Category: Third-party Testing

CPSC General Counsel Clarifies Distributor Responsibilities for Children’s Apparel

~ Rick Brenner ~ Leave a comment

Ever since the early years of our industry there aren’t many promotional products distributors who would describe themselves as manufacturers.  But under the Consumer Product Safety Improvement Act (CPSIA), the majority of promotional products distributors –at least those who buy blank apparel from a wholesaler and then send it out to have it decorated—are just that, manufacturers in the eyes of the law.  Now for the first time, as a follow-up to questions posed at PPAI’s Product Safety Summit this past August in New Orleans, the General Counsel of the U.S. Consumer Products Safety Commission (CPSC) has put in writing exactly how the senior staff at the Commission regards the responsibilities of distributors who decorate.  This written guidance doesn’t change anything from the Commission’s perspective but it might surprise many distributors to learn of the extent of their responsibilities under the law.

The issue we’re discussing is related to children’s apparel – tee shirts, baseball uniforms or sweat shirts, among others – and the amount of lead that might become part of these garments through the inks or other surface coating materials that are used in the decoration process.  Current law limits this lead content to no more than 90 parts per million (ppm) for any “articles intended for use by children.”

So how does a distributor become a manufacturer when they don’t manufacture the garment?   According to discussions with the Commission, the original manufacturer of the garment is responsible for compliance of the garment as they sell it, whether blank or decorated.  If it is a children’s product – often obvious with apparel because of children’s sizes – the garment manufacturer must comply with all the provisions of CPSIA for lead in the substrate of the product (100 ppm) and lead in any paint or surface coating (90 ppm).  This manufacturer must include a permanent tracking label on the garment as well.

But according to a 2009 meeting between PPAI and CPSC, the Commission has made clear that if a promotional products distributor buys a blank and compliant garment and then performs an operation that transforms the garment in any way before the garment is sold to the end buyer, then that distributor is responsible as a manufacturer for whatever “transforming” operation it may have performed itself or contracted to have done – such as tie-dyeing, stain proofing, embroidering, adding a press-on applique or simply silk screening the garment.  The distributor’s “manufacturer” responsibilities include obtaining a test from a CPSC approved third party laboratory confirming the lead content of the surface coating and applying a permanent tracking label to the garment to cover the decoration.  This tracking label is in addition to any tracking label that may have been applied by the blank garment manufacturer such as Gildan, Hanes or Champion.

Some promotional products distributors have wondered why they should be held responsible for ink applied by their decorator.   We posed this question to Ms. Falvey who explained that the responsible party depends on how the transaction is structured between the distributor and the decorator.  If a decorator buys a blank garment from an apparel wholesaler, decorates it and then sells the final decorated product to a distributor, then the decorator is responsible as the manufacturer.   But if a distributor buys a blank garment from an apparel wholesaler and then sends it to a decorator to be personalized, the distributor is the manufacturer.  The decorator in the latter case is simply a subcontractor to the distributor.

So what is the new guidance that Ms. Falvey has written to help distributor “manufacturers” understand their obligations under CPSIA?  It has to do with third party testing and the extent of the distributors’ responsibility to verify that their decorator is using compliant ink.   A question was posed to Ms. Falvey as to whether or not a distributor could rely on a decorator’s certification that their inks were compliant without having to personally test the inks or the finished garments, as long as the decorator indicated that the inks were tested once per year.

Ms. Falvey writes: “The short answer to that question is yes. The certificate from the imprinter (or firm applying the ink) can cover multiple batches or lots of production.  The only caveat is that the firm selling the imprinted item (distributor) must have exercised an appropriate level of due care to ensure that the ink being used by the imprinter is the same that is covered in the certificate such that each additional batch or lot of production will continue to comply with all applicable children’s product safety rules.”

For promotional products distributors, the CPSC guidance is a bit of a good news/bad news scenario.  The good news is that distributors can rely on a decorator’s certification without having to test every garment order at a third party lab.  The bad news is that the Commission has set a very high bar of responsibility for the distributor to independently verify that the inks that the decorator is using for every order are the same as what is covered by the certificate and that each additional batch is compliant as well.   Each distributor will have to determine how to fulfill these responsibilities but it is clear that the distributor will have to go far beyond keeping a current certificate on file.  If a recall or non-compliant garment issue arises, Ms. Falvey’s letter makes clear that the distributor will need to prove to the Commission that it exercised “an appropriate level of due care.”

