CPSIA FAQ #2: Do I have to test products manufactured before February 10, 2009?

Updated January 15, 2009.  My husband actually read my blog, and said my answer below wasn’t that clear.  So I’ll try again.

Second in my so far pretty popular Consumer Product Safety Improvement Act (CPSIA) frequently asked questions is:

FAQ #2:  Do I have to test my existing inventory for lead?

So, as you probably know if you are even reading this post is that on February 10, 2009, the CPSIA establishes a lead content limit for children’s products of 600 parts per million (ppm).  For items manufactured after that date, and before August 14, 2009, the manufacturer of domestically produced products and the importer of foreign produced products must issue general conformity certificates (GCCs) certifying that the products meet that 600 ppm lead content.

Additionally, the CPSIA interprets the February 10, 2009 600 ppm lead content limit to apply to all children’s products, regardless of when they are manufactured.  In other words, the CPSIA is retroactive.  This is because the CPSIA defines those products that don’t meet the lead limit as being banned hazardous substances, and banned hazardous substances cannot be distributed in commerce.

But do you have to test products manufactured before 2/10/09? Not necessarily. The law itself doesn’t require you to test. You just can’t sell products that exceed the 600 ppm limit.  But the law doesn’t dictate what information you use to make that determination – you could use suppliers’ certifications.  You could use your knowledge about the manufacturing and components, provided it is informed.  And you can test.  According to CPSC spokesperson Julie Vallese in some raw interview footage, you just need to make an “informed decision” and have a “level of confidence.”

The no testing but can’t sell if limit exceeded may be a distinction without a difference.  You can’t legally sell children’s products that don’t meet the limit, and you may not have any idea without testing.  For most companies and businesses with inventory, they are going to have to do some form of testing, or get the information from the appropriate supplier.  You really don’t want to be arguing in court (such as a claim from a competitor for unfair competition) that you just looked at the products and made a decision.

Of course, if the product is a coated or painted product, it is subject to the lead in coatings rule and is subject to 3rd party accredited testing as of 12/22/08.

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