CPSC Proposes Rule to Require Representative Samples for Periodic Kid's Product Testing
The Consumer Product Safety Commission has issued a proposed rule to require that periodic testing of children’s products (starting in February 2013) be conducted using representative instead of random samples to ensure continued compliance of children’s products with all applicable rules, bans, standards, and regulations. The proposed rule also includes a recordkeeping requirement associated with testing representative samples.
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Comments are due by January 23, 2012.
Related Final Rule Establishes the Periodic Testing Requirements
This is one of four related notices1 issued concurrently on CPSIA testing, certification and labeling. One of the notices is a final rule, effective February 8, 2013, which establishes the requirements for the periodic testing of children’s products referred to in the proposed rule.
Under the 2013 related final rule, after initial third-party testing and certification of a children’s product, all manufacturers (or importers) of children’s products will have to periodically submit samples of their product to a CPSC-accredited third-party lab. This will have to be done every one to three years, depending on the frequency needed to ensure a high degree of assurance of compliance and on the procedures opted for as follows: (1) at least every year for manufacturers who do not undertake other production testing; (2) at least every two years for manufacturers who implement a production testing plan; or (3) at least every three years if they use a lab accredited to ISO/IEC 17025:2005(E), which CPSC says are mostly in-house testing labs. (See ITT’s Online Archives 11110925 for summary of the final rule.)
New Law Requires Periodic Testing to Use Representative not Random Sampling
The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires that this periodic testing of children’s products be conducted using random sampling, however, H.R. 2715 (which became Public Law 112--28 in August 2011) amended the CPSIA to require the use of “representative” sampling instead.
(See ITT’s Online Archives 11080230 for summary of H.R. 2715 which amended various other aspects of the CPSIA as well.)
Proposed Rule Says Representative Sample Method Must Infer Compliance of Untested Samples
Under the proposed rule, children’s product manufacturers (including importers2) would have to select “representative” product samples to be submitted to the third party lab for this periodic testing of children's products.
The procedure used to select these “representative” product samples would have to provide a basis for inferring compliance about the population of untested products produced during the applicable periodic testing interval. The number of samples selected for the sampling procedure would have to be sufficient to ensure continuing compliance with all applicable children’s product safety rules.
According to CPSC, this means that children’s product manufacturers (including importers2) would have to have a basis for believing that if the samples selected for periodic testing show compliance with the applicable children’s product safety rules, one could infer the compliance of the untested units in the population. CPSC adds that haphazard or non-purposeful methods of sample selection could not provide a basis for believing that the samples are representative without additional information. In many cases, a manufacturer’s knowledge of the manufacturing processes or materials used in the process would provide such information.
Would Have to Keep Records of Representative Sampling, Procedures for 5 Years
The manufacturer (including importer2) would have to document the testing of representative samples, including the number of representative samples selected and the procedure used to select representative samples. Records would also have to include the basis for inferring compliance of the product manufactured during the periodic testing interval from the results of the tested samples. These records, which could be electronic, would have to be maintained for five years and made available to CPSC upon request. They could be in a language other than English, provided they could be accurately translated within 48 hours of a request, or longer as negotiated.
1The other three notices are: (1) a final rule, effective February 8, 2013, that establishes third-party testing requirements for the initial certification of children’s products, periodic testing thereafter, testing after a material change (including a sourcing change), safeguarding against undue influence on a third-party lab, etc. (See ITT’s Online Archives 11110925 for summary.); (2) a final rule, effective December 8, 2011, that provides a voluntary certification option for domestic manufacturers and importers who must certify finished consumer products as complying with CPSC requirements to base their certificates on one or more of the following: component part testing or certification or another party’s finished product testing or certification - as long as certain conditions are met. (See ITT’s Online Archives 11110817 for summary.); (3) a request for comments on ways to reduce the cost of third-party testing of children’s products. (See ITT’s Online Archives 11111009 for summary.
2CPSC states in the preamble that the term “manufacturer,” for purposes of this proposed rule, includes private labelers and importers of products manufactured by foreign manufacturers.
CPSC contact -- Randy Butturini (301) 504--7562; rbutturini@cpsc.gov
(FR Pub 11/08/11, D/N CPSC--2011--0082)