A scary trend is on the way, which may become a nightmare for customs and trade compliance professionals. The trend can lead to a job loss because those professionals may not be able to explain why their products were seized. This phenomenon is called “substantial product hazard” enforcement. This is a joint CBP-CPSC program, which resulted in publications of articles by CBP, including “CBP Stops Thousands of Unsafe Hair Dryers” and “CBP Turns Off Importation of Unsafe Holiday Lights.” In the case of hair dryers, CBP states the reason for seizure was because the hair dryers “were determined to constitute a ‘substantial product hazard’ under U.S. law, for failing to have adequate immersion protection.” This notice is a warning to trade compliance folks dealing with consumer goods that “substantial product hazard” prong is yet another check list on their ever-growing regulatory product review plate. Substantial product hazard is defined in Sec. 15(a) of the Consumer Product Safety Act, 15 U.S.C. 2064(a), as well as, 16 C.F.R. 1115.2. The regulation states that the product will become a “substantial product hazard” if it fails to comply with “applicable consumer product safety rule.” 16 C.F.R. 1115.2(a)(1). Well, that is helpful, because the rules are somewhat concrete, and…
Consumer Product Safety Commission (CPSC) administers Poison Prevention Packaging Act pursuant to 15 U.S.C. §§ 1471-1476, 16 CFR Subchapter E; §§ 1700 – 1702. CPSC, broadly speaking, provides regulation standards for the special packaging of any household substance that the Commission finds pose degree or nature of the hazard to children in the availability of such substance, by reason of its packaging, is such that special packaging is required to protect children from serious personal injury or serious illness resulting from handling, using, or ingesting such substance. If the product fits the scope above, then the importer and/or the person placing the product in the United States commerce is subject to certain labeling and packaging requirements. Specifically, the statement “This Package for Households Without Young Children” shall appear conspicuously on the package of any household substance subject to the special packaging requirements that is supplied in noncomplying packaging, unless the package bears the substitute labeling statement (see Sec. 1700.5(a) for details). Substitute statement “Package Not Child-Resistant” may be used (see Sec. 1700.5(b) for details). Also, the packaging must conform to the requirements under Sec. 1700.15.
Read More Product Compliance Requirements under Poison Prevention Packaging Act
Office of General Counsel Advisory Opinions List of Regulated Products Recalls and Safety News Voluntary Standards
Under the Flammable Fabrics Act, CPSC can issue mandatory flammability standards. Standards have been established for the flammability of clothing textiles, vinyl plastic film (used in clothing), carpets and rugs, children’s sleepwear and mattresses and mattress pads. The importer, at the time of importation, executes and furnishes to the U.S. Customs and Border Protection an affidavit stating: These fabrics (or articles of wearing apparel) are dangerously flammable under the provisions of section 4 of the Act, and will not be sold or used in their present condition but will be processed or finished by the undersigned or by a duly authorized agent so as to render them not so highly flammable under the provisions of section 4 of the Flammable Fabrics Act, as to be dangerously flammable when worn by individuals. The importer agrees to maintain the records required by 16 CFR 1610.39(c)(1). Textile Classes: Class 1 textiles, those that exhibit normal flammability, are acceptable for use in clothing. §1610.4(a)(1) & (2). Class 2 textiles, applicable only to raised-fiber surfaces, are considered to be of intermediate flammability, but may be used in clothing. §1610.4(b)(1) & (2). Class 3 textiles, those that exhibit rapid and intense burning, are dangerously flammable and…
Consumer Product Safety Commission: General Observations on Scope, Jurisdiction, and Effect on Trade
The scope of Consumer Product Safety Commission authority is broadly established to extend to any consumer product from which the risk of injury could occur (see 16 CFR 1145.1). Legal authority includes: Consumer Product Safety Improvement Act Consumer Product Safety Act (15 U.S.C. §§ 2051-2084 (CPSA); 16 CFR Subchapter B Sections 1101 – 1412) Federal Hazardous Substances Act (15 U.S.C. §§ 1261-1278; 16 CFR Subchapter C; Sections 1500 – 1513) Flammable Fabrics Act (15 U.S.C. §§ 1191-1204; 16 CFR Subchapter D; §§ 1602 – 1633) Poison Prevention Packaging Act (15 U.S.C. §§ 1471-1476; 16 CFR Subchapter E; §§ 1700 – 1702) Importers and/or persons selling the product in the United States are required to certify their compliance. Certification requirements broadly apply to “all products subject to CPSA bans as well as standards, or to any “similar rule, ban, standard, or regulation under any other Act enforced by the Commission.” Unless an exception applies, both importer and manufacturer are required to certify. This flyer, made available by Sandler, Travis & Rosenberg, while a little outdated at this point, nonetheless provides a good idea on conformity certification applicability.
