New CPSC Testing and

Certification Requirements

January 2012
Quin Dodd, Law Offices of Quin D. Dodd
Joseph Mohorovic, Regional SVP, Intertek Consumer Goods
Michael McDonald, AAFA Government Relations Representative

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Introduction: Topics for Training

1. CPSIA Refresh
2. CPSIA Reform Legislation
3. Certification
4. Component Testing Rule
5. Certification and Testing Rule
6. Putting It All Together
7. Apparel Scenarios
8. Practical Tips
9. How to Certify a Children’s Product
10.Questions & Answers

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Commonly Used Acronyms
GCC = General Certificate of Conformity
CPC = Children’s Product Certificate
COC = Certificate of Conformity
IOR = Importer of Record
DM = Domestic Manufacturer
CPSIA = Consumer Product Safety Act of 2008
HR 2715 = House Resolution 2715 (CPSIA
reform legislation passed in 2011)
CPSC = U.S. Consumer Product Safety
Commission
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HDoA = High Degree of Assurance
PTP = Periodic Testing Plan or Production Testing
Plan
ASTM F963 = U.S. toy standard
QMS = Quality Manufacturing System – such as
ISO9001 or other quality manufacturing
certification or audit (retail or lab)
ATV = All Terrain Vehicle
PPM = Parts Per Million
RTP = Reasonable Testing Program
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 CPSIA Review: Refresher Course

• CPSIA Enacted Aug 2008

• New standards for lead in substrate (now 100 ppm);
phthalates; toys; durable nursery products; and ATVs
- Note growing issue of phthalates in paints and other
surface coatings!
• Certification (GCC/CPC/COC) for all mandatory CPSC
standards
• Third party testing and cert for “children’s products” to
mandatory CPSC standards
• Established CPSC Public Database
• Tracking labels for children’s products and warning labels
on toy and game advertising
• Various enhanced enforcement authorities
• Testing and Certification rulemaking required

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HR 2715: Congress CPSIA Reform

• Enacted Aug 2011

• Makes 100 ppm prospective and allows for possible “functional
purpose” lead exemptions
• Exempts inaccessible parts from phthalates limits
• Exempts most used children’s products and youth ATVs (entirely) from
lead substrate; and establishes 300 ppm and no third party testing for
metal parts of youth bikes and jogger strollers
• Third party testing exemption for “small batch manufacturers” (fewer
than 7500 units and $1 million in previous year’s consumer products
revenues); and ordinary books for kids 4-12
• Minor modifications to Database procedures
• Allows Commission to grant exclusions from tracking label mandate
• Requires Commission to review of third party testing costs (comment
period now open)

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 Testing and Certification:
Expiration of All Previous “Stays”

• Certification required of IORs and DMs for products subject to

mandatory CPSC standards
• “Stays of enforcement” have been lifting; “big three” (lead
substrate; phthalates and mandatory toy standard) lift for
products manufactured after Jan 1, 2012
• CPSIA mandated agency issue specific third party testing and
certification requirements for children’s products
• “Reasonable Testing Plan” for non-children’s (“general use”)
products remains (and remains undefined, so far)
• October 19, 2011 Commission approved mandatory Testing and
Certification; Representative Samples; and “Labeling” Rules; all
become effective for products manufactured after Feb 8, 2013
• Component Part Testing became effective December 8, 2011
(voluntary, not mandatory rule)

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Component Testing Rule: Allows for Voluntary
Precertification for Lead and Phthalates
• Effective now, but references to compliance with Testing and
Certification Rule (“part 1107”) not yet effective (until Feb 8, 2013).
• Mostly applies to lead (paint and substrate) and phthalates
• IOR/DM may issue a certificate based on component/final product test
reports or certificates
• So 4 options IF you choose to utilize this rule:
1. IOR/DM certifies based (in whole or in part) on test report for
component part(s) or material(s);
2. IOR/DM certifies based on test report for finished product;
3. IOR/DM certifies based on certificate for component(s);
4. IOR/DM certifies based on certificate for finished product
• Importer/DM still technically “on the hook” with CPSC---must exercise
“DUE CARE”—more than just checking boxes--“the degree of care that
a prudent and competent person engaged in the same line of business
or endeavor would exercise under similar circumstances…does not
permit willful ignorance”
• Major retailers may choose to continue allowing only finished product
testing to support certification

