Confusion sums up how executives in food distribution view the Consumer Product Safety Improvement Act, passed last year by Congress.
In January, Consumer Product Safety Commissioners voted a one-year stay for manufacturers and importers to test for high levels of lead and other toxins in children's products and certify their products meet new stringent CPSIA standards.
The postponement, however, only provides a partial stay to manufacturers and importers and doesn't exempt wholesalers and retailers from compliance of the law that takes effect tomorrow.
Under the mandate, children's products cannot be sold if they contain more than 600 parts per million total lead. Certain children's products manufactured on or after Feb. 10 cannot be sold if they contain more than 0.1% of certain specific phthalates (a substance added to plastics to increase flexibility) or if they fail to meet the new mandatory standards for toys.
According to a press release from the Toy Industry Association, “CPSC's emergency stay delays only the testing and certification requirements scheduled to take effect on Feb. 10, 2009; it does not modify the same deadline to comply with the new standards for lead, phthalates and other mandatory safety standards. Standing requirements for third-party verification and certification for existing lead paint and small parts regulations are also unaffected. Products already in inventory that do not meet the new CPSIA requirements — even if they met the standards that were in place before Feb. 10 — will be in violation of the law.”
“The testing and certification requirements are deferred for one year, but compliance with the new CPSIA standards begin … and the only way to demonstrate this is through testing,” said Carter Keithley, TIA president. “We do think there are very few toys with high lead levels left on the market, but it is a roll of the dice for any retailer or manufacturer to leave untested product on the shelf in the face of the dramatically higher penalties adopted by the act,” he said.
CPSC's interpretation of the CPSIA requires that products already in inventory be tested to demonstrate compliance with the new standard for lead or they cannot be sold.
Only Congress can change compliance of the law, the TIA release noted.
Most food distribution executives contacted by SN said they needed more information and guidance on the new law. Some said the law is confusing and they would only sell products that are certified by their suppliers.
Nychelle Fleming, spokeswoman for CPSC, told SN food retailers and wholesalers should get confirmation from their suppliers that products they sell complies with the news standards. However, under the stay no certification documentation is required.
Al Jones, senior vice president, procurement and marketing, Imperial Distributors, Auburn, Mass., which distributes only branded toys from major manufacturers, said Imperial is trying to figure out what they may have to do, if anything, to comply with the law. The wholesaler is asking manufacturers to certify that their products comply with the requirements of the law. However, Jones said they do not feel insulated from the law, which he described as ambiguous. “How do you make everybody liable up and down line?'' he asked.
Others in the food industry are watching how these standards develop. “We continue to monitor the issue, and in the meantime comply with all existing local, state and federal laws governing our operations,” said Haley Meyer, a spokeswoman for Supervalu, Minneapolis.
According to Deborah White, senior vice president and chief legal officer of the Food Marketing Institute, “Food retailers are aware that many of the nonfood products in their stores are covered by the Consumer Product Safety Improvement Act. FMI is working to assist members with their compliance questions and keep them informed of any delays in the requirement.”
The law is broad reaching and covers many categories, including housewares. Philip Brandl, president of the International Housewares Association, Chicago, said, “We vehemently oppose the CPSIA proposal and feel it is diametrically opposed to the common business sense interests of our members and their consumer customers.”
IHA is a member of the National Association of Manufacturers coalition, which has taken an active opposing position in what Brandl called an “anti-business” proposal.
The law also applies to product recalls. Last year CPSC issued 67 lead-related recalls that represented thousands of items.