From a common sense perspective, a distributor could and should visit their decorators periodically, learn about their ink procurement and testing procedures, review their third-party test documentation and do whatever they would normally do if they had their own factory or decorating operation to ensure that the operation is compliant.   If a distributor does not want to do this, or doesn’t have the expertise, he or she should discuss with their legal counsel whether or not it is worth the risk to continue to be responsible for decorating children’s apparel.   There is already one case in the past few months of a John Deere tee shirt recall in Canada for high lead in the decoration.  Recalls are very expensive not to speak of other costs and penalties possible under CPSIA.  In addition, ink is only one of the materials that may need to be tested.  If the decoration involves an applique, the glue and other material in the applique must also be third party tested as it all constitutes a surface coating.

Another strategy is for distributors to continue to sell children’s apparel but to purchase it as a finished product from a compliant apparel decorator.  Distributors would still want to exercise due diligence that the decorator is compliant – just as they would in purchasing children’s products from any supplier – but they wouldn’t have the manufacturer’s responsibility under CPSIA for testing and tracking labels.

Finally, as with all regulatory matters, in addition to the practical and common sense aspects, the matters discussed in Ms. Falvey’s letter are legal issues and I am not a lawyer.  Nothing that I have written in this or any other article should be construed as legal advice.  All industry participants – suppliers and distributors – would be well served by consulting with a product safety attorney who regularly practices before the Consumer Product Safety Commission and is an expert in CPSIA matters.

Falvey Letter Re Decorating and Tracking Labels

Updated Toy Safety Standard takes Effect June 12. New Tests Required!

~ Rick Brenner ~ Leave a comment

If you import children’s toys, or if you’re a promotional products supplier with children’s toys in your line, effective tomorrow you’ll need to comply with an update to the mandatory Federal Toy Safety Standard.  Among other changes, this revision (ASTM F963-11) adds limits for the soluble amount of eight metals (antimony, arsenic, lead, barium, cadmium, chromium, mercury, and selenium) permitted in toy substrates.  The change is effective for toys manufactured or imported after June 12, 2012 for children 14 years of age or younger.

The ASTM F963 Toy Safety Standard used to be voluntary.  But in 2008, the Consumer Product Safety Improvement Act (CPSIA) made ASTM F963 a mandatory standard.   At that time, the current version of the Toy Safety Standard was F963‑07 with the “07” signifying the year that the latest revision was adopted.  Since then, CPSC has voted to adopt two newer revisions – one issued in 2008 and the latest in December 2011.  In February 2012, the Commission announced in the Federal Register its decision to adopt ASTM F963-11 effective as of June 12, 2012.

For the moment, the law requires you to comply with every provision of the new standard – including the 2011 changes – but doesn’t require you to use a CPSC certified third-party lab to test for the 2011 changes.  The reason is that the Commission has not yet voted to adopt recently proposed rules for third party laboratories which it published in the Federal Register on May 24, 2012.  Comments on these proposed rules are not due until August 7, 2012.

If you have another reliable way to verify compliance for the F963-11 changes—perhaps by testing with an XRF instrument—you could avoid, until CPSC adopts the new rules, the cost of testing the 2011 updates at a third-party lab.  However, this waiver only applies to the F963-11 changes.  You’ll still need a test from a CPSC certified third-party laboratory for the portions of ASTM F963-11 that are “functionally equivalent” to F963-08.

The risk of third-party testing now for the new requirements of F963-11 is that when the proposed rules are finally adopted by CPSC, the lab you choose may not be accredited for the new requirements and you will have to retest at an approved lab.  In my opinion, this is a very minor risk compared to the risk of not having an independent test confirming that your toy complies with the new requirements.

