About the CPSIA

The Consumer Products Safety Act of 1972 and The Consumer Products Safety Improvement Act of 2008

Congress enacted the Consumer Products Safety Act (CPSA) in 1972 to remedy inadequate protections available to consumers from unreasonable risks of injury associated with consumer products. The statutes adopted under the CPSA were intended to assist consumers in evaluating the comparative safety of consumer products, to develop uniform safety standards for consumer products, to minimize conflicting state and local regulations, and to promote investigation into the causes and prevention of product-related deaths, illnesses, and injuries. 

In 2008, after a wave of imported toys and consumer goods were found to contain the toxin lead, Congress enacted the Consumer Products Safety Improvement Act of 2008 (“CPSIA”)  in order to modernize the Consumer Products Safety Commission (“CPSC”) and establish more stringent consumer product safety standards and safety requirements, with a particular focus on regulating children’s products.

General Provisions of the CPSA and CPSIA

Congress established the CPSC to implement the goals of the CPSA.  The CPSC is charged with four primary duties:

1. To maintain an injury information clearinghouse for the collection and distribution of data relating to the causes and prevention of death, injury, and illness associated with consumer products;

2. To conduct studies and investigations of injuries involving consumer products;

3. To develop safety standards addressing the risk of injury in consumer products;

4. To assist public and private organizations or groups in the development of product safety standards and test methods.

One of the CPSC’s most important functions is the development and promulgation of Consumer Product Safety Standards. Consumer Product Safety Standards are designed to reduce unreasonable risks of injury associated with consumer products and can be either enforced as performance requirements, i.e., specific chemical content restrictions, or as requirements that a consumer product be marked or accompanied by clear and adequate warnings or instructions, or both. However, if the CPSC determines that a consumer product is being, or will be, distributed in commerce, that the consumer product presents an unreasonable risk of injury, and that no feasible consumer product safety standard would adequately protect the public from an unreasonable risk of injury in such a case, the CPSC may promulgate a regulation declaring such a product to be a Banned Hazardous Product. 

With the enactment of the CPSIA in 2008, the CPSC focused its attention on the stringent regulation of children’s products.  This was accomplished through the passage of various Consumer Product Safety Standards, particularly with regards to lead and phthalate content restrictions.

Under the CPSA, “Children’s Products” are defined as consumer products designed or intended primarily for children 12 years of age, or younger.  Factors to be considered when determining whether a particular product qualifies as a “Children’s Product” include: the manufacturer’s intended use of the product; the manner in which the product is represented by its packaging; whether the product is commonly recognized by consumers as being intended for use by children 12 years or younger; and a consideration of the Age Determination Guidelines issued by the CPSC in 2002.  In 2010, the CPSC defined “Children’s Products” under the CPSIA.

Under the CPSIA, it is unlawful for any person to manufacture for sale, offer for sale, distribute into commerce, or import into the United States, any children’s toy or child care article containing concentrations of more than 0.1 percent of di-(2ethylhexyl)phthalate (DEHP), di-n-butyl phthalate (DBP),  or butyl benzyl phthalate (BBP). Additionally, the CPSA makes it unlawful for any person to manufacture for sale, offer for sale, distribute into commerce, or import into the United States, any children’s toy that can be placed in a child’s mouth or any child care article that contains concentrations of more than 0.1 percent of diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).

In addition to the regulation of phthalates in children’s products, the CPSIA also enumerates acceptable lead levels for Children’s Products. The CPSIA bans lead in children’s products in concentrations greater than 100 parts per million (ppm). Additionally, the CPSIA prohibits lead in paint and surface coatings in children’s toys in concentrations greater than 90 ppm.

Compliance, Enforcement and Injunctive Relief

Manufacturers of products covered by the CPSA (i.e., products imported into the United States that are subject to a Consumer Product Safety Rule, standard or regulation enforced by the CPSC) must issue a certificate of compliance for each of those products.  The certificate of compliance must declare that the product complies with all of the rules, standards and regulations imposed by the CPSA and the CPSIA.  Such certificates must also identify the manufacturer issuing the certificate, and include the date and place of manufacture, the date and place the product was tested, each party’s name, and the contact information of the person responsible for maintaining records of the test results.

In the event that a manufacturer, distributor or retailer discovers that one of its products contains a defect that poses a substantial product hazard that party is required to immediately inform the CPSC of its failure to comply. The CPSA defines “substantial product hazard” as a failure to comply with an applicable consumer product safety rule under the CPSA and as a product defect that creates a substantial risk of injury to the public. Upon such notification, the CPSC may order the manufacturer, distributor and/or retailer of a non-conforming product to cease distribution of the product, and give public notice of the defect or their failure to comply with the CPSA/CPSIA, as well as to bring the product into compliance.

The CPSA also imposes civil penalties in an amount not to exceed $100,000 for each violation and establishes a maximum of $15,000,000 in civil penalties for any related series of violations.  Moreover, the CPSC imposes criminal penalties for any violation of the CPSA.  Such violations are punishable by imprisonment of not more than five years for knowing and willful violations of the stated section, a fine, or both.  Criminal penalties under the statute may also include the forfeiture of assets associated with the violation.  Finally, the CPSC grants all United States district courts the jurisdiction to restrain any violation of the CPSA, to restrain any person from manufacturing, importing, or distributing into the United States a product in violation of the CPSA, and to restrain any person from distributing a product not in conformity with a consumer product safety rule.

Suits for Damages by Private Persons and Interested Third Parties

Private individuals may sue individuals who violate certain provisions of the CPSA. First, any person who sustains an injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the commission, may sue the alleged violator in any U.S. district court.  They may also recover damages and the costs of the suit, including reasonable attorneys’ fees and reasonable expert fees.

Second, any interested person has a private right of action to enforce a Consumer Product Safety Rule or Order.  In order to proceed, such interested persons must provide the alleged violating company with notice that its products are in violation of the CPSIA. The noticing party would be able to determine appropriate civil penalties and, if applicable, attorneys’ fees may be recovered. Although, to date, there have been few, if any, private enforcement actions brought under the CPSIA, given the current budgeting restrictions faced by such agencies, including the CPSC, private enforcement actions are likely to become more prevalent.