When it comes to understanding government regulations the devil is in the details, and the recently enacted Consumer Product Safety Improvement Act of 2008 (H.R. 4040) (the “Act”) details additional product certification regulations that manufacturers, private labelers and importers of consumer fireworks need to be aware of. Some background information is appropriate.
As a response to findings of lead (and other banned substances) in various consumer products, particularly children’s toys manufactured overseas—indeed, the first section of the Act, § 101, governs children’s products containing lead and lead paint—Congress acted expansively. Instead of limiting the regulations to only toys, the Act affects virtually every imported consumer product and, consequently, it is recommended that you discuss the impact of the Act with legal counsel.
The story begins with section 2066 of the United States Code (“U.S.C.”). It provides, in pertinent part: “Any consumer product offered for importation into the customs territory of the United States shall be refused admission into such customs territory if such product—
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fails to comply with an applicable consumer product safety rule;
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is not accompanied by a certificate required by section 2063 of this title, or is not labeled in accordance with regulations under section 2063 (c) of this title;
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Title 15, Chapter 47, § 2066
The language of section 2066 is absolute, in that it encompasses every product imported, without discrimination; thus, by default, consumer fireworks are within its purview (because section 2066 (1) and (2) operate independently of each other; even products not subject to a product safety rule are not excused from the Act).
Since section 2066 ‘incorporates by reference’ section 2063 and 2063 (c) manufacturers, private labelers and importers of consumer fireworks also need to consider section 2063, entitled ‘Product certification and labeling’, to the extent that it describes the standards to be complied with prior to the issuance of any applicable certificate; for purposes of completeness, section 2052 contains an extremely broad definition of ‘consumer products’ that, inferentially, includes consumer fireworks.
Newly-enacted section 102(g) of Act adds certification standards to section 2063’s prevailing standards. To summarize, Section 102(g) now requires, “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 [in English, and for three years].”
Plainly, the Act makes significant additions to current certification standards, and all manufacturers, private labelers and importers of consumer fireworks need to respond immediately since the Act is enforceable on all products manufactured on or after November 12, 2008. Going forward, all certificates will disclose, in plain English, the place and date of manufacture, as well as the name, address and telephone number of the manufacturer and importer, and contact information regarding the custodian of the testing records (that are to be maintained for at least three years). Presently, the testing may be performed in-house subject to a standard of reasonableness; notably, the Act imposed mandatory third party testing which means that it could be broadened to consumer fireworks if necessary.
The Act does permit an importer to rely upon the testing results of the manufacturer if the importer is a United States resident, or has a U.S. resident agent (yet another reason for all non-resident importers to establish a presence in the United States); otherwise, the importer must independently certify a product’s conformity with applicable CPSC regulations.
A certification must accompany each shipment and, where shipments of multiple products are involved, a separate certification is needed for each product. Also, copies of the certifications shall be provided to each distributor and retailer of the specified product.
Those manufacturers, private labelers and importers that neglect to issue certificates that conform to section 102(g) (together with the shipping documents that ordinarily accompany a shipment) risk refusal of the shipment on the presumption that, lacking the requisite certificate, the product fails to comply with all prevailing standards.
As a deterrent, civil penalties up to $15 million may be imposed for violations arising under the Act, such as failure to provide a certificate or the issuance of a false certification. Also, whistleblower protection is expressly provided in the Act, providing a strong incentive to report violations of the Act.
