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: 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 This flyer, made available by Sandler, Travis & Rosenberg, while a little outdated at this point, nonetheless provides a good idea on conformity certification applicability.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…
On June 4th opinion letter, CPSC’s Office of General Counsel attempted to clarify the meaning of children’s product with respect to ball point pens. It appears to be an industry standard to have lead in excess of CPSIA standards. The starting point of analysis, according to CPSC, is that a pen is considered as a general purpose item. It is the marketing and advertisement that may convert the general purpose pen into a children’s product. The opinion letter, then focuses on what type of marketing and/or advertisement would NOT constitute turning of a general purpose pen into a children’s product: Once a year “back to school” marketing Novelty pens Cartoon character pens Yet, these examples appear as the very type of marketing directed at children. While, there is no one set definition for “novelty,” it seems acceptable to use Wikipedia definition: “small manufactured adornment, especially a personal adornment.” Similarly, one could argue that cartoon characters (notable exception of adult cartoons) is the very type of advertisement directed at children. Obviously, it is very difficult to argue that “back to school” marketing is not directed at children. Here, the Office implicitly acknowledges it, and carves out “once a year” exception. Does…
Read More CPSIA’s Ballpoint Pens – Don’t Market To Children?
The emergency stay request, CPSC opinion letters, and finally SDNY court ruling point to the sign that the American plastic toy industry is really caught off guard. Additionally, the record high oil prices from earlier 2008, along with record low prices of today, create an incentive for business managers to shore up on inventory rather then continue to rely on increasingly expensive supply chain. Starting tomorrow, February 10th 2009, it is unlawful to import or sell any or all children’s toy or child care article which contains more then 0.1 % concentration of: di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), or benzyl butyl phthalate (BBP); and under some conditions, diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP) as well. According to February 5th SDNY ruling, that also applies to products currently on the shelves, in the warehouses, or otherwise held in inventories. If you are among the effected group, consider checking cross-referencing CPSC questionnaire.
