We all understand by now that the Consumer Product Safety Improvement Act (CPSIA) implements new regulations and standards for lead content, lead paint, coatings, and inks used in toys and other products intended for children. We understand who is regulated by the new rules and the liability they face should they be cited for a violation.
The opinions expressed in this piece are the author’s and do not necessarily represent those of Product Safety Forum.
Product Safety Forum is a free service of Product Safety Letter. Its mission is twofold: to promote frank and open airing of product safety issues and to provide advice and guidance from top experts in the field.
Do you have an idea or article you think would make a great piece for Product Safety Forum, including commentary or reaction to this one? Then email Publisher Sean Oberle to discuss it..
Or do we? Where do these lines get drawn? Are DVDs and storage media devices subject to the same standards as toys and juvenile products intended for use by children? What about library books? It seems unlikely that the Consumer Product Safety Commission (CPSC) will make it a high priority to track down consumers who unknowingly sell recalled products at garage sales. But the general public, as well as the manufacturing community, still need clarification.
There is a lot of speculation, but so far very little clarity about what these new regulations mean for businesses and consumers alike. There is every indication that the CPSC will use restraint and common sense when enforcing the grey areas of the law. But the CPSC isn’t the only enforcing group that manufacturers need be wary of. While the CPSC may use judicial restraint and not go after unsuspecting companies and industries for violations until there is clarification, large retailers seem to be holding their vendors to higher standards already.
There is also the risk that individual state attorneys general may decide to enforce the new law more vigorously than the CPSC. Further, we can expect consumers and consumer advocacy groups to actively encourage both attorneys general and plaintiffs’ attorneys to hold manufacturers and retailers accountable for consumer safety issues, including those covered by the CPSIA. These groups can file class action lawsuits against businesses for violations of the CPSIA, potentially resulting in significant financial burden and brand damage.
The CPSIA is an expansive act that can affect businesses in countless ways. It is critical that companies focus on those aspects of the new rules which can be most detrimental to their brands and bottom line. At the top of the list, businesses can expect the CPSC to enforce recalls aggressively. It will be increasingly critical for companies to effectively execute recalls from beginning to end.
Thanks to the CPSIA, selling recalled goods is now a strictly prohibited act across the board, and violating this rule could mean severe fines and legal actions for all parties involved. Losing track of just a few recalled product units could spell trouble for both the manufacturer and retailer. While not the only parties at risk, the onus is on the manufacturer to effectively execute a recall should the need arise. But what does that really mean?
It is up to the manufacturer to account for every unit of affected product, remove it permanently from commerce, and dispose of it properly in accordance with local and federal regulations. As such, it is critical that companies develop ways to track their products throughout the distribution and sales chain. If a recall is required, manufacturers need to know precisely how to track affected products and remove them from the market.
But that is only half the battle. Manufacturers can also expect the CPSC to be more involved with monitoring product destruction. Of increasing importance to the agency is that recalled consumer goods be destroyed in an environmentally friendly way and in compliance with local and federal regulations.
As companies seek clarification of the new rules and prepare to deal with the new requirements they face, it is crucial to remember that they are not alone. They should actively raise concerns about the CPSIA with their industry associations. These groups have already been requesting clarification on behalf of their members and are expecting answers in the coming weeks. Several associations are even lobbying Congress to force the clarification they need.
The Media & Entertainment Services Alliance, the American Apparel and Footwear Association, and the American Library Association are just three of the groups seeking clarification from the CPSC about the extent to which the federal law applies to their industries. Understandably, everyone is trying to get prepared for the new requirements in order to protect consumers from harmful products and their businesses from increased penalties associated with noncompliance.
For small businesses, however, lobbying cycles are likely less effective. Instead, small businesses should be sure to tell their story by going to their Congressional representatives to explain the hardships created by unintended consequences of the law.
The CPSC is inundated by proposals for clarifications. Likewise there are a number of proposals pending before Congress that focus on the economic impact of the regulations and the unintended consequences of the new law. There are also proposals seeking clarification in relation to the thrift store act and the certification of toys. The CPSC’s list of “Frequently Asked Questions” about the CPSIA continues to grow.
The Chairman, Commissioners, and CPSC staff are working hard to review the vast number of proposals for clarification of the rules and making every effort to respond to questions raised.
Congress has dictated that the CPSC offer a proposed rule clarifying issues regarding the CPSIA, including the economic impact of the regulations and unintended consequences of the Act, no later than November 15, 2009. The rule is expected to be final in January and will probably be effective six months later. This should allow the CPSC to lift the stay of enforcement by next February.
It is critical that companies that make or sell consumer products intended for use by children take a long hard look at the CPSIA. It is important that, to the extent possible, businesses prepare for the changes now, rather than face a “bet the company” situation in 2010.
David Schmeltzer is a consultant with ExpertRECALL™. Mr. Schmeltzer was the Director of Compliance at the Consumer Product Safety Commission for 20 years. There he supervised the enforcement of the Commission regulations, monitored investigations of potentially dangerous consumer products, negotiated voluntary corrective actions to address hazards and assessed civil penalties for violations of CPSC’s laws and regulations. David Schmeltzer can be reached at (301) 656-8377. ExpertRECALL can also be contacted at (317) 275-7562 or via email at asktheexperts@stericycle.com.
E-Mail This Article
Printer-Friendly Version