Last Thursday, October 20, the Consumer Product Safety Commission voted to approve the final testing and certification rules under the Consumer Product Safety Information Act of 2008. This has been one of the pieces still to be put into place in the three-year saga since the enactment of the CPSIA, which was intended to protect children 12 and under from lead and other hazards in all kinds of products, including some books.
“It’s good news/bad news,” says Gary Jones, assistant v-p, environmental, health and safety affairs at the Printing Industries of America. “After a long process, the Commission finally released the rules for the third-party testing and the component testing.” But there remains some confusion surrounding some of the rules, and a few key issues were held for future rulings.
The new rules primarily affect publishers of novelty children’s books and book-plus sets; most ordinary children’s books were excluded from the testing and certification provisions in an amendment passed in August. However, publishers of ordinary children’s books are still awaiting the CPSC’s interpretation of the amendment, H.R. 2715.
“While we were very happy about the exclusion of ordinary children’s books in H.R. 2715, that did not take us out of this process,” says Allan Adler, v-p for legal and government affairs at the Association of American Publishers. “We believe ordinary paper-based books are essentially excluded, but it will depend on how [the CPSC] interprets what I call the ‘clawback provisions’ from the exclusion.”
Those would be the exceptions to the definition of an “ordinary children’s book” outlined in the amendment. They include books not made in the same way or with the same components as most paper-and-ink books, those with “inherent play value,” and those designed for children 3 and under. “It will be interesting to see the way these are interpreted,” Adler says, noting that there is very little legislative history to give an idea of Congress’s intent when it came to these exclusions.
The final testing and certification rule issued last week—which takes effect 15 months after it is published in the Federal Register—requires products to be tested by authorized independent labs when they are first put on sale and when any material changes occur to their design, as well as periodically thereafter. Marketers of children’s products need to keep a paper trail of all testing and certification during the manufacturing process.
One significant change to the final rule, compared to an earlier proposed version, is in the periodic testing guidelines. In the final rule, Jones explains, companies can either test every year or put a production plan in place that allows them to retest and recertify with a third-party lab every two years. The proposed version provided for a “reasonable” testing plan, rather than a production plan. This change is significant because the production plan, as outlined in the final rule, requires additional testing, while the reasonable testing provision was based on five quality-assurance elements, none of which included testing.
A separate rule, issued concurrently with the testing and certification guidelines, addresses one key industry concern by allowing component testing, where companies along the supply chain can test parts or elements that go into the product, rather than the final product. This even extends to components of components. For example, printers or their suppliers can test the 13 to 15 mixing bases that make up the whole range of spot colors, rather than each spot color. That was something the printing industry was pushing hard for as a way to reduce costs and delays.
One issue that is still pending is whether representative samples, rather than the more statistically accurate but more costly random samples, can be used for testing. The CPSC voted to move forward with a “notice of proposed rulemaking” on the issue of representative samples, a step toward a separate final rule in the future.
The final third-party testing and certification rule as it stands now is confusing regarding this issue, according to Jones. The number of samples that need to be tested to give “a high degree of assurance” that the product is safe isn’t spelled out, just that companies have to test “a sufficient number” of samples to be confident that the product meets the law’s standards.
“The question is, what is a high degree of assurance?” Jones asks. “They really danced around this issue, and it’s going to be interesting to see how this thing plays out. The question of what these rules really mean will only come out through enforcement.”
The Commissioners who opposed the final testing and certification rules in the 3-2 CPSC vote, including Nancy Nord, argued that the guidelines continue to be too expensive for many children’s product companies, without a clear gain in safety, and that they were adopted without enough input from industry and the public.
Congress had directed the CPSC to look for ways to lower the costs of complying with the law. “But they didn’t do a good cost/benefit analysis of the costs versus the levels of assurance,” Jones explains. To that end, the CPSC voted to publish a notice in the Federal Register seeking public comment and suggestions on how to reduce the costs of the third-party testing requirements.
Although the testing and certification rule is “final,” observers believe there is a virtual certainty it will need to be revised in the future as some of these pending issues are resolved. From a practical point of view, most publishers of novelty, book-plus and other mass-market formats already are testing their products as per the guidelines of key retailers such as Walmart and Target, which tend to be more stringent than the rules under CPSIA.
To review CPSIA history over the last three years, see PW’s timeline of key milestones.
