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The Consumer Product Safety Commission (CPSC) regulates a wide range of consumer products, domestically manufactured or imported into the United States. Ensuring CPSC compliance is serious business: non-compliance may result in fines up to US$15.5 million.
In this article we explain how to determine whether a product is regulated, ensuring compliance with relevant regulations and how you can avoid having your goods confiscated by the customs at the Port of entry.
The Basics of CPSC Acts & Regulations
In the United States, consumer products are in general not regulated by “all-in-one” directives, but rather a number of (sometimes overlapping) Acts and Product Safety Standards. Cosmetics is one such product. If you’re importing cosmetics, you need to ensure compliance with 4 different Federal Standards:
CFR Title 21 & 16
Food, Drug and Cosmetics Act
Safe Cosmetics Act 2011
Fair Packaging and Labeling Act
Apart from Federal Regulations, there are also state regulations that cosmetic products must be compliant with:
California Proposition 65 – lead in cosmetics
California Air Resources Board (CARB)
Six different standards for one product, that’s a lot to handle for a small business. Still, cosmetics are a complex and highly regulated – but serves as a good example. However, CPSC is not a product safety directive. In other words, there’s no general “CPSC” directive to refer to when sourcing products in China (unlike in Europe, where uniform certification standards often apply to a specific product or group of products).
The CPSC is a government authority that administers several product safety Acts passed by the U.S. congress. As of today, these include the following Acts:
Consumer Product Safety Act (CPSA)
Consumer Product Safety Improvement Act (CPSIA)
Federal Hazardous Substances Act (FHSA)
Flammable Fabrics Act (FFA)
Poison Prevention Packaging Act (PPPA)
Refrigerator Safety Act (RSA)
Each one of these Acts regulate certain products and/or substances. Essentially, there are two types of CPSC acts:
1.) Acts that target specific products (e.g. Bunk Beds and Toys)
2.) Acts that target certain substances (e.g. Formaldehyde and Antifreeze)
It’s easy to determine which regulation applies to a certain product, if it’s explicitly mentioned in the list of Regulated Products. However, CPSC regulations also apply to products that are not explicitly mentioned in this list. A long list of chemicals and substances are also regulated:
A wide range of products are potential carriers of the regulated chemicals and substances, which in turn are covered in the Federal Hazardous Substances Act (FHSA) and/or the Poison Prevention Packaging Act (PPPA). For example, certain textiles contain Formaldehyde – a substance regulated by the FHSA. Therefore, Formaldehyde testing is recommended if you’re importing apparel or other textile products.
“Are all Chinese suppliers compliant with CPSC regulations?”
Absolutely not. Let me explain. Ensuring CPSC compliance requires that a supplier maintains tight control over the materials and components purchased from subcontractors. The supplier must also ensure that noncompliant materials and components are kept separated during storage and production.
While the United States is a main market for many Chinese suppliers, only a minority is able to ensure compliance with the relevant product safety standards. Verifying previous compliance with a supplier must be done before an order is placed. Never assume that a Chinese supplier is even remotely aware of the relevant U.S. standards and how these apply to their products. Many Chinese suppliers can’t even list the chemical components used in their products.
Still, plenty of American importers assume that ensuring compliance with US regulations is the supplier’s responsibility. However, foreign suppliers (in this case Chinese) are not regulated by US Federal Acts. This is clearly stated in Title 16 of the Code of Federal Regulations:
“Manufacturers and importers are responsible for ensuring that their products meet any mandatory standards or regulations prior to those products being distributed in commerce, in most situations”
How to ensure CPSC Compliance when importing from China
As I mentioned previously in this article, there’s no “all-in-one” CPSC directive to refer to when importing from China. Different standards and regulations (Acts) applies to different products and substances. Thus, the first thing you need to do is to confirm which Act/s your product is legally required to be compliant with:
1.) Is your product mentioned in the list of regulated products?
2.) Which Federal Act applies to your product?
A product that is not explicitly mentioned might still contain one or more regulated substances. In these cases, you research whether your product is certain, or likely, to contain one or more substances regulated by the Federal Hazardous Substances Act (FHSA) and/or the Poison Prevention Packaging Act (PPPA) AND if your product may be defined as “potentially hazardous”.
If the answer is yes, you basically have two options:
1.) Unless necessary, require your Chinese supplier to not use the regulated substance/s.
2.) If usage of a regulated substance is necessary, instruct your Chinese supplier to label the products properly.
When you have determined which Act regulates your product (if any), you need to inform your Chinese supplier that you require them to manufacture products in compliance with the relevant regulation. If you don’t, the supplier will most likely not manufacture compliant products.
Even if a supplier can show previous compliance, it’s not a guarantee that your goods will be compliant. One batch of products might be compliant (due to clear buyer requirements) while the next is not. Communication is critical.
Testing imported products for CPSC compliance
Yet, mere promises mean nothing in China (always remember that the supplier is not liable for non-compliance, you are). Compliance shall be verified by a third party. This can be done by sending one or more product samples to a product testing lab. Once again, communication is critical. The testing company must also be notified of which substance and/or regulation the product shall be tested for.
Third party product testing is not mandatory for all products. However, it’s the only way to find out if your product is compliant with the relevant regulation. There are a few things related to CPSC testing that I think you should be aware of:
1.) CPSC only accepts third party testing from “accepted laboratories”. This includes laboratories both in the US and abroad.
2.) Third party testing is mandatory for children’s products. That includes ANY product that is primarily intended for use, or likely to be used, by children.
3.) Certain products are regulated by more than one CPSC standard. This requires you to test your product for all relevant standards, not just one.
4.) You don’t need to test every shipment (batch), but only if you don’t change any materials or components. If you do, you need to retest your product according to the relevant regulation. However, there’s always a risk that the Chinese supplier changes a material without notifying you.
Enforcement and Penalties
If the CPSC finds out that your product is non-compliant with one or more standards, you won’t be able to sell your product. But how could the CPSC possibly find out? There are a few ways this can happen:
1.) A product sample might be randomly selected for routine examination in the Port of entry. If noncompliance is discovered, the shipment is refused entry.
2.) The CPSC is very likely to be notified in case of a consumer incident. This is quickly followed by an investigation.
3.) CPSC inspects manufacturers (domestic, not your Chinese supplier), importers and distributors.
If the CPSC determines that your product is noncompliant, you are forced to issue a product recall. Basically, you have to buy back all products already delivered to your consumers – and halt sales of the items you still may have in your warehouse. That’s a hit few small businesses can take. Still, it’s not the worst thing that can happen.
If you are knowingly selling products that are noncompliant with the relevant regulations, you are subject to fines of up to US$15.5 million. That’s a knockout. Mike Tyson style.
It’s not that difficult
Did I make you think twice about importing from China? Well, these regulations are put in place for a reason. They are there to protect you and your family from toxic and flammable products. Yes, it’s a bit tricky to determine which CPSC regulation applies to a certain product, but you only need to do it once. Besides, your competition is not getting away either – you’re all in the same boat.
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Co-founder of Asiaimportal (HK) Limited and based in Hong Kong. He has been quoted in and contributed to Bloomberg, SCMP, Alibaba Insights, Globalsources.com, China Chief Executive, Quartz Magazine and more.
Hey there, I’m Fredrik!
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