CPSC addressed this in an FAQ on its website:

In the event that a manufacturer or importer wishes to have its products tested now – in the hope that testing to the -11 version eventually will be accepted by the CPSC – that manufacturer or importer should check with its current CPSC-accepted laboratory to see if they will be applying to the CPSC for acceptance of the -11 version. If so, and if the lab satisfies other conditions spelled out in the draft document, then the Commission likely will accept that testing upon its approval of the new Notice of Requirements. (This is not a guarantee of the Commission’s action, but the Commission traditionally has permitted acceptance of such testing, provided that all the other conditions are satisfied.)

It’s always a treacherous scenario in our industry when the law requires strict compliance with a set of standards but doesn’t require third-party testing.  For one thing, it places an extra burden on distributors – to verify that the toys they’re purchasing are compliant with the new standard if the supplier or factory does not have a third party lab report verifying compliance.

My advice is to not buy any toy that is imported or manufactured after June 12, 2012 unless you get a report from well-known third-party laboratory verifying compliance with all the provisions of ASTM F963-11.

For promotional products distributors who maintain test reports in their files of children’s toys they order frequently, or for those who have children’s toys in company stores or in other co-op programs, be sure to go back to your supplier for an updated test report.

The full text of the FAQ from the CPSC website can be found at http://www.cpsc.gov/info/toysafety/plain.html

Loopholes in Product Safety Law Put Compliance Burden on You

~ Rick Brenner ~ Leave a comment

You sell a product to a Little League for distribution to seven year olds.  Would your client expect the product to comply with Federal children’s product standards?

The answer, I suspect, is a resounding “yes” just as you would expect the toys you buy for your own kids to be able to pass the Federal Toy Safety Standard and the food you purchase to be able to pass FDA food standards.

Unfortunately for the promotional products industry, things are not that simple.  The Consumer Product Safety Improvement Act (CPSIA) – the Federal law that governs children’s products – includes a basic definition for children’s products that is ambiguous at best.  The agency that enforces this Act, the Consumer Products Safety Commission (CPSC), came up with an enhanced definition that introduces new issues as it tries to clarify the original.  Take the case of a simple water bottle destined for a second grade Little League team.  If the name of the team is imprinted in a plain type style the bottle is considered a general use item – not a children’s product – because CPSC says it appeals to all ages including the 7 year old Little Leaguers.   Most importantly, general use items don’t have to comply with children’s product standards.   But the identical water bottle decorated with a Winnie the Pooh type character – something that would only appeal to the young children – is considered a children’s product and has to comply with the CPSIA standards.  Same bottle.  Same kids.  Different decoration.  One has to comply, one doesn’t.

Say that your order was for the plain type version – the one that doesn’t have to comply with CPSIA.  And say that the plastic lid of the bottle you sell the Little League happens to contain 1,000 parts per million (ppm) of lead – 10 times the CPSIA limit for children’s products.  Now imagine that some consumer advocacy group gets hold of one of those bottles, tests it and then tells the league it intends to send a press release to the media that Little League is distributing lead-laden bottles to seven year olds.  Do you think the league administrators or the parents would be comforted or placated by your explanation that the product is a general use item that doesn’t have to comply with children’s product standards?  Not likely.

One reason for these challenges in our industry is that most promotional products are not “children’s products” as blank, undecorated products.  Non-children’s blanks only become children’s products if they are decorated with a juvenile design and even then only if the products are “mainly” for children 12 and under and have declining appeal to older kids.

Suppliers deal with this blanks-that-could-become-children’s-products challenge individually.  Some test all of their products to children’s product standards, some indicate on their websites the specific products which have been tested and for some you may have to make a call to find out which products are compliant and have been tested.    The most important point is that the burden is on you to find this information out before you place your order, to avoid selecting a product which has not been tested as compliant.

In summary, when kids are part of the audience for the products you sell, my advice is to ignore the loopholes in CPSIA and insist on choosing products that have been tested by a third party lab as compliant with children’s product regulations.    Just keep reminding yourself, “If children are involved, would my client expect the products I’m recommending to have been tested to children’s product standards?”  Let that be your guide and you’ll never go wrong.

Time to Take a Closer Look at the Test Reports in Your Files

~ Rick Brenner ~ Leave a comment

With the deadline for mandatory third party lead testing less than two months away, now would be a very good time to take a closer look at the third-party test reports in your files. There’s a good chance that upon closer inspection you might find that for certain products the reports you’re relying on for compliance might not be very reliable.

