The U.S. Consumer Product Safety Commission (“CPSC”) recently proposed to substantially alter its 2008 regulation governing the form and contents of certificates of compliance for consumer products.  Commonly referred to as “GCCs” within the retail and manufacturing industries, certificates of compliance are used to establish a product’s compliance with applicable CPSC safety regulations (16 CFR 1110).  The changes to these requirements will affect every manufacturer, importer, and private labeler of consumer products subject to a CPSC safety rule.   See Notice of Proposed Rulemaking.

Several of the most significant revisions alter the responsibilities of various parties throughout the supply chain for both domestic and imported consumer products subject to CPSC safety regulations.  One major change flips the burden and obligation for certifying privately labeled products manufactured in the United States from the domestic manufacturer to the private labeler of any such product.  Although private labelers may still rely on the certificate of a domestic manufacturer, the actual burden and responsibility to provide a certificate of compliance shifts to the private labeler under the proposed amendment to the rule. 

Another noteworthy change is the requirement for importers of consumer products to file their certificates electronically with U.S. Customs and Border Protection (“CBP”) at the time of filing the CBP entry or at the time of filing the entry and entry summary, if both are filed together. Previously, there was no requirement for importers of consumer products to file their certificates with CBP.  A separate revision to the rule requires foreign manufacturers sending products directly to consumers in the United States to provide a certificate of compliance with those products.

A somewhat complex aspect of the CPSC’s proposed amendment is the affirmation that manufacturers, importers, and private labelers will have to produce certificates showing that their products do not fall within the scope of a CPSC ban.  Under the proposed framework, the determination of whether certification to a ban is required would be both a ban and product specific analysis.  Other important aspects of the proposed rule are the requirements for manufacturers, importers, and private labelers to provide certificates affirmatively claiming an exemption when their product is exempt from an otherwise applicable safety regulation, the establishment of a five (5) year recordkeeping requirement for all general use products subject to a CPSC safety regulation, and the requirement that certificates made accessible to the agency on a website cannot have password protection.

CPSC has requested written comments from affected agency stakeholders on all sections of the proposed amendment and also in seven specific areas. Comments must be submitted and received by the agency no later than July 29, 2013.  After these comments are received and considered, CPSC staff will draft a final rule for Commission approval.