Alerts and Updates

Children's Products Safety Act of 2007 Proposed in U.S. Senate

August 13, 2007

Legislation Aims to Increase Safety of Imported Toys and Other Children's Products

Scope of New Legislation

In response to the recent spate of recalls and safety issues involving toys and other children's products, particularly imports from China, U.S. Senator John Nelson (D - Fla.) has proposed legislation entitled the "Children's Products Safety Act of 2007" (S. 1833). This proposal would amend the U.S. Consumer Product Safety Act by imposing new testing, labeling and certification requirements for all children's products and prohibit the importation of children's products that have not been certified by an independent testing authority.

Under the proposed legislation, every manufacturer, importer and private labeler of a children's product would be required to certify each product as conforming to all applicable safety rules and standards, and to label each product accordingly. The U.S. Consumer Product Safety Commission ("CPSC") would be required to issue new regulations regarding labeling and certification. Any test or testing program on the basis of which a certificate is issued would have to be conducted by a non-governmental independent third party qualified to perform such tests or programs. An "independent third party" for purposes of this legislation means an independent testing entity that is physically separate from any manufacturer, importer or private labeler whose product will be tested by such entity, and is not owned, managed, controlled or directed by such manufacturer, importer or private labeler. Imports of children's products into the United States without third-party testing certification would be prohibited.

Some retailers and importers already require third-party testing, but this proposed legislation would make testing and certification mandatory for all products under the jurisdiction of the CPSC intended for children age 60 months or younger, as determined by a variety of relevant factors. These factors include statements by a manufacturer about the intended use of such products, labels, advertising, promotion and marketing, and whether consumers would expect the product to be used by a child under 60 months of age under the Age Determination Guidelines issued by the CPSC.

Existing Product Safety Regulation

The CPSC has broad regulatory powers over manufacturers, importers, distributors and retailers of consumer products. Its primary mandate is to reduce the incidence of death and injuries caused by defective products, and it carries out that mandate through various means, including gathering and analyzing accident data, investigating accidents and consumer complaints, developing safety standards and regulations, and controlling all aspects of product recalls. Voluntary reporting of potentially hazardous products by manufacturers, importers, distributors and retailers is a cornerstone of the Commission's regulatory scheme, and multimillion-dollar penalties have been imposed upon companies that have failed to file accurate and timely reports with the CPSC.

The CPSC's jurisdiction extends to almost any product that might fall into the hands of consumers during their daily lives, including those used in schools, residences and in recreation, with the exception of items regulated by other federal agencies, such as motor vehicles, aircraft, boats, food, firearms, tobacco, drugs, medical devices and cosmetics.

Every company involved in making, selling or distributing consumer products must have a working knowledge of the CPSC and its regulations regarding product safety, recalls and reporting. The reach of the CPSC extends well beyond U.S. borders, and product safety, hazard reporting and recall issues often have global implications. In recent years, the CPSC has entered into agreements with Canada, Chile, China, Costa Rica, the European Commission, India, Israel, Japan, Mexico and the Republic of Korea to share product safety data, engage in joint enforcement efforts and pursue common goals regarding consumer product safety.

Companies risk extra expense, financial losses and litigation exposure from the importation or sale of non-compliant products. Recalls and other risks can be minimized with careful planning to identify potential problems early and mobilize to correct them quickly.

For Further Information

If you have any questions regarding the issues discussed in this Alert, including how they may affect your company, please contact Paul S. Rosenlund in San Francisco or Andrew E. Mishkin in Washington, D.C., both of the Product Safety, Compliance and Recalls Group, or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.