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

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

Would You Risk a $10,000 Order to Raise Product Safety Questions?

You get a call one morning from a marketing manager referred to you by one of your customers.  She desperately needs 7,500 tote bags for an event the following week and wants to know if you can deliver.  You do some quick math and realize you could be talking about an order approaching $10,000.  Now what questions are you going to ask?

Of course you’re going to ask about budget, about the particular bag and imprint she has in mind, and where the bags are to be shipped, but are you willing to raise the product safety and compliance questions?  Could there be a regulatory issue involved?   Who is the intended audience for the product?  Will children be recipients?  What does the art look like?  Is it a juvenile imprint?   Will the bags be distributed in California?  Does the end-buyer company have any policies regarding lead, phthalates, or cadmium in the bag or the imprint?

With a plum order in hand—especially a $10,000 order—even veteran distributors might shy away from questions like these if the client hasn’t mentioned the issue first.

The same dilemma exists for suppliers.  You receive a quote request for 2,500 custom-shaped flashlights and the client doesn’t provide many details. What testing are you going to include?  If the flashlights are for a boy scout jamboree you have different considerations than if the flashlights are for a Mr. Goodwrench promotion.  What should you build into your quote for testing and what specifications will you require of your factory when you ask for a quote?  Every lab test you include and every product safety specification you require of your factory is likely to increase your cost.   If you specify that the material must be lead or cadmium free, or that the inks must be phthalate free, there will likely be an associated cost that your competitor might not be including.  These are difficult questions, particularly when you are quoting blindly without knowing the whole story.

Let’s frame the discussion between mandatory standards – what’s required by law – and voluntary standards – what may be required by your customer’s own policies, by market pressure or by some other non-legal reason.

The word “mandatory” should guide you when it comes to asking questions.  In both of the examples – the tote bags and the flashlight – if the final decorated product is determined to be a children’s product and it doesn’t comply with applicable regulations, then you could be risking an expensive recall and a public embarrassment.  Best practice is to learn the mandatory compliance regulations for products in our industry and then ask enough questions of your customer to enable you to quote properly – to know what to ask of your testing lab and what to require of your supplier or factory.  As the law is currently written and enforced, ignorance of the intended audience does not appear to be a defense.  You will not likely get much sympathy from CPSC by saying, “I didn’t know it was a children’s product and I didn’t know they were going to hand it out to kids.”  It could be a very expensive discussion.

Voluntary standards are a different matter.  McDonald’s recalled millions of Shrek glasses because of cadmium in the decoration even though there was no mandatory regulation that applied.  A few years ago, when the Today Show created a frenzy about the chemical BPA in polycarbonate bottles, hundreds of corporations stopped buying them. Yet BPA is still perfectly legal, even today.  Many corporations have policies about toxins like these that go beyond regulation.  Some, like Nintendo, borrow standards from ASTM F963 – the toy safety standard – and apply those requirements to products that are not toys.  The Consumer Product Safety Improvement Act (CPSIA) bans children’s toys if any of six phthalates measure more than .1% but Nintendo applies this standard to every promotional product it purchases, not just children’s toys.  Other companies require the fabric in products like tote bags and string backpacks to comply with the Flammable Fabrics Act even though that law applies primarily to apparel and not to tote bags or string backpacks.

So what is the best practice when it comes to quoting?  While each distributor or supplier needs to consider his or her own situation, here are some things to take into consideration:

Since mandatory standards are not optional, you have to deal with them no matter what.   If you are knowledgeable about the law, you may be able to make a determination from the product or an image and not have to query the client about the intended audience.  While this approach has risk for borderline products, there are hundreds of products in the industry that are obviously not toys or children’s products.  As a general rule, however, it is safer to evaluate the art and ask the client who the intended audience is before quoting.  Then you can determine the required standards and build them into your price – material specification and testing.

There are those who would argue that including product testing in a quote may make your product appear more expensive than competitive quotes that do not include testing.  To me, that’s a sales issue, not a pricing issue.  At a minimum, your quote and presentation should highlight the mandatory regulations that apply to the product and indicate the amount you have included for third party testing.  Your salesmanship should enable the client to appreciate your understanding of compliance and that you are protecting her and her company.  It seems more professional to me to openly provide the distributor or end-buyer all the facts she will need to approve the sale.   Once a price has been approved, it puts everyone in a difficult position if you to go back and say, “We need to add $1,000 for mandatory testing.”  These are hard conversations that sometimes do not have happy endings.

What about voluntary tests – the ones that aren’t required by law?   You might be tempted to disregard them as unnecessary costs that could price you out of a sale, but that would be too simplistic an approach and not necessarily in your best interest or your customer’s.   Because of the odd nuances of CPSIA, there are numerous products that can be distributed to young children that are not considered “children’s products” and therefore not subject to mandatory testing requirements.  These products are considered by CPSC to be “general use products” for children of all ages, not the “primarily 12 years of age or younger” crowd covered by CPSIA.  But if you sell a general use product for seven year olds, isn’t it likely that your client will expect it to be tested to children’s product standards?  And won’t you be embarrassed if the client calls you one day to say that he just found out that one of these products was chock full of lead?  Do you think the client will be sympathetic if you explain that product didn’t fit the technical definition of a children’s product so you decided not to test it?  Not likely, especially if some news outlet is asking for a statement about why her company is distributing lead-filled products to kids.

