The House passed the conference committee report version of H.R.4040, the Consumer Product Safety Improvement Act, on July 30, 2008.  The Senate passed it on July 31, 2008.  The President signed the bill into law on August 14, 2008 as Public Law 110-314.

Passage is the culmination of a long process for this legislation.  Different versions of the bill were passed by each of the chambers earlier in this Congress.  The House approved its version on December 19, 2007.  A different version of the bill was approved by the Senate on March 6, 2008 by a 79-13 margin.  A conference committee engaged in extensive negotiations that produced the final compromise that incorporated aspects of both versions and modified some other aspects.


The U.S. Consumer Product Safety Commission (CPSC) has jurisdiction over about 15,000 types of consumer products. The CPSC draws its authority from five statutes: the Consumer Product Safety Act (CPSA); the Federal Hazardous Substances Act (FHSA), the Flammable Fabrics Act (FFA), the Poison Prevention Packaging Act (PPPA), and the Refrigerator Safety Act, (RSA).  The CPSA and FHSA are the most frequently invoked authorities.

The CPSA, enacted in 1972, establishes the CPSC, defines its basic authority, and provides that when the CPSC finds an unreasonable risk of injury associated with a consumer product it can develop a standard to reduce or eliminate the risk.  The CPSA also provides the authority to ban a product if there is no feasible standard, and it gives CPSC authority to pursue recalls for products that present a substantial product hazard.

The FHSA requires that certain hazardous household products ("hazardous substances") bear cautionary labeling to alert consumers to the potential hazards that those products present and to inform them of the measures they need to take to protect themselves from those hazards.  Any product that is toxic, corrosive, flammable or combustible, an irritant, a strong sensitizer, or that generates pressure through decomposition, heat, or other means requires labeling.  If the product may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonable foreseeable handling or use, including reasonable foreseeable ingestion by children, labeling is required.

The FHSA gives the CPSC authority to ban by regulation a hazardous substance if it determines that the product is so hazardous that the cautionary labeling required by the act is inadequate to protect the public.  Any toy or other article that is intended for use by children and that contains a hazardous substance is also banned under the FHSA if a child can gain access to the substance.  In addition, the act gives the CPSC authority to ban by regulation any toy, or other article intended for use by children, which presents a mechanical, electrical, or thermal hazard.


Under the CPSA, there are three principal reporting requirements. Any manufacturer, importer, distributor, or retailer of consumer products must notify CPSC immediately if it could be concluded that one of its products: (a) has a defect that creates a substantial risk of injury to the public; (b) creates an unreasonable risk of serious injury or death; or (c) violates a consumer product safety standard or ban of the product.  A manufacturer must report to CPSC when any of its consumer products has been involved in three or more lawsuits in a two-year period. Each lawsuit must have alleged death or grievous bodily injury and resulted in a settlement or a court judgment in favor of the person who filed the suit.  A manufacturer, distributor, retailer, or importer of marbles, small balls, latex balloons, or toys or games that contain such items must report to CPSC any incidents of children choking on those items.

The National Electronic Injury Surveillance System, (NEISS) monitors patients who come into 100 hospital emergency rooms nationwide.  From it, the CPSC develops statistical estimates of product-related injuries.  Last year the NEISS system developed reports on product-related injuries from over 360,000 emergency room visits.


In addition to acting on the reports required by the law, the CPSC enforces existing regulations and laws by conducting both domestic surveillance through inspections of the regulated industry and import surveillance at ports of entry and by following up on injury reports, consumer complaints, trade complaints, or other allegations or indications that a firm is manufacturing or distributing a consumer product not in compliance with the law.

Under the CPSA, any person who knowingly violates the CPSA is subject to a civil penalty not to exceed $8,000 for each such violation.  Under the FHSA, the CPSC may seek a civil penalty of up to $8,000 per violation product, up to a maximum of $1.825 million for any related series of violations.  There are criminal penalties and the CPSC can seek injunctive relief or seize products.

Where appropriate, based on the nature of the hazard and the likelihood of injury associated with the non-complying product, the CPSC staff will request that the firm recall the product from the marketplace, including from consumers who already own the product.  It may provide for the return of a product to the manufacturer or retailer for a cash refund or a replacement product; for the repair of a product; and/or for public notice of the hazard.

Once the CPSC staff determines a product violates a specific statute or regulation, CPSC compliance staff generally notifies the responsible firm (the product manufacturer, importer, distributor, or retailer). Notification to the responsible firm is usually in the form of an official letter, referred to as a Letter of Advice (LOA).

While the CPSC has the authority to require a mandatory product recall, due to the lengthy and costly nature of the proceeding that it must undertake in order to issue such a recall, the majority of the recalls are voluntary on the part of the recalling firm, the details of which the CPSC negotiates with that firm, generally after a significant exchange of information between the firm and the CPSC.

