Publications

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On July 21, 2009, the federal Consumer Product Safety Commission (CPSC) issued guidance regarding a key provision of the landmark federal Consumer Product Safety Improvement Act of 2009 (CPSIA) –Section 103, which is effective for products manufactured on or after August 14, 2009.

Section 103(a) requires manufacturers, to the extent “practicable,” to have a tracking label or other distinguishing permanent mark on any consumer product primarily intended for children 12 and younger (click here for the full text of the statute). The tracking label must contain certain basic information, including the source of the product, the date of manufacture and more detailed information on the manufacturing process such as a batch or run number.

The scope of this provision is quite broad in that it applies to all children’s products, including, but not limited to, items such as clothing or shoes, not just toys and other regulated products.

Important questions have arisen regarding the requirements of Section 103. What level of "impracticability" will exempt a manufacturer from the requirements? What constitutes a "permanent" label? Over the past several months, the CPSC has engaged industry in a dialogue about such questions, and its recent guidance aims to provide some important clarity regarding acceptable compliance.

Following are key highlights of that guidance:

Section 103’s purpose: The CPSC emphasized that the purpose of Section 103 was to enhance the effectiveness of consumer product recalls by assisting manufacturers and consumers in identifying products subject to a recall, narrowing the scope of recall as much as possible and potentially identifying root causes of product failures. Efforts to comply with Section 103’s tracking label requirements should be informed by that goal.

No uniform requirements; best judgment required: The statute does not impose one-size-fits-all requirements. Manufacturers must use their best judgment to develop markings that best suit their business and product. Over time and as technology develops, the CPSC may develop more specific or uniform requirements.

Early good faith compliance efforts will not be penalized: The CPSC will require compliance with Section 103 in the context of future recalls, but recognizes that an education period will exist for adopting effective tracking label systems. Good faith efforts at compliance will not be penalized if information was inadvertently omitted from tracking label systems.

What is “practicable” requires a reasonable judgment by the manufacturer: In perhaps its most important observations, the CPSC provided further clarity on issues concerning the “practicability” limitation of Section 103:

o The CPSC has stated that it expects a manufacturer to depart from the requirements of Section 103 only for “considered and definable reasons.” Each manufacturer is ultimately responsible for making a reasonable judgment about what information can be marked on its product and packaging, given the character and type of their product and packaging, and what required information can be ascertainable, given the character and type of their business. When considering the reasonableness of a manufacturer’s decision regarding what information to include in its markings, the CPSC will look at the individual manufacturer’s situation along with the practices of peer manufacturers.

o Marking is impracticable if the product is too small to be marked, if a mark would damage the product or impair its utility, if the product’s material surface is impossible to mark permanently or if the aesthetics of the product would be ruined by a mark.

o Products meant to be stored in boxes (e.g., board games, art supplies) need only be marked on the box or outer packaging, not on each individual piece.

A “permanent” mark remains on the product for its useful life: The CPSC considers a “permanent” mark on a product to be a mark that can reasonably be expected to remain on the product during the useful life of the product. As for marks on packaging, a mark on disposable packaging need only be permanent to the extent that it is durable enough to reach the consumer (e.g., an adhesive label on disposable packaging might be sufficient for a packaging mark).

What information is required to be ascertainable from the tracking label: The CPSC considers Section 103 to require the name of the manufacturer or private labeler, the country, city and state of production, the day or date range of production or final assembly, and a reasonable means to ascertain detailed production information (such as lot, batch or run numbers).

A website reference likely suffices: The CPSC considers tracking label information “ascertainable” if a product and packaging is marked with a code and website address where the required information can be found, provided the name of a manufacturer or private labeler is also identified so a consumer without access to the internet can know whom to contact directly to also obtain the required information

For more information about the application of CPSIA Section 103 tracking label requirements to specific industries, businesses or products, please contact:

Kimberly K. Egan

George Gigounas