In the Consumer Products Safety Improvement Act (CPSIA), Congress mandated that an accredited third party laboratory must test children’s products before they can be distributed in commerce. Testing for lead in paint or surface coating has been required since December of 2008. Testing for lead in substrate will take effect on January 1, 2012.

So what are the reliability concerns I’m raising?

While some question the accuracy of the tests – by showing inconsistent results from one lab to the next—that isn’t the issue I see. My concern is more serious—that some of the test reports you receive may not even be for the same product that you’re selling. In those cases, the reports are not reliable and provide a false sense of security to you and to your customers.

Here’s one way that happens:  Instead of ordering tests for their own products, U.S. importers often turn to their overseas factories for testing. But some of these factories—particularly ones that supply similar versions of their products to multiple customers in the US—may try to mitigate the cost by testing only a small subset of their products—sometimes only one SKU out of a varied line of products. Instead of testing the actual products as produced for each of their customers, they send a generic version of their product to a lab and then they give these test results to every customer who requests a test report. I’ve seen tests like this more times than I can count.

So what’s the problem with this practice?

Well, there’s no problem with a U.S. importer having their overseas factory order the testing from an accredited lab as long as the tested version of the product is exactly the same in all material respects as the product they’re selling—same item, same finish, same color, same trim, same design, same paint and substrate materials, same raw material supplier, and the same factory. But that’s often not the case.

The more common scenario is that the generic version is similar but different from your product. It might be a different material or color, have different trim details or include additional features from the generic version.  Any of these differences requires a separate third party test.

Another possibility is that the report you have is for a completely different product from yours. Overseas factories don’t always test every product they produce.  I’ve seen cases where a factory will respond to a test request by sending any report they have in their files.  Unless the US firm receiving the report is trained in what to look for, these reports are often accepted as is and passed along to customers.

So how can you tell if your report is really for your product?

  1. Is the product named in the report exactly the same way as it is listed on the web or in the catalog where you found it?  If your product is a Bonzo HT-341 in midnight blue, does the test report say Bonzo HT-341 in midnight blue?  Be wary of reports with generic product descriptions like “Plastic Bottle” or “Tote Bag” and few product details.
  2. Does the test report include a picture of the product?  Is the picture exactly the same as your product and does it include your color?  The best test reports include detailed photographs of the actual products tested.
  3. Look for the name of the company who ordered the test. Is it the same as the company you are buying the product from or is it a company you’ve never heard of?  There’s no problem with tests ordered by overseas factories if they’re for your actual product but be wary of reports ordered by factories for generic versions of their products.

These tips are just a few of the basics in evaluating test reports. I’ve listed several others in my September 30th article If You Sell Promotional Products, Learn to Read a Test Report. And if you’re a PPAI member, check out the November 2nd webinar entitled How to Read a Test Report. It is archived on PPAI’s website.

Test reports are an important part of your due diligence to ensure that the products you’re selling comply with applicable law. Your customers are relying on the integrity of the reports you provide. Take this opportunity to go through your files to verify that you have current test reports for the products you’re selling and that the reports really are for your specific products.

Distributor to Supplier: Is this Product OK for Children?

~ Rick Brenner ~ Leave a comment

I received a call last week from a distributor concerned about an order she had recently shipped through an industry supplier for a children’s event. The distributor told me she had inquired of the supplier’s customer service rep if the product was OK for children but was now wondering what else she should have done. Here is a capsule of what I recommended.

Start by asking for the product’s General Certification of Conformity (GCC) as well as its most recent test reports. A GCC is required by federal law for every consumer product subject to any rule or regulation enforced by CPSC. Regardless of what the test report says, the GCC is the best way to find out if the supplier considers the product as a “children’s product.” If the supplier does not, even if the test report passes CPSIA standards, it is a red flag that the supplier might not be monitoring each production run to children’s product standards.

Recommendation 1 (Children’s Product): If you sell a product that you know is intended for children, be sure that the supplier acknowledges through the GCC that it is a children’s product. Then, if something goes wrong later, you won’t risk being in the position of the supplier saying “we didn’t know it was for children and we never said it was a children’s product.”