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Documentation Required for CPC Based on
Component Test Report or CPC

• Extensive documentation required in order for IOR/DM to

certify based on other’s (component) testing; 10 elements
required:
1. Identification of the component/product tested
2. Lot/batch number or other “information sufficient to identify the
component parts or finished products”
3. Identification of applicable CPSC standards
4. Identification of test methods and sampling protocols used
5. Date/date range when component/product tested
6. Test reports, with test values (e.g., lead ppm reading)
7. Party who conducted test (usu. 3rd party lab) and attestation by that
party that adequate test methods and sampling protocols were used
8. Component/finished product certificate, (if supplier is certifying)
9. Identification of parties ordering tests; parties conducting tests and direct
link of those tests to specific components/finished products.
10. Attestation by each supplier (“certifier and testing party”) that “due care”
was exercised to ensure continued compliance while
component/product was in that company’s custody

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Certification and Testing Rule:
High Degree of Recordkeeping
(Applies Only to Children’s Products and MAY Change After CPSC
Review)
4 Key Elements:
1. Certification testing
2. Periodic Testing/Production Testing Plan
3. Material Change requires retesting
4. Undue Influence policies and training

• Required for Children’s Products manufactured after February, 2013.

• All above must provide certifier with High Degree of Assurance of
compliance with standards

• HDOA defined as “evidence-based demonstration of consistent

performance of a product regarding compliance based on actual
knowledge of product and manufacturing process”

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 Testing and Certification Rule:
Certification

• Required of IORs and DMs

• Certificate information same as today:
http://www.cpsc.gov/about/cpsia/faq/elecertfaq.pdf
• Title of certificates not important: GCC, CPC or COC
• For children’s products, certification must be based on
CPSC-approved third party test report
• Samples must be of sufficient number to impart HDOA:
Differentiate between quantitative and qualitative testing
• Samples must be “identical in all material respects” to final
product—essentially same notion as “representative
samples”
• A single sample failure requires investigation and possible
remedial action which could include recertification—must
restore HDOA

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Testing and Certification Rule:
Periodic/Production Testing

Periodic Testing is required to ensure continued product compliance

after certification testing. Three options allowed to satisfy Periodic Testing
1. Default is annual third party retesting during production
2. Third Party Testing every two years if also doing Production Testing (Production
Management Techniques, plus some type of in-house testing or Third Party Testing)
3. Third Party Testing every three years if also doing in-house ISO-certified lab testing
• Requires a document entitled “Periodic (or Production) Testing Plan,” which
must contain explanation and justification (at each factory) for:
- Testing interval
- Tests to be conducted
- Number of samples and selection method
- If using Production Testing Plan, the “production
management techniques” used plus “some testing”
• Remember all elements go to HDOA, note especially
manufacturing process variability (types of manufacturing
processes can greatly affect likelihood of standards violations)

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Choosing a Periodic Testing Approach
for Certifying Children’s Products

Periodic Testing 1. Periodic 2. Production 3. In-House Production

Testing by ISO-
Options Testing Testing Accredited Lab

1. Quality Management High Degree of

Frequency of in- None System Use
Assurance (HDoA) of
house testing 2.
3.
Product risk
Manufacturing process continued product
based on: variability
compliance
Frequency of 3rd Party At least annual None or every 2 years None or every 3 years
Periodic Testing:

