A legislative reaction to recent toy recalls has unexpectedly impacted the automotive industry — one far removed from children’s products.
Congress responded to the highly publicized lead paint toy recalls in 2007-08 by passing the Consumer Product Safety Improvement Act of 2008 (CPSIA), which requires specific safety-compliance certifications by suppliers.
But despite no connection between children’s products and general automotive maintenance and care products, one CPSIA provision and its interpretation — unless amended — threaten to sweep all such products into a broad safety certification net that will impose significant costs, among other burdens, on these product suppliers, with no demonstrated safety need or benefit to the distribution chain or the consumer.
The Provision
Applying to both importers and domestic manufacturers, CPSIA section 102 requires that all product shipments carry outlined certification information that must be furnished to U.S. distributors and retailers upon delivery. The certificates require various information, including identification of all CPSC-administered standards applicable to the product, testing entities and contact information.
When first enacted in August 2008, the provision was generally viewed as applying only to children’s products. However, the U.S. Consumer Product Safety Commission (CPSC) later announced that the section would be applied to any product that falls under a similar CPSC ban, standard, rule or regulation.
Through public comments, manufacturers, distributors and retailers pushed back on the determination, which applied the section 102 requirements to many non-children-related items, including automotive chemical specialty products. These products already must meet stringent regulations under the Federal Hazardous Substances Act (FHSA) and Poison Prevention Packaging Act (PPPA) for distribution.
In early 2009, CPSC decided to freeze its section 102 implementation on certain non-children’s products for one year. A temporary fix, the ruling does not change the CPSC’s position or the ultimate outcome unless the agency’s interpretation of the section is changed or the language amended.
Weighing the negatives
When applied broadly, section 102 raises a host of issues and difficulties, stemming from both the statute’s language and also the unintended consequences that result.
Section 102’s terminology requiring certification for any product falling under a “similar” CPSC rule, ban, standard or regulation is ambiguous. Also, the section’s requirement that certification be based on testing is not consistent with the FHSA, which does not require compliance testing for all products.
Applying CPSIA certification to chemical specialty products already subject to FHSA and PPPA requirements is unfounded. When products must meet the rigorous labeling and packaging provisions of the FHSA and PPPA, requiring additional compliance certifications under the CPSIA is redundant.
Adding the CPSIA certification requirement will not lead to safer consumer products. The aftermarket supply chain is already aware of the existing regulatory requirements, including labeling, packaging and handling for manufactured and sold products, and no need for additional proof of compliance has been shown. Existing CPSC law, moreover, already provides potential sanctions for products that are mislabeled or mispackaged in violation of FHSA or PPPA requirements.
Nor is there any benefit at the consumer level. A consumer cannot look at a children’s product and know whether it contains lead. That same consumer who uses an automotive lubricant, however, can immediately identify its chemical contents and all safety warnings and instructions required by law.
Weighed against the lack of meaningful safety benefits is the cost burden this certification requirement imposes. Because the provision requires a CPSIA certificate for every shipment and individual SKU, this could require individual suppliers to provide thousands to potentially millions of certificates each year. These costs will be absorbed by the manufacturers who must generate and issue the certificates, the distributors and retailers who must review and process them, and, ultimately, consumers in the form of higher product costs, with no corresponding consumer safety benefits. These costs are in addition to all the costs already borne by companies in meeting the strict labeling and packaging requirements of existing law. In today’s economic environment, imposing these unwarranted and unintended additional costs on the entire distribution chain and the consuming public is particularly disturbing.
It is virtually certain that Congress never intended the CPSIA conformity certification requirements to apply to the vast array of automotive and other chemical specialty products for the consumer market. There has been no indication of any need for such a certification requirement and certainly no basis to impose such a requirement legislatively. Unless clarified and corrected, however, the CPSIA will subject many companies and products to a redundant and unneeded certification process. This is hardly an example of the “commonsense” application of the CPSIA that has been urged by some members of Congress.
Paul Laurenza is a member of the Government Policy Department and the Automotive Industry Team in the Washington, D.C. office of the law firm Dykema Gossett PLLC. He represents motor vehicle manufacturers, equipment suppliers, and consumer product companies on a wide range of safety and related issues. He can be reached at [email protected], www.dykema.com.