So how do you find out from the GCC if the supplier considers the product a “children’s product?”  You do so by examining the section of the GCC listing the applicable regulations. CPSIA requires the importer or domestic manufacturer to list every CPSC-enforced rule that applies to the product. If the supplier doesn’t have a GCC for the product, or if the section noting the applicable rules is blank, it means that the supplier is not acknowledging that the product is a children’s product or a children’s toy.

If the item is certified for use as a children’s product you will see at least two rules listed. The first is CPSIA lead-in-substrate, sometimes called total lead. The second is lead-in-surface coating, sometimes called 16 CFR 1303. Lead in substrate refers to lead in the material that the product is made of. Lead in surface coating refers to lead in any painted surfaces or in the imprint.

If the item is certified as a children’s toy you will see at least two more rules in addition to the two lead provisions. One is the mandatory toy safety standard called ASTM F963. That used to be a voluntary standard but Congress made it mandatory when they passed the Consumer Product Safety Improvement Act (CPSIA). The second toy related rule applies to chemicals referred to as “phthalates.” CPSIA prohibits the sale of children’s toys with concentrations of more than .1% of any of the phthalates DEHP, DBP, BBP, DINP, DIDP and DnOP.

Recommendation 2 (Children’s Toy): Same concept as recommendation 1. If you sell a product that you know is likely to be used a children’s toy, be sure the supplier acknowledges through the GCC that it is a children’s toy.

The GCC requires other information you should note as well. First, make sure that the product identified on the GCC is exactly the same as they one you’re buying. Second, look for the name of the U.S. importer or domestic manufacturer certifying compliance of the product.  Is it the name of the supplier you’re ordering from?  If not – perhaps because the supplier bought the product from a local wholesaler – is it a company you know and are comfortable with? The name on the GCC is the party certifying compliance – the party legally responsible if something goes wrong – and ultimately the party you’re entrusting with your client’s logo. And if this isn’t challenging enough, if the supplier buys a blank from an importer and then decorates the product, you need two GCCs – one for the product and one for the decoration.

Recommendation 3 (Responsible party): Look at the GCC for the party certifying compliance. If it is not the supplier you’re buying the product from then learn who the importer is and whether it is someone you feel is reliable. Also, in that circumstance, find out if the decoration is to be applied by the importer or someone else – your supplier or a sub contractor. If the answer is “someone else” you’ll need a separate GCC for the decoration.

The next important point relates to testing. The GCC requires the date and place where the product was tested for each regulation cited on the GCC and it requires the identification of any third-party laboratory on whose testing the certification depends. Look at the test reports you received and be sure they correspond to exactly what you see on the GCC. The lab name, test date and tests listed should match one for one with the same information noted on the GCC.

Recommendation 4 (Testing): I have written previously on the topic of how to read test reports to be sure your product complies as well as on the limitations of these reports. Review these articles at http://rickbrenner.com and keep them handy for reference. In a nutshell, be sure you have a current test report from a CPSC-certified third party laboratory, that the report is for the identical product, SKU number and color that you ordered, that it includes legible photographs of the product, and that it certifies compliance with every regulation identified on the GCC. You should also be sure that the test report is based on the most current version of the law. A passing grade from June 2011 doesn’t necessarily mean that the product passes the new lead threshold that took effect in August 2011.

There are a few other things to note as well:

  • A separate GCC is required for every production run – indicating the manufacture date. Be sure that that the GCC you receive is specific to the product you’ve received.
  • Ask your supplier to confirm that the product you are receiving is being manufactured in the same factory where the tested product was manufactured, that there have been no changes in the design or bill of materials since the test and that the tested product was produced from the same raw materials as your production pieces. If not, you should insist that your production pieces be tested.
  • It is best to communicate directly with your supplier’s compliance department or the supplier’s person responsible for compliance. Product safety laws are complicated and evolving. The people most likely to know the most are those who deal with compliance every day. My recommendation is to deal with suppliers who are knowledgeable about these product safety and compliance matters and who provide you with direct phone and email access to get your questions answered.
  • This article applies specifically to the children’s product provisions in the Consumer Product Safety Improvement Act (CPSIA). There are other federal product safety regulations and there are several state regulations. PPAI has developed an excellent tool called Turbo Test to help distributors and suppliers determine the regulations that may apply to a wide range of products in the industry and PPAI also has a relationship with a third party laboratory that is available to advise members. Also, there are many attorneys whose practices include a specialty in product safety legislation.

