The Consumer Product Safety Improvement Act (CPSIA) requires manufacturers to place distinguishing permanent marks on all children’s products to the extent practicable. Specifically, CPSIA § 103 requires children’s products and packaging to have distinguishing marks to enable the manufacturer and the ultimate purchaser to determine the manufacturer or private labeler’s name, the location and date of production of the product and the cohort information (batch, run number or other such identifying characteristic).
The permanent tracking label requirements have confounded some manufacturers. Although the tracking label requirements apply to all children’s products made on or after August 14, 2009, some manufacturers are still having trouble understanding the requirements.
The mark must be permanent. A permanent mark is one that can reasonably be expected to remain on the product during the product’s useful life. Hangtags and adhesive labels are not considered permanent by the CPSC. For disposable packaging, the mark need only be permanent to the extent that it is durable enough to reach the consumer.
The CPSIA does not specify what the distinguishing marks should look like, just the minimum information that must be included. The Consumer Product Safety Commission’s Statement of Policy: Interpretation and Enforcement of Section 103(a) of the Consumer Product Safety Improvement Act (“103 Statement of Policy”) clarifies that the CPSC is not imposing uniform requirements but that manufacturers should use their best judgment to develop markings that best suit their products. The CPSC states that each manufacturer is “ultimately responsible for making a reasonable judgment about what information can be marked on [its] product and packaging, and what required information can be ascertainable, given the character and type of [its] business.”
But what that label should be continues to frustrate manufacturers. However, the label that is implemented should keep in mind the labeling requirement’s goal - to aid in determining a product’s origin and cause of a recall in event a product is subject to a recall. Therefore, any tracking label system should be designed and implemented to fulfill this goal.
The CPSIA requires that the mark appear both on the product and the product’s packaging. Many manufacturers continue to believe that the mark is only required on the packaging, or vice versa. Of course, if the mark on the product is visible through disposable packaging, then the mark does not need to appear on the packaging.
In the following circumstances, the CPSC has made it clear that the mark can appear on the packaging and not on the product:
- the product is too small to be marked;
- the product is meant to be stored in a box or similar packaging. For example, a game with a board and pieces stored in a box need only have the board and box marked, and the individual game pieces do not need to be marked;
- the product is sold through a bulk vending machine;
- the product or its utility would be weakened or damaged by a physical mark;
- the product’s surface is impossible to mark permanently; and
- the product’s aesthetics would be ruined by a mark and a mark cannot be placed in an accessible but inconspicuous location
Any manufaturer should be aware of what its competitors are doing in terms of permanent tracking labels. A manufacturer that claims its products are just too small to be marked, but all of its competitors products are marked, will have a difficult time being persuasive. In fact, the CPSC has stated that “[w]hen considering the reasonableness of a manufacturer’s decision regarding what information to include in its markings, the Commission intends to look at the individual manufacturer’s situation along with the practices of peer manufacturers.”
Keep in mind that the CPSC has indicated that it expects manufacturers will comply with these requirements and not deviate without compelling reasons for doing so.
And, it should be further noted that other labeling requirements may apply. For example, stuffed toys have other labeling requirements, including state specific requirements, that are not preempted by the permanent tracking label requirement. Since the CPSIA does not mandate the precise form of the permanent tracking label, however, the information can be combined with other regulatory labels.