and other articles intended for use by children. 1500. 51 Test methods for simulating use and abuse of toys and other articles intended for use by children 18 months of age or less. 1500. 52 Test methods for simulating use and abuse of toys and other articles intended for use by children over 18 but not over 36 months of age. 16

CPSC Mandatory Toy Standards Title 16 CFR, Part: n n n n 1500. 53 Test methods for simulating use and abuse of toys and other articles intended for use by children over 36 but not over 96 months of age. 1500. 85 Exemptions from classification as banned hazardous substances 1500. 86 Exemptions from classification as a banned toy or other banned article for use by children. 1500. 121 Labeling requirements; prominence, placement, and conspicuousness. 1500. 230 Guidance for lead (Pb) in consumer products. 1500. 231 Guidance for hazardous liquid chemicals in children's products. 1505 Requirements for electrically operated toys or other electrically operated articles for use by children 17

What are Importer’s* Responsibilities? n Safety Consciousness n Specifications (standards) n Mandatory and Voluntary Certification n Testing n Market Surveillance n Reporting n Corrective Action _______________________________________________________________________ * Importer and Supplier Must Work Together 18

Basic Responsibility n Under the Consumer Product Safety Act, the term “manufacturer” is defined to include any person who imports a consumer product. n Importers, although reliant on foreign producers, are directly responsible for the safety of products they bring into the United States. 19

Safety Consciousness n Do your homework – know exactly which standards apply to the product you plan to sell n Mandatory standards are the bare minimum n Consensus standards will help avoid trouble n Learn the safety issues before you make a deal, not after n Use the information from CPSC website n Sign up to receive notice of CPSC recalls n Talk to experts in the field 20

Communicating Specifications Importers and manufacturers must have a clear understanding of exactly which standards need to be met n Itemize the mandatory standards that apply n Specify consensus standards and other safety requirements n Foreign manufacturers/suppliers should insist on a list of which mandatory and consensus standards apply n 21

Some Products Require Certification n Section 14 of the Consumer Product Safety Act requires certification of some consumer products n Under this law, which dates from 1972, the term “certification” has a different meaning than it does in recent international usage n Certification under section 14 is more like a “supplier’s declaration of conformity” 22

Which CPSC Standards Currently Require Certification? Section 1201 architectural glazing n Section 1202 matchbooks n Section 1203 bicycle helmets n Section 1205 walk-behind power lawn mowers n Section 1210 cigarette lighters n Section 1212 multipurpose lighters n Section 1213 bunk beds n Others n More in the future possible – stay current! n 23

Who Must Certify? n Section 14 applies to “every manufacturer” of a product that is subject to a CPSA standard [it does not apply to bans or to standards/bans under other Acts implemented by CPSC] n The term “manufacturer” includes each U. S. importer of a product as well as the original manufacturer (unless exempted by CPSC rule) n Section 14 also applies to a private labeler if the product bears a private label 24

What Does Certified Mean? Section 14 requires the issuance of a certificate n Must certify that the product conforms to all applicable consumer product safety standards n Must specify any standard that is applicable n Must accompany the product or otherwise be given to any distributor or retailer of the product n Must state the name of the issuer and include the date and place of manufacture n 25

Basis for Certification Each certificate must be based on a test of each product or a reasonable testing program n The Commission may prescribe reasonable testing programs for products requiring certification n Any test or testing program may be conducted by a qualified, independent third party, but the Commission cannot require third-party testing n 26

Failure to Certify Imports n Section 17 of the Consumer Product Safety Act states that a product offered for importation “shall be refused admission” if it is not accompanied by a certificate required by section 14 27

Certification Violations CPSA Section 19(a)(6) makes it unlawful for any person either n to fail to furnish a certificate required by section 14; or n to issue a false certificate if the issuer has reason to know it is false or misleading in any material respect n Knowing violations of section 19 are subject to civil penalties; knowing and willful violations are subject to criminal penalties n 28

Certification Under Other Statutes n The new Standard for the Flammability (Open Flame) of Mattress Sets contains its own certification requirement [ § 1633. 12(a)(6) ] n Advance Notice of Proposed Rulemaking for Fireworks discusses the possibility of adding a certification requirement 29

Expansion of Mandatory Certification Is Likely n Bills pending in Congress could make certification requirements applicable to other products, particularly toys n Importers and their suppliers must perform due diligence 30

Other Certification Requirements n Third-party certification may be required by others for imported products n For example, some States require certification of electrical products by recognized organizations like UL, CSA, ETL n Retailers may require certification for certain products they sell 31

Voluntary Third-Party Certification n Certification by an independent third party is meaningful in many settings n CPSC takes certification into account in sampling products for testing (e. g. , AFSLtested fireworks are generally sampled less frequently) n Failure to comply with consensus standards can create problems in product liability suits n Consumers recognize and buy safer products 32

Testing n Importers and suppliers should make sure that products meet all CPSC standards at a minimum n To avoid problems, samples should be tested randomly, early and often n The cost of testing is a tiny fraction of the costs associated with recalls and violations 33

Market Surveillance n Make sure you have a system for keeping track of consumer complaints involving products in which you trade n Pay attention to information from the CPSC Clearinghouse [www. cpsc. gov] and reports from your retailers n Early identification of problems can avoid bigger problems 34

Reporting n Importers must report to the CPSC immediately if they learn that one of their products does not comply with a mandatory standard or ban under the Consumer Product Safety Act 35

Reporting n Failure to comply with a mandatory standard or ban under other laws administered by the CPSC may constitute a reportable defect n Failure to meet consensus voluntary standards may make a product defective and require a report to CPSC 36

Reporting Wisely n Don’t assume that an incident without injury means there’s no problem n Do evaluate product failures to determine what could have occurred in worst case n Don’t wait to finish exhaustive investigation before telling CPSC 37

Corrective Action n The CPSA provides for three alternative remedies in the case of the recall of a product that creates a substantial product hazard 10: n. Repair n. Replacement n. Refund of purchase price 10 15 U. S. C. § 2064(d) 38

Corrective Action n Not every safety issue requires a recall, but it is important to learn from mistakes and prevent the same problems from happening again 39

Preventive Action n Preventive action is better than corrective action, for everyone n Importer / Supplier must work as a team. Everyone wins or everyone loses. 40

FACTORS OF CONFORMITY Pa Z q e Conformity With Export Market Safety Standards

FACTORS OF CONFORMITY Pa Z q e Pa = Pressure (production relative to capacity)

FACTORS OF CONFORMITY Pa Z q e Z = Deviation potential (local or 3 rd country standards relative to export market standards)

FACTORS OF CONFORMITY Pa Z q e q = Quality oversight (level of supply chain quality management)

FACTORS OF CONFORMITY Pa Z q e e = Enforcement (level of regulatory enforcement, including penalty )

FACTORS OF CONFORMITY Pa Z q e Conformity With Export Market Safety Standards

Questions? Office of International Programs Richard O’Brien, Director robrien@cpsc. gov 47