Prime Sample GCC

CPSC Sample Format – GCC   (Note: This link also includes an FAQ from the Commission about GCCs)

If You Sell Promotional Products, Learn to Read a Test Report

~ Rick Brenner ~ Leave a comment

I know, I know. Boring technical jargon. It’s all true.

But unless you have someone else in your company to take care of this for you, you can’t afford not to know how to read a test report.

There’s an easy way and a hard way. I’ll show you the easy way.  The hard way is to find out that the product you thought was compliant isn’t compliant and that the official looking test report you’ve got in your file is out of date, not relevant to your specific product or doesn’t include all the tests you need.

I know. I learned the hard way.

Back in 2007, when the testing mania began and before we started ordering our own tests, we asked all of our factories to send us test reports for the products in our line. This was a year before CPSIA, before phthalate limits, before lead-in-substrate limits, and before mandatory ASTM F963. The only federal lead restriction was the 600 ppm limit for lead in paint or surface coating – the one that tripped up Mattel with their Barbie Doll recalls.

We received plenty of official looking reports and most of them from well-known testing labs. They referred to tests and codes like EN71, RoHS and 16 CFR 1303. Some included photographs, some did not. We dutifully filed them away and provided them on request to any distributor who asked – the ones doing business with corporations who have really knowledgable compliance people. And that’s when the education began – when those people saw the holes in some of the reports we provided.

“This report is dated 2005. Do you have a current one?”  “The product in this report is a tumbler but it doesn’t look anything like one than we’re buying.”  “EN71 is for Europe. Do you have a test report for the US standard ASTM F963?”

You get the idea. Almost none of the reports were for the actual products in our line. Most were outdated and covered mostly European standards.

Bullet point one: If the test isn’t for the exact product you’re purchasing, it doesn’t mean anything. Never mind that the factory says it’s made of the same material. If you’re purchasing Prime’s LT-3290 then the test report needs to say LT-3290. And it should have a picture so you know for sure that the test is for the same product you’re ordering.

Bullet point two:  The test should be current. The date is critical because the standards have changed. It doesn’t help you to have a lead test dated April 2011 if the bag you’re buying was manufactured in September. The lead standard in April was 300 ppm. After August 14 it changed to 100 ppm.

Speaking of ppm, that’s just a way of expressing a very dilute concentration of a substance. It means one out of a million the way percent means one of a hundred. So lead of 90 ppm means 90 parts out of a million. Bullet point three: Since the number is critical, make sure the test report shows the actual number – not just PASS or FAIL. Without that number you can’t tell if the product complies with the current standards in the law. In CPSIA particularly the lead standards have been continually phased down since August 2008.

Bullet point four: Don’t assume that the test covers everything. Last year we received a passing test report for a small battery powered stuffed toy. The test passed but the battery compartment wasn’t included in the sample tested. After 5,000 pieces were produced we learned that the battery compartment didn’t comply and required several thousand dollars of rework. Expensive mistake.

Labs only perform the tests that they’re asked to perform, just as in the stuffed toy example. So if you see a report with a passing lead test, look closely to see what it is covering. CPSIA requires two different lead tests. The first is for lead in the material itself – sometimes called total lead or lead-in-substrate. (The actual wording in CPSIA is “total lead content by weight for any part of the product”). That limit is currently 100 ppm for children’s products. The second requirement is for lead in any paint or surface coating. That could either be a painted surface of the product itself or the imprint/applique that the supplier or decorator applies. Normally ink used for printed material like books and catalogs is considered part of the material. But heat transfers, pad printing and silk screening inks – particularly if they can be scraped off – are usually considered surface coating. The lead limit for paint and surface coating is 90 ppm. So you need a test for the lead in the material and a separate test for lead in any surface coating.  The lead in material test is usually labeled on a test report as something like “CPSIA Lead in substrate.”  The lead in surface coating test is usually labeled 16 CFR 1303 for the section number of the Code of Federal Regulations (CFR) containing the regulation.

