Most companies would agree that there are no more valuable assets than their brands, products and commercial and consumer relationships. But how can a company safeguard those resources?
There are several ways, but one is to comply with applicable mandatory and non-mandatory consumer product safety standards.
Ideally, every company should develop a consumer product safety program detailing its compliance with the Consumer Product Safety Commission’s (CPSC) mandatory requirements. Even where there is no mandatory standard, consumer products may not contain a defect which could create a “substantial product hazard,” or an “unreasonable risk of serious injury or death to consumers.”
The CPSC has issued mandatory flammability standards for clothing textiles and apparel, the “General Wearing Apparel Flammability Standard,” applying to most adult and children’s apparel, to reduce the danger of injury and loss of life from unreasonably flammable textiles and apparel.
The Commission vigilantly enforces its particularly-stringent Children’s Sleepwear Flammability Standard, and has rejected companies’ claims that children’s garments are not sleepwear because they are called “loungewear” or other names.
Children’s sleepwear includes apparel sizes 9 months to 14 years like nightgowns, pajamas and similar items, like robes, worn primarily for sleeping or sleep-related activities, except diapers, underwear and “infant garments,” for a child nine months or younger. “Tight-fitting garments” meeting specified maximum dimensions are also included.
The CPSC also limits chemicals permitted in children’s products. No children’s product designed or intended for children 12 years old or younger may contain more than 90 ppm (parts per million) of lead in a painted or coated surface, or 100 ppm of lead in the product’s substrate.
Further, childcare articles for children age 3 or younger may not contain more than 1,000 ppm of phthalates, which add flexibility to plastics.
To remain compliant with these regulations, companies should:
1. Comply with “voluntary” product safety standards issued by standards-setting organizations for products not subject to mandatory product safety standards. The CPSC occasionally issues a rule requiring product compliance with a particular voluntary product safety standard. Effectively, it has banned products that are not compliant with this standard, like neck drawstrings for children’s upper outerwear sizes 2T to 12, and waist and bottom drawstrings on children’s upper outerwear sizes 2T to 16.
2. Have products tested by an accredited third-party testing laboratory to ensure product safety compliance.
3. Based on the testing, issue appropriate certificates of compliance.
4. Develop internal communication capabilities to permit rapid response to a non-compliant product.
5. Know your duty to timely report a non-compliant product to the CPSC. Once you have information reasonably supporting the conclusion that a product does not comply with a mandatory safety requirement or contains a defect which could create a substantial product hazard or presents an unreasonable risk of serious injury or death, you must report to the CPSC within 24 hours.
Failure to timely report non-compliant products can have dire consequences. The CPSC may investigate your company and force it into a civil penalty agreement. Apparel companies and others have wound up paying millions in civil penalties. Ultimately, companies must also develop consumer product safety compliance programs to prevent problems from recurring.
Don’t be short-sighted. Protect your brands!
By David Callet
David Callet is a Principal in CalletLaw, where he provides comprehensive client representation on all aspects of consumer product safety compliance. His experience in product liability litigation helps clients limit the likelihood that a product safety compliance issue will lead to product liability litigation. David can be contacted at 240.396.6739 and at email@example.com.
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