Stay of Enforcement – Good News/Bad News

Concerning the Stay of Enforcement on lead content third party testing, there is both good news and bad news. 

First the good news:  We have a recommendation from the CPSC staff to extend the stay of enforcement – now slated to expire on February 10, 2011 – until September 14, 2011.  This gives product makers a seven month reprieve from one of the most expensive, job-killing provisions of the CPSIA.  Since the agency is required to identify a level lower than 300 ppm that is technologically feasible to become effective August 14, 2011,  it is unfair to require products to be tested to the 300 ppm standard and then again potentially to some other standard shortly thereafter.  This delay will also give the agency more time to finalize both the testing and certification proposed rule (the 15 month rule) and the component testing proposed rule.  Both these rules are linked with the lifting of the stay. 

Now the bad news:  The recommendation before the Commission is for a delay only until September 14, 2011.  While this extension is certainly better than nothing, I question whether this extension is long enough to accomplish all we and the marketplace need to do before the stay lifts.  It is unclear when we will issue the final 15 month rule and the component testing rule.  While, right now, I anticipate that we will issue both sometime this spring or summer, in particular the 15 month rule is proving to be more expensive and more complex than we initially thought. 

Ideally, both these rules should be in place before we lift the stay of enforcement.  As I stated in an earlier blog post, the component testing concept cannot work without its underlying rules being in place.  Component manufacturers reasonably may not take on the responsibility without knowing what their continuing testing obligations would be.  And without component testing, the final product makers will be burdened with the entire testing regime required by the CPSIA. 

It is my understanding that while large manufacturers gear up for holiday manufacturing in late winter and spring to complete this work by summer, that is not true for medium and small product makers. The September date falls right when small manufacturers are finishing up their work for the holiday season.  We are imposing a requirement in a way that unduly penalizes small businesses.  Why would we do this?

As we debate the appropriate date for extending the stay, it should be kept in mind that an extension is just that – only an extension.  The CPSIA requires third party testing and the Commission cannot change that requirement.  Our responsibility is to impose it in a way that does the least amount of damage to those who must live with this law.  Our responsibility is to try to smooth out the speed bumps and also let Congress know of the issues we are seeing with respect to this law.  However, at the end of the day, third party testing was mandated by Congress and Congress needs to decide whether or not to change that mandate. 

The Commission will soon be voting on the staff recommendation.  Let me know how the September date impacts you.

5 Responses to “Stay of Enforcement – Good News/Bad News”

  1. 1 Rick Brenner January 28, 2011 at 4:16 pm


    It’s Rick Brenner. We met at Icphso two years ago and chatted about the impact of CPSIA on the promotional products industry.

    For us the vote on the stay is too late to make any difference. With several hundred products in our line – many of which might be considered children’s products under the Final Interpretive Rule – depending how we decorate them for a customer – we had to get a much earlier jump on third party testing than two weeks ahead of the deadline. We started testing in November and at that early date it was a monumental effort to get every product tested for the February effective date.

    So if the 100ppm standard is found to be technologically feasible and goes into effect in August then we will end up having to test twice. If that happens then we will end up being penalized for being diligent about complying with the February effective date.

    One thing that would help us if 100 ppm does become a reality is to do the same thing you did with the 300ppm standard. Impose the requirement to comply in August but don’t require a third party test until next either next February or one year after your previous test.

    I’ll be at Icphso if you’re going to be there.

    Thanks very much,

    Robert (Rick) Brenner
    Prime Resources Corporation
    1100 Boston Avenue
    Bridgeport, CT 06610
    203 455-2419

  2. 2 Sarah Natividad January 28, 2011 at 8:53 am

    How does the September extension affect me? I have to rest my poor sore eye rolling muscles. The only people left in business are those making tiny amounts of products entirely out of exempt materials (me), those who have giant compliance departments, and those who are just hoping not to get caught. The 15-month rule doesn’t apply to the first, the second have sufficient staff to get through this, and the third don’t give a flying fig about your lousy 15-month rule.

    The only hope now to keep CPSC in check comes from Congress, because your fellow commissioners seem to be immune to your reasonable arguments.

  3. 3 Tess Elliott January 27, 2011 at 2:46 pm

    This is very sad, and it seems like no one cares how this will ruin small business in this country. They might as well give everything to China. I have already seen the devastation of the furniture market. It creates another behemoth agency, and will make a lot of third party testers rich beyond their wildest dreams. I wonder how many of those testing companies are going to be owned by the big manufacturers. Have read that Mattell is allowed to build its own testing center, which makes the whole law a terrible joke. Are our children safer? Not if they can buy local from people who never cheated to start with. Will foreign companies still cheat? You bet they will. It’s just business.

  4. 4 Janice McAleer January 27, 2011 at 2:04 pm


    I’m a tinsy volume children’s shoe importer, make-up, batches as small as 6 pairs. The shoes are manufactured in Spain. I’ve documented on a component level that all my footwear is made from European Union compliant materials. Because I’m so small (and theorectically, flexible), I can roll with dates.

    Obviously I’m hoping that our standards and requirements can be synchronized with the global market/Europe. They actually started this process before we did and would seem to have worked some of the kinks out of the system.

    I would also hope that the retroactive clause be eliminated since, besides the hardship and waste of perfectly good products, I don’t feel these items present a serious threat to children’s well being. Just about all of us are parents and totally understand the implications of carelessly made products. We all try to put safety foremost.

    And thank you as always for your informative messages – Jan McAleer

  1. 1 Tweets that mention Stay of Enforcement – Good News/Bad News « Conversations with Consumers -- Trackback on January 27, 2011 at 1:37 pm

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