Approximately half of the recalls are initiated under a “Fast Track” recall program.  Under this program the subject firm agrees to initiate a recall within 20 days after being contacted by the CPSC, generally in exchange for the lack of a formal finding by the CPSC that a product is defective and a substantial product hazard exist.

In fiscal year 2006, the CPSC announced 466 recalls of defective products, representing over 120 million individual products.  Other corrective actions, short of a recall, including modifying the product, issuing a consumer warning, or through other means, were ordered for over 300 products directly involving a risk of injury to children.

Import Safety

The United States currently imports approximately $2 trillion worth of products annually from more than 150 countries.  In Fiscal Year 2006, more than half of all imports to the United States originated from five countries: Canada ($304 billion), China ($275 billion), Mexico ($192 billion), Japan ($143 billion), and Germany ($86 billion).


The Consumer Product Safety Improvement Act of 2008 (CPSIA) represents a dramatic change of course both in terms of regulatory and enforcement philosophy, and a significant enhancement of the role of the Consumer Product Safety Commission in regulating the manufacture and sale of consumer products.

While much of the attention has been focused on the safety of children’s products in general, and lead and phthalates in children’s products, there are also provisions that apply to most consumer products.  The following summary is not all-inclusive.  There are many details relating to the regulatory process that we have not included.  There are provisions related to the funding and structure of the CPSC which we have not included.  There are also provisions related to specific products.


Public Database

The CPSC shall establish and maintain a database on the safety of consumer products, and other products or substances regulated by the CPSC, which is publicly available, searchable, and accessible through the Internet website of the CPSC.  The database shall contain reports of harm relating to the use of consumer products, and other products or substances regulated by the CPSC, that are received by the CPSC from consumers; local, State, or Federal government agencies; health care professionals; child service providers; and public safety entities.  It will also include information derived from the CPSC’s own corrective action programs.

Supply Chain Identification

Under the CPSIA, if the CPSC asks for it, every importer, retailer, or distributor of a consumer product (or other product or substance over which the CPSC has jurisdiction under the CPSIA or any other Act) shall identify the manufacturer of that product by name, address, or such other identifying information to the extent that such information is known or can be readily determined by the importer, retailer, or distributor.

Every manufacturer shall identify by name, address, or such other identifying information each retailer or distributor to which the manufacturer directly supplied a given consumer product (or other product or substance over which the CPSC has jurisdiction under the CPSIA or any other Act) as well as each subcontractor involved in the production or fabrication of such product or substance and each subcontractor from which the manufacturer obtained a component thereof.


The maximum civil penalties that the CPSC can assess are increased to a maximum of $100,000 for a violation and a maximum of $15 million for a series of related violations.

Recall and Corrective Actions

The CPSC has been given “enhanced” authority regarding recalls and corrective actions.  Congress has specified what it wants included in recall notices.

State Attorneys General

State Attorneys General have been given new rights to initiate injunctive actions in federal courts.

Whistleblower Protections

No manufacturer, private labeler, distributor, or retailer, may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee's initiative or in the ordinary course of the employee's duties (or any person acting pursuant to a request of the employee):

  • provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of the CPSIA or any other Act enforced by the CPSC, or any order, rule, regulation, standard, or ban under any such Acts;
  • testified or is about to testify in a proceeding concerning such violation;
  • assisted or participated or is about to assist or participate in such a proceeding;
  • objected to, or refused to participate in any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of the CPSIA or any other Act enforced by the CPSC, or any order, rule, regulation, standard, or ban under any such Acts.

A “whistleblower” would pursue a complaint through an administrative process that involves the U.S. Department of Labor and a court appeals process is provided.  Relief could include all relief necessary to make the employee whole, including injunctive relief and compensatory damages, including reinstatement with the same seniority status that the employee would have had, but for the discharge or discrimination; the amount of back pay, with interest; and compensation for any special damages sustained as a result of the discharge or discrimination, including litigation costs, expert witness fees, and reasonable attorney's fees.


The pre-emption issue is a complicated one and there remain various schools of thought regarding exactly what state laws might or might not be pre-empted.  The CPSIA does provide that the law known as Proposition 65 in California is specifically not pre-empted: “Nothing in this Act or the Federal Hazardous Substances Act shall be construed to pre-empt or otherwise affect any warning requirement relating to consumer products or substances that is established pursuant to State law that was in effect on August 31, 2003.”


The process of understanding the requirements of the CPSIA as they apply to children’s products must begin with the definition.  The term “children's product” means a consumer product designed or intended primarily for children 12 years of age or younger.  In determining whether a consumer product is primarily intended for a child 12 years of age or younger, the following factors shall be considered:

  • A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.
  • Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.
  • Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
  • The Age Determination Guidelines issued by the CPSC


Any children's product that contains more lead than the limit established by the CPSIA shall be treated as a banned hazardous substance under the existing Federal Hazardous Substances Act (FHSA).  Beginning on February 10, 2009, the lead limit will be 600 parts per million (ppm) total lead content by weight for any part of the product.  Beginning on August 14, 2009, the lead limit will be 300 ppm total lead content by weight for any part of the product.  Beginning on August 14, 2011, the level will be lowered to 100 ppm, unless the CPSC determines that a limit of 100 ppm is not technologically feasible for a product or product category.  The CPSC may make such a. determination only after notice and a hearing and after analyzing the public health protections associated with substantially reducing lead in children's products.

