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

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

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. Consumer Product Safety Commission U.S. Consumer Product Safety Commission Department of Transportation Department of Transportation Department of Commerce Department of Commerce Environmental Protection Agency Environmental Protection Agency Department of Agriculture Department of Agriculture

4 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 U.S. Food and Drug Administration Department of Homeland Security Department of Homeland Security Federal Communications Commission Federal Communications Commission Department of Energy Department of Energy Some States Some States

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

6 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)

7 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 Alcoholic beverages, tobacco, firearms and explosives (BATFE) Alcoholic beverages, tobacco, firearms and explosives (BATFE) Motor vehicles and equipment (NHTSA) Motor vehicles and equipment (NHTSA) Pesticides (EPA) Pesticides (EPA) Aircraft (FAA) Aircraft (FAA) Boats (Coast Guard) Boats (Coast Guard) Food and drugs (USDA and FDA) Food and drugs (USDA and FDA) Occupational products (OSHA) Occupational products (OSHA) Fixed-site amusement park rides (State jurisdiction) 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)

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

9 Other Jurisdictional Issues Manufacturers, distributors and retailers: all equally responsible and liable under the acts 4 (but common carriers are specifically excluded) 5 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 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 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)

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

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

12 Standards Exist to Prevent… Reporting Requirements 10 Manufacturers, retailers and distributors must report immediately to the Commission if they obtain information which reasonably supports the conclusion that the product: Manufacturers, retailers and distributors must report immediately to the Commission if they obtain information which reasonably supports the conclusion that the product: contains a defect which could create a “substantial product hazard,” or contains a defect which could create a “substantial product hazard,” or creates “an unreasonable risk of serious injury or death.” 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)

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

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

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

16 CPSC Mandatory Toy Standards Title 16 CFR, Part: 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 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 Test methods for simulating use and abuse of toys and other articles intended for use by children Test methods for simulating use and abuse of toys and other articles intended for use by children Test methods for simulating use and abuse of toys and other articles intended for use by children 18 months of age or less Test methods for simulating use and abuse of toys and other articles intended for use by children 18 months of age or less 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 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.

17 CPSC Mandatory Toy Standards Title 16 CFR, Part: 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 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 Exemptions from classification as banned hazardous substances Exemptions from classification as banned hazardous substances Exemptions from classification as a banned toy or other banned article for use by children Exemptions from classification as a banned toy or other banned article for use by children Labeling requirements; prominence, placement, and conspicuousness Labeling requirements; prominence, placement, and conspicuousness Guidance for lead (Pb) in consumer products Guidance for lead (Pb) in consumer products Guidance for hazardous liquid chemicals in children's products Guidance for hazardous liquid chemicals in children's products Requirements for electrically operated toys or other electrically operated articles for use by children 1505 Requirements for electrically operated toys or other electrically operated articles for use by children

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

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

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

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

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

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

24 Who Must Certify? 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] 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] The term “manufacturer” includes each U.S. importer of a product as well as the original manufacturer (unless exempted by CPSC rule) The term “manufacturer” includes each U.S. importer of a product as well as the original manufacturer (unless exempted by CPSC rule) Section 14 also applies to a private labeler if the product bears a private label Section 14 also applies to a private labeler if the product bears a private label

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

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

27 Failure to Certify Imports 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 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

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

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

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

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

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

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

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

35 Reporting 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 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

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

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

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

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

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

FACTORS OF CONFORMITY PaZ qe Conformity With Export Market Safety Standards

FACTORS OF CONFORMITY PaZ qe Pa = Pressure (production relative to capacity)

FACTORS OF CONFORMITY PaZ qe Z = Deviation potential (local or 3rd country standards relative to export market standards)

FACTORS OF CONFORMITY PaZ qe q = Quality oversight (level of supply chain quality management)

FACTORS OF CONFORMITY PaZ qe e = Enforcement (level of regulatory enforcement, including penalty )

FACTORS OF CONFORMITY PaZ qe Conformity With Export Market Safety Standards

47 Questions? Office of International Programs Richard O’Brien, Director Richard O’Brien,