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BedTimes, Features, November 2008

CPSC provides more detail on new requirement
Certification of compliance required for shipments beginning Nov. 12

The U.S. Consumer Product Safety Commission indicated during a recent public meeting that mattresses will not be exempt from a new product certification requirement contained in the Consumer Product Safety Improvement Act that became law in August.

The law requires that, as of Nov. 12, each manufacturer, importer and private labeler of products subject to CPSC safety standards—such as the cigarette ignition and open-flame standards for mattresses—issue a certificate of compliance to accompany each shipment of regulated products to the distributors or retailers of those products. A copy of the certificate must be available upon request by either the CPSC or, in the case of imports, U.S. Customs and Border Protection.

The Nov. 12 deadline relates to the date of manufacture, regardless of whether the product is made in the United States or imported.

The International Sleep Products Association had discussions with CPSC staff requesting that the agency exempt mattresses from this requirement, given that the information required to be included on the new certification is either already contained on the federal product label required by the open-flame standard 16 CFR Part 1633 or is available upon request by the CPSC from the manufacturer or importer. During the public meeting on Oct. 2, the CPSC indicated that it would not grant such an exemption.

In this article, BedTimes summarizes the current views of CPSC staff on topics covered at the meeting that are relevant to the mattress industry and may not reflect the formal position of CPSC commissioners. BedTimes and ISPA urge members to consult with legal counsel and other experts in the product safety field regarding exactly how these new requirements will affect individual companies.

What must the certificate contain?
In terms of document format, the CPSC said it has prepared and will soon release to the public a sample form that certifiers may use, though they are not required to use it. ISPA will provide that form to members when it is available.

Meanwhile, the CPSC said that the certification must state that, based on a reasonable testing program, the product meets all applicable CPSC safety standards. The sample form will request the following:

• A description of the product that can be matched to the product shipped
A list of each CPSC standard that applies to that product (i.e., 16 CFR Part 1632 and 16 CFR Part 1633 for mattresses and mattress/foundation sets; other standards may apply for other products such as cribs, etc.)Name, full mailing address and telephone number of the manufacturer (applies to foreign manufacturer, if applicable)Name, full mailing address and telephone number of the U.S. importer (if applicable)Name, full mailing address and telephone number of the private labeler (if applicable)Contact information, including email, for the person who retains the test records
• Date on which the product was manufactured (at least the month and year)
• City and country of manufacture (if multiple facilities produce in the same city, a designation to identify the specific facility)
• Date on which the product was tested or certified
• If testing was performed by a third-party test lab, the contact information for the testing facility

The certification must be written in English, although it also may be written in a different language. The CPSC said that the certification must include all of the above information, regardless of whether some of it already is on the product or accompanying labels or materials.

Who must issue the certification?
At the meeting, the CPSC recognized that in many cases, several parties in the chain of distribution may need to issue a certification. For example, if a product is made by a foreign manufacturer, imported into the United States and sold by a private labeler, then the manufacturer, the importer and the private labeler each must meet the certification requirements. The CPSC will allow all of the parties to include their certifications on the same document, although individual certifications also will be allowed. The CPSC may issue clarification allowing only one party to certify, although this is not likely before Nov. 12. Testing laboratories may not issue a certification.

How is the certificate delivered?
The CPSC also emphasized that the certificate must both accompany the shipment and be furnished to the distributors and retailers. Although the certification may be provided to the consumer, this is not required. As a result, it is not necessary to permanently attach the certificate to each individual product, although this is not prohibited.

The certificate may be in paper form (either on a separate piece of paper or as part of other typical shipping documents) or can be placed directly on the product or on the product package or shipping container. Although a separate certificate may be provided with each individual product in a shipment, a single certificate can be used for multiple units of the same product in a given shipment.

The new law authorizes the CPSC to issue regulations allowing for copies of the certificate to be provided electronically to U.S. Customs and Border Patrol, but cautioned that the CPSC will likely not be able to issue such a regulation for a year or more. A participant in the meeting asked whether a manufacturer could issue the certificate electronically to distributors and retailers. CPSC responded that electronic delivery would meet the “furnished” requirement, but was uncertain whether it would also satisfy the requirement that the certificate “accompany” the shipment. The CPSC said it will consider this issue further.

The CPSC also said that when a product is sold by multiple stores owned by the same retailer, the certificate can be delivered to a centralized location, provided that each of the stores can access that database easily upon request by CPSC or customs officials and that each of the stores is aware of the process for accessing the data.
A manufacturer, importer or private labeler that sells directly to consumers by mail order, telephone or the Internet will not be required to provide certifications with those sales.

A ‘reasonable testing program’
The certification must state that, based on a reasonable testing program, the product meets all applicable CPSC safety standards. The issuer of the certificate has the discretion to decide on the type and frequency of the tests to be performed. In response to a question at the October meeting, CPSC officials indicated that if the commission later disagrees with the testing program chosen by the manufacturer, that action would not invalidate previously issued certifications. The CPSC may clarify what constitutes a reasonable testing program in the future.

Nevertheless, the CPSC noted that the testing referenced on the certificate need not necessarily be the exact test method specified in the applicable standard. In fact, under some circumstances, it might be appropriate for the certifier to base its statement on a more stringent test. The CPSC noted that the most important factor is that the test used should be sufficiently stringent to detect product variations.

Consequences for not complying
Parties that either fail to provide the required certification or provide a false certification can be subject to both civil and criminal penalties. The CPSC noted, however, that in the months immediately following the effective date for the certification requirement, the CPSC will be focused mostly on good faith efforts to comply with the new rules and not on issuing penalties for technical violations.

Duties of distributors & retailers
The law does not require distributors or retailers to reject uncertified goods or to retain in their files the certificates they receive from the manufacturer, importer or private labeler. However, the CPSC indicated that, in the future, it might issue regulations requiring that they be retained for a period of time. The CPSC noted that under similar provisions, the CPSC requires that importers and manufacturers maintain certain categories of records for at least three years following importation and suggested that this might be a prudent practice for parties to follow at this time.

The CPSC noted that distributors and retailers may have a strong incentive to require and maintain these certificates in the event that the CPSC later finds that certain products sold by the distributor or retailer do not meet an applicable CPSC standard. A distributor or retailer can defend itself from CPSC liability for unknowingly selling such noncompliant product by showing that it received a valid certificate for that product.

The future
This new certification requirement imposes significant compliance obligations on the mattress industry and many questions regarding the details of the requirement remain unresolved. ISPA will continue working with the CPSC and other trade groups in an effort to resolve outstanding issues and keep the mattress industry abreast of developments, according to Ryan Trainer, ISPA executive vice president and general counsel.