CPSC Issues Policy Statement on CPSIA Tracking Labels for Children's Products (Provides Guidance on Aug 14 Requirement)

The policy statement explains CPSC's interpretation of the "tracking label" requirement and provides guidance on how it intends to enforce it.

(The CPSC has also posted new frequently asked questions on "tracking labels" and the statements by the three Commissioners' on their votes. See future issues of ITT for BP summaries.)

Guidance on Enforcement

Affects Children's Products/Packaging Manufactured on/after Aug 14th

The CPSIA "tracking label" requirement will apply to children's products (and their packaging) manufactured on or after August 14, 2009. It does not apply retroactively to children's products made before that date.

Manufacturers and Importers are Responsible for Compliance

The "manufacturer" of the product is responsible for compliance with the CPSIA tracking label requirement. As "manufacturer" is defined in the CPSA (15 USC 2052(a)) to include both the manufacturer and importer, importers should work with their foreign manufacturing sources to ensure compliance.

Goal is to Improve Recall-Related Information for Children's Products

The purpose of the "tracking label" requirement is to establish a means for identifying the source of children's products in order to improve the safety of such products by assisting in recalls, etc.

The CPSC believes that the purpose is not to impose significant additional burdens on manufacturers who already make available the required information for their products, but to bring those who do not up to a higher standard.

CPSC Will Require Compliance in Context of Recalls, Use Enforcement Discretion

The CPSC will require compliance with this requirement in the context of recalls of products and will exercise its discretion with regard to penalizing manufacturers for noncompliance.

During "Educational Period," Penalties Not Likely if Good Faith Effort Made and Information Inadvertently Omitted

As with any new requirement, the CPSC anticipates that there will be a period of education when the "tracking label" requirement first takes effect. Given good faith efforts by manufacturers to educate themselves on the CPSIA's "tracking label" requirements and to consider ways to apply it to their business, CPSC will not likely seek penalties if required information was inadvertently omitted.

Guidance on Tracking Information Requirement

Permanent "Distinguishing Marks" Required, Not Singular "Label"

While the title of Section 103 of the CPSIA references "tracking labels," CPSC believes that the focus of the statutory text is "distinguishing marks." As such, manufacturers (and importers) should look at the totality of the information permanently marked on the product and packaging and not interpret "label" to mean a singular collection of information in one discrete location.

Portions of Required Information May Already be Marked on Product

The CPSC believes that required information already permanently marked either to brand the product or otherwise to comply with other CPSC or federal regulations, such as those promulgated under the Textile, Wool and Fur Acts or country of origin labeling rules, could be considered part of the "distinguishing marks" called for by the requirement. However, any such marking would have to be permanent.

Permanent Marks are Those that Remain on Product During 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. A mark on disposable packaging need only be permanent to the extent it is durable enough to reach the consumer. As such, an adhesive label on a piece of disposable packaging might be sufficient for a packaging mark. Also, if a mark is visible on the product through the packaging, there is no need for the mark to be on the packaging.

No Set Format for "Marks," Must Use Best Judgment

The "tracking label" requirement does not specify what the permanent "distinguishing marks" are to look like. At this point, the CPSC is not imposing any uniform requirements, but expects that manufacturers will use their best judgment to develop markings that best suit their business and product.

Manufacturer, Production Location, Date, Cohort Info Must be "Ascertainable"

The "tracking label" requirement mandates permanent distinguishing marks such that (i) the name of the manufacturer or the name of the private labeler (ii) the location of production (iii) the date of production and (iv) cohort information for that product (including the batch, run number, or other identifying characteristic) - are ascertainable. Any such marks should be visible and legible.

CPSC states that each manufacturer (and importer) is ultimately responsible for making a reasonable judgment about what information can be marked on their 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.

(Note that the issue of whether or not the manufacturer's name must be written on the product and packaging has caused some controversy among industries who consider that information proprietary. Webster's dictionary defines "ascertainable" as capable of being found out.)

Marks Should Allow Manufacturer to Determine Specific Source of Each Product

Overall, the information should allow the manufacturer to determine the specific source of each product. CPSC expects a manufacturer to depart from these requirements only for considered and definable reasons.

