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A New 'Must-Do' for Children's Products Importers and Domestic Manufacturers: A CPSC-Compliant Product Testing and Certification Program

Since the 2008 passage of the Consumer Product Safety Improvement Act, importers and domestic manufacturers of children’s products (a consumer product designed or intended primarily for children 12 or under) have been required to issue a certificate of compliance (known as a “General Conformity Certificate” or "GCC”) stating that the product is compliant with all U.S. Consumer Product Safety Commission (“CPSC”) mandated product safety rules. Now, however, children’s products importers and domestic manufacturers will be required to do more. Last year the CPSC issued regulations that require importers and domestic manufacturers to also develop and implement by February 8, 2013 their own Product Testing and Certification Program.

This new Product Testing and Certification Program, previously called a “Reasonable Testing Program,” must include specified elements, the implementation of which will, according to the CPSC’s regulations, provide the issuer of a new type of GCC (a “Children’s Product Certificate”) a “high degree of assurance” that all of its children’s products, not just the products that were tested, are compliant with applicable CPSC product safety rules.

The good news is that developing and implementing the new Product Testing and Certification Program will increase the likelihood that a company’s children’s products are in compliance with applicable CPSC product safety rules. Thus, it will help to protect the company’s brands from adverse publicity and avoid commercial disruption from goods being detained at a port or recalled by the CPSC.

A Company’s CPSC-Compliant Product Testing and Certification Program Must Include and/or Address:

  • Initial product certification which is to be based upon third-party lab testing of “sufficient samples” of the children’s products to provide the company a “high degree of assurance” that all of its children’s products meet applicable product safety rules.
  • A Periodic Testing Plan, which addresses the tests to be conducted, the intervals between tests, the number of samples to be tested and the methods that ensure that the tested samples are “representative” of the entire production population, so that the company can continue to have a "high degree of assurance” that its products remain compliant with all applicable product safety rules.
  • Material change in the product design or manufacturing process, including the sourcing of component parts, which could affect the children’s products’ ability to comply with applicable product safety rules.
  • Procedures to safeguard against a company using undue influence over third-party labs.
  • Records of all Children’s Product Certificates, third-party test results, Periodic Testing Plans, and material change and undue influence policy documents must be maintained for five years and made available to the CPSC on request.

A CPSC-Compliant Product Testing and Certification Program May Include and/or Address:

  • Component part certification and/or testing which a company may rely upon if it has exercised “due care” to ensure that reliance on that component part certificate and/or test was justified.
  • A Production Testing Plan which describes the production management techniques and tests that will be performed to provide the company a “high degree of assurance” that its children’s products continue to comply with applicable product safety rules after issuance of an Initial Product Certification. Although not required, a Production Testing Plan can extend the company’s mandatory third party testing from a minimum of once a year to once every two years.
©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume II, Number 171

About this Author

Francis Citera, Greenberg Traurig Law Firm, Chicago, Business Law Litigation Attorney

Francis A. Citera is an attrney in the firm's Products Liability & Mass Torts Litigation Group and Co-Chair of the Chicago Litigation Practice. Frank has been described by Legal 500 as being “renowned for his toxic tort and product liability work.” Frank has over 30 years of experience defending purported class actions, toxic tort actions, and other complex litigation in both federal and state courts. He has tried many cases, including an action by the Government to enforce a unilateral administrative order, an allocation case among potentially responsible parties,...

Victoria Davis Lockard, Greenberg Traurig Law Firm, Atlanta, Product Liability, Healthcare Litigation Attorney

Victoria Davis Lockard is Vice Chair of the Pharmaceutical, Medical Device & Health Care Litigation Practice and focuses her practice in the areas of products liability, mass torts, consumer class actions and other complex litigation. She handles high-stakes, single-plaintiff cases (including through trial) and complex litigation, including MDLs, coordinated state actions and class actions

Victoria also advises a variety of manufacturers and distributors in connection with compliance matters, risk assessment, product recalls and reporting...

Gretchen Miller, Greenberg Traurig Law Firm, Chicago, Litigation, Health and Environmental Law Attorney

Gretchen N. Miller focuses her practice in toxic tort, product liability, and class action litigation in state and federal courts. She is a trial lawyer with experience, both as first and second chair trial counsel, defending manufacturers against claims of product defect for industrial, automotive, and medical products on a national basis. As national counsel for manufacturers of industrial products, Gretchen oversees product liability litigation nationwide and counsels clients on risk management strategies. She also has significant experience litigating complex and...