Frequency of 3rd Nine factors: §1107.21(b)(2)(i-ix) Production Production

• Test result variability
• Results close to limit
Party Testing • Mfr process factors Testing Results Testing Results
• Consumer complaints
based on: • Injury potential
• High volume
• Visually undetectable
noncompliance

Same as certification testing: Alternative methods Same as certification testing:

Methods CPSC approved methods only allowed CPSC approved methods only

1. Tests conducted 1. Process mgt techniques 1. In-house ISO-accredited

Test plan 2. 3rd Party test results 2. Tests conducted Production Testing results
3. Intervals 3rd Party test results (if
recordkeeping 3. Testing intervals 4. # of samples
2.
applicable)
4. # of samples tested 5. Basis for HDoA
6. Production Testing results
7. 3rd Party test results (if
applicable)

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 Testing and Certification Rule: Material Change

• Triggered by change in:

1) design;
2) manufacturing process; or
3) suppliers
• Material Change is something that might impact compliance
• Requires new third party testing and recertification (but only
for rules potentially impacted by change)
• Effectively requires a Product Specification/Bill of Materials

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Testing and Certification Rule: Undue Influence

• Must maintain written policy against (and have other

“safeguards”)
• “Appropriate staff” must be trained and attest to training
• Must have written policy to “immediately” notify CPSC of
attempts to “hide or exert undue influence over test results”
• No CPSC training program or other specific guidance.

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 Testing and Certification: Record Keeping

• Certificates
• PTP (Periodic or Production) including test results and basis
for concluding that the PTP achieves a “HDOA” of continued
product compliance.
• Sample failure response (including Product Specification)
• Material Changes and responses thereto
• Undue Influence policies and training
• Requires records be kept for 5 years and provided (and
translated if necessary) to CPSC within 48 hours of request
• Don’t need to be initially in English. (May want your
factory’s PTP to be in local language to ensure it’s
employed).

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 Very Interesting, But What Do I Have to Do?!?

• If you’re not the IOR or DM, nothing (unless your retail

customer/vendor/agent wants you to certify)
• If you’re the IOR/DM you must issue certificates for products
covered by mandatory standards (including “Big Three” on
Jan 1, 2012)
• If you’re the IOR/DM, you can begin relying on component
part supplier test reports/certificates to issue your certificate,
but you need required documentation
• Beginning February 2013 IOR/DM will have to follow
Testing and Certification Rules OR your certifying supplier
(factory/agent/vendor) will have to follow

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Putting it All Together:

Trim Component
Certification

Certification of Final
Product by Overseas
Mfr/Supplier

U.S. Importer-Retailer
Re-Certifying based
on foreign entity
certifications.

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Phase 1

Button is manufactured in Asia.

Button manufacturer certifies the button for lead.

Garment factory uses the button on a children’s tee.  

Garment factory uses the Component Rule to rely on the button certification & 
certify the final garment. 

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Phase 2

U.S. retailer imports the garment.

The  retailer recertifies the tee according to the Component Testing 
Rule.

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 Phase 3

Lead is found in buttons offered for sale.

Traceability is tested!  

What the CPSC does next is anyone’s guess!

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 Practical Tips: Hitting the Compliance Sweet
Spot

• Differentiate between “children’s” and

“general use” products and treat them
differently
• Use the right formula for risk-based
periodic/production testing frequency.
• Don’t over test
• Before relying on others’ certifications,
determine if you really trust them.
• Production Testing likely the most cost-
effective alternative.

