CPSC Posts Draft Guidance Document on CPSIA Testing And Certification Requirements – Silent On Products Subject to the PPPA’s Child-Resistant Packaging Requirements

By Anne Marie Murphy –

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”) made significant changes to the laws enforced by the Consumer Product Safety Commission (“CPSC”).  CPSIA Section 102 amended the Consumer Product Safety Act (“CPSA”) to require that manufacturers certify that their products are in compliance with any applicable CPSC rule, standard, or ban.  In February of this year, citing industry confusion as to which testing and certification requirements apply to which products, the CPSC announced a one-year stay of enforcement of the CPSIA testing and certification requirements.  Unless extended by the CPSC, the stay of enforcement will expire about three months from now in February 2010.

Yesterday, the CPSC posted on its website a draft guidance document that explains the two types of certification of compliance required by CPSIA: a general conformity certificate, based on a reasonable testing program; and, for children’s products, a certificate based on CPSC-recognized third-party testing.  Previously, the CPSC has taken the position that the general conformity certification requirement applies broadly to any product subject to a CPCS rule, standard, or ban, including for example any product that requires child-resistant packaging under the Poison Prevention Packaging Act (“PPPA”).  In December 2008, CPSC posted Frequently Asked Questions (“FAQs”) that specifically address how the certification requirement would apply to PPPA products.  

The new guidance document, which has been sent to the Commissioners for their vote, however makes no mention of PPPA products.  The CPSC will hold a public meeting on Monday November 9, 2009 to discuss the document.  We will attend the meeting and report back any significant developments.