So just because a test is voluntary doesn’t mean you shouldn’t think about it.   Some may want executive toys to comply with ASTM F963, the toy safety standard, even if they’re not children’s toys.  Or they may want the imprint or transfer to comply with the CPSIA phthalate standard.  My suggestion for a best practice is to list on your quote each voluntary test your client may want to consider and provide a place for the client to check off yes or no for each test.   If the client checks off “no” for every voluntary test, then there could be no embarrassing phone call later.  You would be covered.

Product safety and regulatory compliance has transformed the competitive landscape in the promotional products industry.  While the rules can seem daunting at first, they provide an outstanding opportunity for promotional products professionals to distinguish themselves as trusted advisors.  Dealing with product regulation and testing in a quote document is one such golden opportunity for those who choose to embrace it.

Distributor to Supplier: Is this Product OK for Children?

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)

Differentiating Quality Still a Challenge for the Promotional Products Industry

Of all the costs that go into making a promotional product, quality costs are often the hardest to appreciate. If we do our job well, the product simply looks good and works. But if we don’t, if a product breaks, parts don’t fit together well, ink dries out, seams tear, imprints are crooked – the defect stands out like a black eye and does double damage. The flawed product disappoints and it reflects poorly on the company who gave it away – exactly the opposite of what promotional products are supposed to do.  And now, with ever increasing product safety regulations upsetting norms, threatening the industry, raising calls for indemnification and changing the way we source products, quality has been catapulted front and center as a critical and urgent topic for promotional products professionals.  Yet amidst all of the attention, it remains a significant challenge for our industry to differentiate the highest quality products from the similar looking but lessor products, particularly when they often appear even to experienced buyers to be the same.

For personal purchases, brand names and expectation levels often inform the quality aspect of our buying decisions. We don’t have the same expectations for an item we buy from a dollar store as one we buy from Ralph Lauren. In the grocery store we expect more from Del Monte and Heinz than we do from generic store brands. And we are willing to pay more for the additional quality we get from branded items.

But most promotional products are not branded. Similar looking products are available from dozens of sources with nearly identical descriptions. Search engines like ESP or SAGE can also make similar products appear to be the same.

But they aren’t necessarily the same.

A month ago I received a call from a trusted industry source who said he knew of a well-respected bag factory that had some unexpected downtime and might be able to improve our price on a very popular item from our line. From the description and photos on our website his factory quoted a very attractive price. But after we sent actual samples of our bag the price went up considerably. The fabric was a higher grade than the factory had assumed and our reinforced construction required more labor. Our bag was of a higher quality but the differences were not obvious from the picture and web description, even to a 30-year industry veteran.

As hard as tangible differences are to detect, the critical quality initiatives behind the scenes are even more invisible. Many industry players are now following guidelines like the PPAI Code of Conduct and strict standards from certification organizations like QCA and FLA. These quality commitments include factory audits to verify compliance with child labor laws, social accountability, environmental stewardship, product reliability testing, QC inspections, supply chain security and third-party tests for product safety regulations. The costs of these quality efforts are substantial – one Top 40 apparel supplier told me recently that he spends $500,000 per year on compliance – but none of these efforts are apparent from ESP, SAGE or Google searches. Yet every dollar spent on quality – higher grade materials, better construction, QC inspections and product testing – contributes to the reliability, integrity and compliance of the product – and ultimately, a more compelling statement for the end buyer.

For distributors with years of experience the challenge of selling quality against cheaper lookalikes is nothing new. They know their suppliers well and which ones have performed reliably year in and year out. These professionals understand that quality oriented suppliers are not likely to take on a product unless it has been tested and meets their standards.  But not everyone in the industry has this experience and many rely on ESP and SAGE for sources, searches that focus on price comparisons, not quality comparisons.

Aside from the challenge of educating our own industry is the challenge of educating end buyers, many of whom are young marketing professionals who find lookalikes through Google with little attention given to compliance or quality.  It’s not that these buyers are irresponsible; they just don’t understand the supply chain risks.  Yet if one of these lookalike products results in embarrassment, an injury, a recall or becomes fodder for a Prop 65 bounty hunter, our industry would take the hit and pay the price.

So what are some meaningful steps we can take to help promote responsible sourcing?

Education is the most important.  If everyone involved in the sale and purchase of promotional products understands the issues involved in quality and compliance, they will know the right questions to ask to help them make an informed decision of what product is best for their needs.  PPAI does an outstanding job providing this education through webinars, MAS/CAS certification, its Product Responsibility Action Group and through classroom sessions at Expo.  Many distributor and supplier organizations provide excellent training as well.

Second, the industry needs to do a better job of making it easy for distributors to differentiate the quality and compliance characteristics of similar products – on supplier websites, on ESP and on SAGE.  Better product descriptions would help as would some kind of grading system to indicate whether a product was sourced with budget, standard or premium quality.  Perhaps a series of standard icons could be developed to indicate product or supplier certifications, whether the product has been tested as a children’s product or toy, and whether it is compliant with other state or federal requirements.  It would be even better if these icons were active links to the actual test reports documenting the compliance claim.

John Ruskin once wrote “There is hardly anything in the world that some man cannot make a little worse and sell a little cheaper.”  That has always been the case in the promotional industry.  But now, with product safety and compliance presenting such significant risks to our livelihood, it is more urgent than ever that we develop easier and more effective ways for the industry to differentiate the quality and compliance characteristics of similar looking products.