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 Practical Tips: Avoid the Port-of-Entry
“Gotchas”

• While not required, good idea to include certificates with other import
forms

• Incorrectly classified imports/obvious IP violations two big sources of

inspections

• Lead paint and small parts still two biggest sources of holds/seizures at
US Ports

• Consider participation in CPSC/CBP Importer Self-Assessment

Program

• If relying on foreign supplier’s certificate, ensure you have the required

documentation [§1109.5(g)], and

• Remember that CPSC defines “Due Care” obligation as “receive,

review and ensure” appropriateness of documentation for component
certification reliance

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 Apparel Summary

Must issue certificate for flammability for non-

children’s, non-exempt wearing apparel

For children’s wearing apparel, must issue certificate

(based on third party testing) for:

* Non-exempt general
wearing apparel
flammability
* Lead paint
* Lead substrate
* Phthalates
* Children’s sleepwear
flammability
• Feb 2013, Testing and Certification requirements/documentation required
• Final product certificate based on components are OK: Warning: traceability required!

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How to Certify a Children’s Product for Compliance
According to the New Testing and Certification Rules

Children’s Sleepwear
1. Identify the regulations applicable to the product
2. Comply with Undue Influence Training and Policy
3. Conduct Third Party Certification Testing
a. Only Representative samples

4. Certify the product with a Certificate of Conformity

a. Include all required information in a certificate
5. Consider Approach to Periodic Testing Plan
(Option 1, 2 or 3)
Lead Content
a. ISO-Accredited in-house lab? – likely not Metal snaps (if not an exempt material
identified by the CPSC)
b. Production Duration – less than one year Lead in Surface Coating (16 CFR 1303)
total?
Paints
c. Level of supply chain engagement? Phthalates
Paints
d. Use of QMS – factory have successful Flammability (16 CFR 1615/1616)
quality audit? [Small Parts (16 CFR 1501)]
[Sharp points/edges (16 CFR 1500.48/.49)]

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 How to Certify a Children’s Product for Compliance
According to the New Testing and Certification Rules

6. Create a Periodic or Production Testing Plan

a. Determine the number of samples (results) to test
for each testing intervention per regulation.
i. Evaluate what regulations use quantitative
testing (1 sample) per intervention
ii. Evaluate what regulations use qualitative
testing (multiple samples) per intervention
b. Determine the number of testing interventions per
regulation (frequency of testing)
c. Document the Plan – justify the PTP frequency, #
of samples tested, QMS and sampling plan
7. Execute the PTP and document results
8. Consider Material Changes Must have separate
9. Perform Remedial Action if necessary PTP for each
10. Maintain recordkeeping requirements manufacturing site

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What Comes Next?

January 23rd comments

• Reducing Third Party Testing Burdens
• Random vs. Representative Testing
February 1st
• AAFA Product Safety Seminar (NY,NY)
February 8th 2013
• Periodic Testing Rule goes into full effect

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Comments for the CPSC

• Make clear in that no certification is required when testing is

not required
• Provide small batch exemptions for large manufactures
producing a small batch.
• Fix the determination on inaccessibility and fabric barriers
• Fix the boundaries of lead in fabric determination (prints,
screen prints, etc.)
• Define child care articles to NOT include kids pajamas
• Revisit whether general product safety rules (FFA) are
considered children product safety rules.
• More aggressive use of CPSC preemption to ensure better
alignment among different regulatory regimes
• Build into the 100ppm limit a de minimis or other factor to
accommodate interlab variability.
• We need more ideas from industry so send me your ideas.
- mmcdonald@wewear.org

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How to Stay Informed

• Sign up for emails from the CPSC

• Get the AAFA RSL

• Register for the AAFA Product Safety Seminar

– On February 1st at FIT in New York

• Join AAFA
– Sign up for AAFA News Breaker
– Join the Product Safety Council (PSC)

• Work with your testing lab

• Call Me (703)797-9052

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Thank You for Attending Our Webinar

For further questions regarding the content of this webinar,

please direct them to our respective experts designated
below. Thank you and have a great day!
Quin Dodd
Law Offices of Quin D. Dodd, LLC
quin@quindoddlaw.com

Joseph Mohorovic
Intertek Consumer Goods North America
Joseph.mohorovic@intertek.com

Michael McDonald
American Apparel & Footwear Association
mmcdonald@wewear.org

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