Codes May be Used as Long as Info Ascertainable by Consumers

A manufacturer may choose to employ a code or numbering system provided the required information remains ascertainable by the consumer. They can also rely on code systems already provided through compliance with other federal regulations, provided the required information underlying that code is ascertainable by consumers.

Country, State and City Sufficient to Provide Location of Production

CPSC believes that the name of the country and the city and state (or administrative region, as appropriate) where the product was manufactured would be sufficient to provide the location of production. However, the manufacturer would be responsible for identifying the specific source of the product in the event of a compliance inquiry or other CPSC action.

Date of Production Could be a Range or Date of Assembly

CPSC recognizes that products may not always be started and completed in a single day. The CPSC anticipates that the date of production could be a date range if the product is made over a period of time. When the product is a group of disparate components or items assembled together or gathered into one package, CPSC interprets the date of manufacture to mean the date of assembly or placement into one package.

Manufacturers Not Required to Use Lots/Batches, but Must Have Some Means to Identify Production, Etc.

Although the "tracking label" requirement does not require manufacturers that do not use lot, batch or run numbers to create such a system, CPSC believes that in order to comply, manufacturers must generally have in place a reasonable means to ascertain detailed production information, including the means to distinguish products made from different factories, made with different components, at different times or have other material differences that make the product non-identical from previous products.

CPSC Considers Small Products, Certain Jewelry, Etc. "Impracticable" to Mark

The CPSC believes that the "tracking label" requirement sets forth the expectation that, in most instances, both the packaging and the product will be marked. The statute recognizes, however, that this might not always be practicable.

Circumstances where the CPSC considers that marking the product itself might not be practicable include:

if a product is too small to be marked;

if a toy is meant to be stored in a box or other packaging, such as games with boards and small game pieces;

if a product is sold through a bulk vending machine;

if a physical mark would weaken or damage the product or impair its utility;

if a product surface would be impossible to mark permanently such as those made of elastics, beads, small pieces of fabric (such as jewelry, hair ornaments, etc.), or craft items like pipe stems, or natural rocks.

if the aesthetics of the product would be ruined by a mark and a mark cannot be placed in an accessible but inconspicuous location.

Only One of Items Sold in Pairs or Integral Part of a Set Must be Marked

The CPSC believes that for items meant to be sold as sets or pairs and that function only as sets or pairs, only one item of the pair, or an integral part of the set would need to be marked. Shoes are an example. This situation is similar to the circumstance recognized in legislative history of a game with small pieces not needing marking on all the small pieces. CPSC expects that items which can be separated and sold separately would need to be separately marked.

¹The CPSIA states that effective August 14, 2009, manufacturers of children's products place permanent distinguishing "marks" on those products and their packaging, to the extent practicable, that will enable (i) the manufacturer to ascertain the location and date of production of the product, cohort information (including the batch, run number, or other identifying characteristic), and any other information determined by the manufacturer to facilitate ascertaining the specific source of the product by reference to those marks; and (ii) the ultimate purchaser to ascertain the manufacturer or private labeler, location and date of production of the product, and cohort information (including the batch, run number, or other identifying characteristic).

²Children's products" under the CPSIA are consumer products designed or intended primarily for children 12 years old or younger. In determining whether a consumer product is primarily intended for such children, the CPSIA outlines certain factors to be considered, including a statement by the manufacturer about the intended use of the product, etc.

³Enacted as Public Law 110-314 on August 14, 2008.

(See ITT's Online Archives or 05/28/09 news, 09052810, for most recent BP summary of the tracking label requirement, with links to other summaries.

See ITT's Online Archives or 05/19/09 news, 09051920, for BP summary of the May 12, 2009 CPSC public meeting on the CPSIA tracking label requirement.

See ITT's Online Archives or 05/15/09 news, 09051510, for BP summary of the Commissioners' tied vote on an industry request for a stay of this requirement.)

CPSC Statement of Policy on "tracking labels" (posted 07/21/09) available at http://www.cpsc.gov/about/cpsia/sect103policy.pdf)

FAQs with six new questions (posted 07/22/09) available at http://www.cpsc.gov/about/cpsia/sect103.html103q8

CPSC Commissioners' statements (posted 07/21/09) available at http://www.cpsc.gov/library/foia/ballot/ballot09/tracklabelpolicy.pdf