Bullet point five: European standards are for Europe. US standards are for the US. They aren’t the same. If you see a passing test report for EN71 – the European toy safety standard – don’t assume that the product will pass ASTM F963 – the US toy safety standard. They’re different.

Bullet point six:  If your product happens to be a toy, it needs to comply with the the Federal Toy Safety Standard usually referred to as ASTM F963. This used to be a voluntary standard but in CPSIA – the Consumer Product Safety Improvement Act – Congress made it mandatory. ASTM F963 isn’t one test – it’s 67 pages of various tests for which toys need to comply. If you drop the toy from three feet will it shatter?  Is it a choke hazard?  Does it have sharp edges? Lots of things like that. So if your product is a toy, be sure that the report states that it is fully compliant with all applicable tests from the current ASTM F963 standard. Most labs will do that automatically but remember our battery compartment experience.

Bullet point seven: Toys (and child care items) need to be tested for six phthalates: DEHP, DBP, and BBP, DINP, DIDP, and DnOP. These are plasticizers – chemicals added to make plastic more flexible like the strand that attaches the ear buds to your iPod. The maximum limit for each of these phthalates is .1 percent. Make sure the test report lists all six and indicates that there is no more than .1 percent of each one.

These are the basics for the tests required by CPSIA. There are certainly plenty of other possible tests if your product is subject to another Federal Act, ban or regulation. And there are state regulations too. But let’s save those for a future article.

Remember these seven bullets and you’re 90% of the way there.

Is it a toy? We may find out soon.

~ Rick Brenner ~ Leave a comment

Think you know a toy when you see one?  We should soon find out if the Consumer Product Safety Commission agrees with you.

At last month’s PPAI Product Safety Summit in Denver, CPSC Director of Regulatory Enforcement Mary Toro told attendees that the Commission is working on new guidance regarding toys.   The implication for suppliers in the promotional products industry is significant – whether “executive toys” like stress relievers, puzzles and desktop games will fall under the CPSIA toy definition.  If these products do fall under CPSIA, the law requires that they undergo much more expensive testing than other children’s products.

Ever since the Consumer Product Safety Improvement Act (CPSIA) was signed into law by President Bush in August 2008 there has been controversy about the definitions that Congress wrote into the Act for children’s products and for toys.  For children’s products Congress said that the product had to be “intended primarily for children 12 years of age or younger.”   For toys, Congress left out the word primarily stating simply that “the term children’s toy means a consumer product designed or intended by the manufacturer for a child 12 years of age or younger for use by the child when the child plays.”

In September 2008, at the first public meeting CPSC held after the law was enacted, I posed a question to CPSC senior staffers about executive toys and specifically about stress relievers.  Another attendee asked about an executive basketball hoop that mounts on the back of an office door and is distributed as a free gift with Quervo tequila. Neither one of these examples is sold for  young kids, particularly the liquor promotion.   Cheryl Falvey, the chief legal counsel for CPSC, said that the staff would have to consider these questions carefully but noted that because Congress didn’t say they had to be primarily for 12 and under that it would be difficult question.  She also added, “..as a mother I can tell you that it’s likely they’ll end up at home in the toy box.”

More than a year later, at an ICPHSO product safety conference in February 2010, I again posed the same question to Ms. Falvey. She noted that the Commission was working on a new guidance document to help clarify the ambiguities surrounding the term children’s product.  That document, entitled Final Interpretive Rule on Definition of Children’s Products, was released later that year and approved by the Commission in September 2010.  But while it provided guidance on how to determine if a product is a “children’s product” under CPSIA, it didn’t answer the open questions about toys – and particularly about executive toys.

What’s at stake?   Potentially tens of thousands of dollars per year in third party testing for suppliers who have executive toys in their line.   For children’s products, CPSIA requires third party lead testing – relatively inexpensive tests that are usually no more than $50 and sometimes much less.  But for children’s toys, the Act requires more. Toys must comply with the many provisions of a 67 page Toy Safety Standard known as ASTM F963.  This used to be a voluntary standard but in CPSIA Congress made it mandatory. In addition, toys cannot contain more than .1 percent of six different phthalates.   ASTM F963 testing and phthalate testing are not inexpensive like lead tests. F963 testing runs upwards of $500 for a single toy and phthalate testing can be even more.  We typically budget at least $1,500 per toy for testing.

