Understanding the Consumer Product Safety Improvement Act of 2008 ( CPSIA ) Requirements. November 12, 2008

Transcription

1 Understanding the Consumer Product Safety Improvement Act of 2008 ( CPSIA ) Requirements November 12, 2008 Robert J. Pisani Pisani & Roll PLLC 1629 K St. NW Suite 300 Washington, DC Tel Fax rpisani@worldtradelawyers.com Brett Harris Pisani & Roll PLLC 1629 K St. NW Suite 300 Washington, DC Tel Fax bharris@worldtradelawyers.com

2 BACKGROUND: CONSUMER PRODUCT SAFETY IMPROVEMENT ACT OF 2008 Change to the Consumer Product Safety Act as a result of 2007 product recalls and increased pressure from consumer groups and legislators President Bush signed Public Law on August 14, 2008 Enactment date is August 15,

3 CPSIA: Key Elements for Importers & Domestic Manufacturers Certifications General Conformity Certification Third Party Testing Requirements Phased-in Timelines for New CPSC Standards Operational Issues (what must we do and how and when?) 3

4 CPSIA Product Coverage Products subject to Certificates of Conformity: All products (not just children s products) subject to CPSA bans, standards, or to any similar rule, ban, standard, or regulation under any other Act enforced by the Commission. (CPSC website contains product list including CPSC regulatory standards) Exempt: Products imported for testing, trade shows or re-export (except if later sold for consumption in the U.S.) Domestically (U.S.) manufactured products subject to CPSC regulation 4

5 CPSIA Product Coverage (cont d.) Certificates required for covered products: Manufactured on or after November 12, 2008 Must be based on a test of each product or reasonable testing program U.S. Congress established schedule for third party testing of all children s products CPSC may extend such testing to other regulated products Certification aimed at advising distributors and retailers of CPSIA compliance 5

6 Who Must Provide Certification? PER CPSC FINAL RULE ISSUED 11/11/08: Importers of covered products Domestic manufacturers of covered products (Foreign manufacturer certificates not required) 6

7 What information must the Certificate contain? PER CPSC FINAL RULE ISSUED 11/11/08*: 1. Identification of the product covered by the certificate 2. Citation to each CPSC product safety regulation (i.e., standard or ban) for which the product is being certified 3. Identification of the U.S. importer (or domestic mfr.) certifying compliance of the product (name, address & phone number) 4. Contact information for the individual maintaining records of test results (name, address, address &phone number) 5. Date (month and year) and place (city, state, country or admin. region) where this product was manufactured 6. Date and place (city, state, country or admin. region) where this product was tested for compliance with the regulation(s) cited above 7. Identification of any third-party laboratory on whose testing the certificate depends (name, address & phone number) *Note that the above information must be provided in English 7

8 How do I submit the Certificate? PER CPSC FINAL RULE ISSUED 11/11/08: Certificates must accompany each product or shipment of products covered by the same certificate and furnished to each distributor or retailer of the product(s) Copy must be available to CPSC and/or Customs and Border Protection upon request (no need to file with import entry) Electronic Certification permissible (see next slide) 8

9 How do I File Electronically? PER CPSC FINAL RULE ISSUED 11/11/08: CPSC recognizes that paper certificates covering bulk shipments and small-volume-per-retailer manufacturers and importer shipments are costly & inefficient CPSC has indicated that Electronic certificates can accompany covered shipments and be furnished to retailers and distributors provided that: 1. The electronic certificates contain all the required content under the CPSIA, and 2. Will be reasonably accessible by information on the product or accompanying the product (e.g., a unique identifier or web address) and furnished to the retailer/distributor, and 3. Is available (upon request) to CPSC and/or CBP as soon as the product is available for inspection in the U.S. 9

10 Electronic Filing - Postscripts In the CPSC Final Rule issued 11/11/08, the agency left the door open to future rulemaking regarding electronic filing by either the CPSC or CBP Per the final rule, any party may enter and/or maintain the required certificate data or data platform, but the certifying entity(ies) remain legally responsible for accuracy and completeness of the information, and Any electronic certificate must be created prior to the arrival of the shipment in U.S. domestic commerce (along with means to verify date of creation or last modification 10

11 Mandatory Third Party Testing Third party tests not required for General Certificates of Conformity except for children s products Children s products are generally those packaged, displayed, promoted or advertised as appropriate for use by children 12 years of age or younger Rolling phase-in of third party testing requirements depending upon product category First mandatory third party testing, to test children's products for conformity with the lead paint ban, is effective for such products manufactured on or after December 22,

12 Mandatory Third Party Testing (Cont d.) Subsequent mandatory thirdparty testing date implementation schedule: Product Category CPSC Publishes Accreditation Procedure Lead Paint Ban September 22, 2008 Cribs and Pacifiers Third Party Testing Required December 22, 2008 October 22, 2008 January 20, 2009 Small Parts November 2008 February 2009 Metal Jewelry December 2008 March 2009 Baby Bouncers, Walkers and Jumpers 300 ppm Lead Content CPSC Children s Product Safety Rules March 2009 June 2009 May 2009 August 2009 June 2009 September

13 Importer Self Assessment & Product Safety Pilot program open to current CBP Importer Self- Assessment ( ISA ) participants Product safety questionnaire/interagency team visit to discuss product safety internal controls Benefits: Reduced product safety tests on goods ISA participant s products are moved to the front at laboratory Destruction in lieu of redelivery Fast Track Product Recall Program 13

14 CPSIA Enforcement Failure to furnish a required Certificate or issuing a false Certificate (if issuer has reason to know the Certificate is false or misleading in any material respect) is unlawful CPSIA Section 19(a)(6) Violations of section 19 are subject to civil penalties (up to $100,000 per violation cap of $15 million for related series of violations) and/or criminal sanctions (up to 5 yrs. imprisonment and/or fine) The CPSC is required to issue final regulations by no later than August 14, 2009 providing its interpretation of certain penalty factors 14

15 CPSIA Enforcement & CBP Enforcement related to CPSIA regulated imports likely to be at least initially performed by CBP At October 2008 CBP Trade Symposium, the principal CBP official involved with CPSIA requirements advised that no CPSC enforcement initiatives were currently planned However, if a non-compliant shipment is discovered during a routine or random exam, the shipment will likely be denied entry or seized and forfeited to the government CBP has authority to grant re-export requests for non-compliant shipments 15

16 Questions? Robert Pisani: Brett Harris: