This post was written by Stephen P. Murphy.
Manufacturers and importers of children’s products in the United States were emboldened to think that the third party testing burden imposed by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) would be reduced by HR 2715, signed into law by the President on August 12, 2011. The new law eliminates certain CPSIA requirements and requires the Consumer Product Safety Commission (“CPSC”) to solicit public comment on a variety of issues related to lessening Congress’ burden of third party testing of children’s products required by the CPSIA. The CPSC then must review the comments and issue new testing requirements if the CPSC determines that reduction of the burden is viable.
On September 21, 2011, the CPSC issued its “Request for Comments.” While the request automatically mirrors the issues stated in HR 2715, it goes much further in a decidedly negative direction. The CPSC requests commentators to define language used in the statute, such as “substantially similar,” “identical in all material respects,” “substantial number of different components,” “substantial number,” “reasonably make use” and “evidence of conformity.” An excellent example of the CPSC’s attitude toward the goal of reducing the burden of third party testing is found in its first comment request section. Rather than focusing on the topic Congress dictated, the CPSC requests additional information such as whether the same testing methods the CPSC requires should be required by the other government agency, whether the other agency’s testing laboratory must comply with all of the accreditation criteria required by the CPSC, and whether the other agency’s testing laboratory utilizes the same test methods and frequency as the CPSC’s testing laboratory. The CPSC takes a similar tack by adding equally onerous criteria to the other issues specified by Congress.
In enacting HR 2715, the Congress acted to alleviate a number of administrative burdens imposed by the CPSIA. Section Two of the Act sent a clear signal to the CPSC that it was to solicit suggestions from a broad spectrum of importers and manufacturers on how to reduce third party testing burdens. By requiring these additional criteria not mandated by Congress, the CPSC has met the letter of the law but also defeated the purpose of the law. It did so by placing such a greatly inflated burden on potential commentators that few if any will actually respond. The ultimate result of this effort will likely be no change to the onerous third party testing requirement of the CPSIA.