To be sure, there are many suppliers who will commission ASTM F963 testing even if their executive toys are not covered by CPSIA, Prime included.  The toy safety standard includes many tests that confirm the quality and integrity of a product – drop tests, sharp edges, choke hazard, material quality, etc.  But for products marketed primarily to adults, it will give much more flexibility to the industry if suppliers have the choice on a product by product basis to conduct their own risk analysis and determine what to test rather than a government mandate.  Hopefully the Commission will feel the same way.

The Problem with Test Reports

~ Rick Brenner ~ Leave a comment

It was one of our hottest selling bags and we were flat out-of-stock.  At least a dozen backorders had already piled up by the time the container with 150,000 new pieces finally arrived at our receiving dock.

The product, a polyester backpack with a zippered pocket, came in four colors, each with a matching coated zipper pull.  The arriving pieces should have gone into production as fast as the container was unloaded.  Instead, I received a chilling email from my in-house testing lab:

Product failed XRF test upon receipt. Lead: 4,600 ppm in surface coating of zipper pull. Shipment quarantined.

4,600!  The legal limit was 600 ppm if those bags were decorated for children.  How could it be?  Didn’t we have a pristine test report from a major third party lab just weeks earlier?

Yes, it was true.  This shipment failed but weeks earlier we had received a current test report in which the same product from the same factory passed every test with flying colors, and from one of the most respected CPSC-certified labs in the world.   What could have gone wrong?

A lot went wrong, we learned.  To begin with, the sample that was sent to the testing lab was made from a different batch of material than the production pieces.   That’s not unusual.  As long as the product spec, bill of materials and factory doesn’t change you shouldn’t have to send every batch to be third party tested.

But that’s the point.  Something obviously did change but no one knew about it.   Maybe not even the factory.  It’s the same thing that happened to all those Barbie Dolls® back in 2007.  In this case it was the zipper pull.  The production pieces were sprayed with a different coating than the sample.

So what can we learn from this incident?   Does it mean you can’t rely on third party test reports?

No, the report was fine.   The sample that passed the test was fine.  The problem was the factory, not the testing lab.

Factories assemble products from raw materials and components that they buy from other suppliers.  A bag factory will buy fabric, lining, metal, paint, grommets, thread, handles, wheel assemblies, binding, and whatever else they need from a a variety of sources.   If they are required to make a product that complies with 100 ppm lead, that’s what they’ll specify to their suppliers.  But how many factories are equipped as we are to scan every incoming shipment to verify that it complies with the spec?  Very few, if any, in my experience.  They rely on the integrity of their supply chain and sometimes that supply chain lets them down.

The problem could be with just a portion of an order.  Maybe the factory runs out of a particular material and needs a little extra to complete the order.  But their main supplier is out of stock, or won’t accept orders for small quantities.  So the factory goes elsewhere to fill the need.  Maybe the extra material complies, maybe not.

It’s why Prime and other quality suppliers who buy from dozens of factories in China and elsewhere can’t rely on a once per year third party test report.  In our case, we’ve had our testing lab in-house since October 2007 – to check every incoming shipment, no matter what the previous test report says.   Other quality oriented suppliers in the industry do the same, either in China or in the US.

The most important lesson is to understand that compliance is not a destination.  It’s not something that you do once or periodically.  It’s a journey, day in and day out.  The process never stops.  Whatever you did yesterday means little for the product that is produced tomorrow unless you work as hard at being vigilant tomorrow as you did yesterday.

For distributors the lesson is to know your supplier well.  Understand that test reports are only one indication of a good compliance program.  There are many suppliers in the industry with rock solid compliance programs that you can rely on.   Visit with your suppliers whenever you can, either in person or at trade shows, ask to meet or speak with their compliance officer.  Ask what kinds of checks and balances the supplier uses to guarantee consistent, safe and compliant product.

Remember:  In a great compliance program third party test reports are just the tip of the iceberg.