The CPSC may, by regulation, exclude a specific product or material from the prohibition if the CPSC, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product; nor have any other adverse impact on public health or safety.

The lead limits established shall not apply to any component part of a children's product that is not accessible to a child through normal and reasonably foreseeable use and abuse of such product, as determined by the CPSC.  A component part is not subject to the lead limits if such component part is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product.  Reasonably foreseeable use and abuse shall include swallowing, mouthing, breaking, or other children's activities, and the aging of the product.  Paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate inaccessible to a child, or to prevent absorption of any lead into the human body, through normal and reasonably foreseeable use and abuse of the product.

By August 14, 2009, the CPSC shall promulgate a rule providing guidance with respect to what product components, or classes of components, will be considered to be inaccessible.

If the CPSC determines that it is not technologically feasible for certain electronic devices, including devices containing batteries, to comply with the lead limits, the CPSC, by regulation, shall issue requirements to eliminate or minimize the potential for exposure to and accessibility of lead in such electronic devices, which may include requirements that such electronic devices be equipped with a child-resistant cover  or casing that prevents exposure to and accessibility of the parts of the product containing lead.

Effective August 14, 2009, the limit for lead in paint is .009 percent.


Testing and Certification

Before importing for consumption, warehousing, or distributing in commerce any children's product that is subject to a children's product safety rule, every manufacturer of such children's product (and the private labeler of such children's product if such children's product bears a private label) shall submit sufficient samples of the children's product, or samples that are identical in all material respects to the product, to a third-party accredited conformity assessment body to be tested for compliance with such children's product safety rule; and based on such testing, issue a certificate that certifies that such children's product complies with the children's product safety rule based on the assessment of a third-party conformity assessment body accredited to conduct such tests.

A manufacturer or private labeler shall issue either a separate certificate for each children's product safety rule applicable to a product or a combined certificate that certifies compliance with all applicable children's product safety rules, in which case each such rule shall be specified.

Every certificate required by law shall identify the manufacturer or private labeler issuing the certificate and any third-party conformity assessment body on whose testing the certificate depends.  The certificate shall include, at a minimum, the date and place of manufacture, the date and place where the product was tested, each party's name, full mailing address, telephone number, and contact information for the individual responsible for maintaining records of test results.

Every certificate required by law shall be legible and all content required shall be in the English language.  A certificate may also contain the same content in any other language.  Every certificate shall accompany the applicable product or shipment of products covered by the same certificate and a copy of the certificate shall be furnished to each distributor or retailer of the product.

The CPSIA sets forth a framework for accreditation, what constitutes third-party testing, and various other aspects of the testing and certification process.  It also establishes a process for the adoption of mandatory standards for specific toys including the interim adoption of ASTM International Standard F963-07 Consumer Safety Specifications for Toy Safety (ASTM F963) as a mandatory standard.

The CPSIA sets forth a timetable for establishing accreditation requirements for various product categories.  For example, not later than December 12, 2008, the CPSC shall publish notice of the requirements for accreditation of third-party conformity assessment bodies to assess conformity with the requirements of the CPSIA with respect to children's metal jewelry.

The CPSC will be required to establish protocols and standards:

  • for ensuring that a children's product tested for compliance with an applicable children's product safety rule is subject to periodic testing, when there has been a material change in the product's design or manufacturing process, including the source of component parts.
  • for the testing of random samples to ensure continued compliance.
  • for verifying that a children's product tested by a conformity assessment body complies with applicable children's product safety rules.

Tracking Labels

Effective August 14, 2009, the manufacturer of a children's product shall place permanent, distinguishing marks on the product and its packaging, to the extent practicable, that will enable:

  • the manufacturer to ascertain the location and date of production of the product, cohort information (including the batch, run number, or other identifying characteristic), and any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks;
  • the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).

Advertising for Toys and Games

Any advertisement by a retailer, manufacturer, importer, distributor, or private labeler (including advertisements on Internet websites or in catalogs or other printed materials) that provides direct means for the purchase or order of a product for which a cautionary statement is required by law shall include the appropriate cautionary statement displayed on or immediately adjacent to that advertisement,


Beginning on February 10, 2009, it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children's toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP).

There will be an interim prohibition on other phthalates until the CPSC decides whether they should be exempt.  Beginning on February 10, 2009, and until the CPSC decides otherwise, it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children's toy that can be placed in a child's mouth or child care article that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).


There are many regulatory projects the CPSC must take on to fill in many of the details.  In addition, there is almost certain to be legal challenges to interpretations of the law.




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