The editor of this blog would like to make a correction to the statement posted few days ago about CBP/CPSC joint webinar presentation. In the blog notice, it was stated that “one cannot make any specific conclusions about CPSC / CBP cooperation procedural applications to its business.” That is incorrect statement. Procedurally, notices of detention will come not from CBP pursuant to 19 USC 1499, but rather from CPSC pursuant to CPSIA of 2008. CBP will still act as a custodian (i.e. it will hold on to the goods, until CPSC gives a green light), but the importer will need to deal with CPSC officials before asking CBP officials to release the goods. According to CBP/CPSC MOU, CBP offices will be staffed with CPSC personnel (“CPSC has dedicated employees serving at 10 of the biggest ports of entry alongside CBP inspectors”), so on the surface it may look like communication is done with one entity. It is not. Read “Procedural Changes for Shipments Detained for Product Safety Violations“, and “CPSC to Begin Issuing Import Detention Notices instead of Customs” for further acquaintance with the matter.
CBP posted a 06/08/10 webinar slides of CPSC presentation. Overall, the slides appeared to create a joint statement, by both agencies, to cooperate with one another. General procedural policies, as applied to CPSC, appear to be in the same application line as with FDA, but not with USDA. That observation is based on the fact of “conditional merchandise release” under CBP bond pending results of examination. Perhaps, most interesting part of presentation relates to CPSC sampling methodology. Unfortunately, CPSC went no further than to site statutory authority 15 USC 2066 and 15 USC 1273. Nothing in the slides mentions how will CPSC will apply the Congressional authority in practice (perhaps, because CPSC is not quite certain about the application itself). Overall, the presentation is dissapointing from the point of view of practitioner, because one cannot make any specific conculsions about CPSC / CBP cooperation procedural applications to its business.
Rationality of phalates requirement of PL 110-314, Sec. 108(a) is discussed in CBS 60 Minutes presentation “Phalates: Are they safe?” aired on May 23, 2010. The video is available at this link. CBS concludes that dangers posed by phalates (decreased male masculinity) is questionable at best due to mixed results of animal testing. Nonetheless, Congress passed Consumer Product Safety Improvement Act of 2008 banning phalates in certain children’s products, effectively raising the cost of doing business for toy / children’s articles manufacturers. For specific’s regarding applications of phalates to children’s products see CPSIA Questionnaire portion “Children’s Articles” produced by the editor of this blog.
CPSC’s recent webinar slides provide brief preview of minimum compliance standards for non-children products that importer is required to comply with. Those importers that would like to keep their expenses to the minimum, thereby forgoing third party testing fees, must base their certification on a “reasonable testing program,” which should contain: product specifications applicable certification tests production testing remedial action plan program design and implementation documentation The above guidelines, without more, seem to be very lax, so long as you know what is meant by “applicable.” In other words, one should know what to test for, and that requires knowledge of CPSIA and other CPSC regulations. To make the compliance easier, lawcustoms designed questionnaire. The questionnaire, however, is a work in progress and is currently in the process of being updated.
On January 28, 2010 attorneys from Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP (GDLSK), Alan R. Klestadt (aklestadt@gdlsk.com) and Frances P. Hadfield (fhadfield@gdlsk.com) issued a flyer called “Product Safety Duty Refund Opportunity.” The gist of the flyer was the Volkswagen v. US, CIT 2009 case, its related CAFC opinion, and its application to Consumer Product Safety Improvement Act of 2008 (CPSIA). I would normally scan through the flyer just as many others, dismissing it into the vacuum of potentially useful, but immediately irrelevant information, if it was not for interesting foresight suggested by folks at GDLSK and my utmost respect for the firm (GDLSK was the first firm in New York to organize a discussion forum, at Fashion Institute of Technology, addressing regulatory concerns under CPSIA). The timing of the flyer, surprisingly coincided with much publicized Toyota recall. Much appreciated foresight came in the form of structural changes recognition that are taking place in regulatory sector of international trade. With GATT and WTO tariff reductions, regulatory focus is increasingly shifting to “non-traditional” barriers. One such barrier, formally recognized under WTO (in large part owing to the US lobby) are antidumping duties. Another, duly noted by GDLSK, is the focus on…
