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Unease and uncertainty continue to characterize conversations in the children’s industry regarding the Consumer Product Safety Improvement Act (CPSIA). For the latest, check out our CPSIA series.

In the following weeks we will spotlight Reform CPSIA, the pending multi-party lawsuit and the reforms these manufacturers are seeking.

By Marianne Bhonslay, February 27, 2009
CPSIA Series

In spite of last month’s stay in the U.S. Consumer Product Safety Commission’s (CPSC) new testing and certification requirements, manufacturers, designers and suppliers remain concerned and confused about the legislation as it currently reads and about its implementation in February 2010.

According to the CPSC's Edward Kang, the stay “affects only the new testing for lead content and phthalates” and certification requirement – makers and purveyors of products for children age 12 and under must “comply” with the new lead-levels, stipulating that no product may contain more than 600 parts per million of lead in any accessible part. That stipulation went into effect earlier this month – February 10th – the original date of implementation for the Consumer Product Safety Improvement Act (CPSIA), signed into law by President George W. Bush last August. The bill also bans six different kinds of phthalates in children’s products, Kang adds.

“There is no requirement to test” at this time, Kang says, reiterating that the deadline to comply with the testing mandate has been stayed until February 2010. “The (extra) year was provided to give (makers and sellers of children’s products) the opportunity to revise their business practices, take a close look at their suppliers, and (institute) a quality control process to make sure their products (comply with the new requirements). It is not advised to (proceed) with business as usual. The laws are not going away.”

While the CPSIA law may not vanish, there are amendments pending to revise it, and the CPSC is likewise considering implementing “exemptions,” Kang confirms. For example, the CPSC acknowledges that “natural materials,” such as wool, cotton, silk and wood “historically have not contained lead,” says Kang. The CPSC currently claims “we have said we are not going to be looking at those materials,” says Kang, noting the list of natural materials includes stainless steel, gold and silver.

Legally, however, those materials have not been formally “exempt,” meaning that testing will still be required of those “natural” materials as of February 2010.

“There is no official exemption at this point,” says Kang. “Exemption under the letter of the law takes time.” He adds that once legislation such as the CPSIA has been passed it must undergo a formal and legal “rule making process” – one that includes research and “comments from the public” – before it may be legally amended. That process, Kang says, could require “months at a minimum,” and there is no guarantee that “natural” materials will ever be legally exempt.

“Any changes to the letter of the law have to come from Congress,” says Kang.”

The CPSC is also “looking at” distinguishing between “component testing” and “product testing” for finished goods, Kang says. Currently, manufacturers would be required to produce certification that all components in a given item – such as the zippers and buttons to a garment – passed the lead testing.

One change that has been implemented is the format for product certification. At one point, Kang says, a “physical piece of paper” certifying the item had been tested had to accompany the product from manufacturer to retailer. Now an electronic form – sent from the manufacturer to the retailer via email, for example – will suffice.

While industry designers, suppliers and manufacturers consider the stay a bit of a reprieve – especially smaller companies and retailers trying to ascertain how to implement the new laws into production schedules and fiscal budgets – industry members say uncertainty and confusion about the CPSIA are wreaking havoc on business.

According to Louise Conner, who operates The Showroom in New York, Fall 2009 deliveries were affected prior to the stay. She says one supplier that typically ships Fall deliveries in July and August pushed shipping into September because of the testing requirements. Retailers, however, will balk at receiving Fall goods in September, when children are already back in school and the prime selling season has concluded. Therefore, Conner continues, this supplier reconfigured delivery to ship 80 percent by August, and must accept losing the other 20 percent of its Fall business. Says Conner, “We won’t write (Fall ’09 business in September).”

Michael Kushner of The Kushner Law Firm, PLC in Southern California is an attorney working in tandem with a group of children’s manufacturers – primarily apparel makers -- in an effort to reform the CPSIA. Among the issues with the new law, he says, is the fact that very little lead time was given to the industry to comply.

“Every single water shed law with a major regulatory (and) policy change was given years of lead time,” says Kushner, who is organizing a multi-party lawsuit and mentions legislation such as The Clean Air Act. He likewise contests the fact that the CPSIA places arduous testing restrictions on companies producing products in the U.S.

“The lead scare (arose) from products made in China,” says Kushner. “There is not one example of a product made in the USA in the last 10 years that was above lead level limits.”

Kushner says a T-shirt supplier who purchases black or white cotton T-shirts from Hanes, for example, and then silk-screens the shirts in the United States should not be required to test for lead. “Paint made in the U.S. has not been legally allowed to contain lead for 25 years,” he says. Moreover, testing is expensive.

“The way the law is written (there is) testing for a host of products that don’t contain lead and never will and that testing will drive people out of business,” says Kushner.

Industry members will have the opportunity to ask questions and learn more about the CPSIA at the upcoming ENK Children’s Club Show, which will host a dinner forum in conjunction with the American Apparel & Footwear Association (AAFA)/Intertek Insider on Monday, March 9th at the Jacob Javits Center. The forum will address topics such as liability concerns regarding the new regulations, common misinterpretations of the law and remaining unresolved issues.