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Consumer Product Law Blog

Tuesday, September 4, 2012

10 Things to Remember if You Import Consumer Products

The U.S. Consumer Product Safety Commission (CPSC or Commission) enforces consumer product safety laws for thousands of different kinds of consumer products.  Foreign products that do not comply with applicable regulations can be seized at the border, forfeited, and destroyed.  Here are 10 things to remember if you are importing consumer products into the United States.

1)  The CPSC Sheriff Is Patrolling The Border

Surveillance of imported products is now a top priority of the CPSC.  The agency recently increased its efforts to screen imported consumer products for safety violations by stationing CPSC investigators at 15 major ports, where these investigators are working jointly with U.S. Customs and Border Protection (CBP) to stop products at the border that do not comply with CPSC rules.  In the first half of fiscal 2012, these investigators stopped more than 1 million units of “violative or dangerous products” from reaching the U.S. consumer market.

2)  They Have A List

The CPSC works with the CBP to identify high-risk imports that are likely to violate safety standards. Through an interagency agreement, the CPSC now has real time access to CBP data.  The CPSC uses a Risk Assessment Methodology (RAM) to review CBP import entry data and ”risk score” shipments likely to violate consumer product safety laws.  Imports with elevated risk scores receive enhanced scrutiny from the CBP and CPSC.

3)  You Could Be On The List

The Commission does not disclose the specific criteria it uses to determine if a product presents a high risk of violation.  However, an analysis of the types of imported products stopped by the CPSC shows that certain products are high on their target lists:

  • Children’s products containing excessive levels of lead are at the top category of products stopped in the first two quarters of fiscal year 2012.
  • Children’s sleepwear, toys and other articles with small parts are elevated on the list.
  • General use (non-children’s) products such as mattresses, art materials, fireworks and lighters are also at risk of detention and seizure at U.S. ports.

It is important to note, however, that there are many other categories of items, ranging from electrical appliances to adult clothing, that are additionally among the items stopped and seized at the border.

Besides focusing on these specific types of products and violations, the CPSC also uses its RAM procedures to identify and target “repeat offenders at import.”

4)   Compliance Is Cost Effective Because Non-Compliance Is Expensive

Compliance with costly regulations that require testing, certification, labeling and other actions is expensive and time consuming.  However, the failure to comply with CPSC rules is even more expensive than compliance - and the penalties continue to increase.  Civil penalties now reach up to $100,000 per individual violation, and a series of violations can cost up to $15 million.  “Knowing and willful” violations of consumer product laws can also result in criminal penalties, including the forfeiture of assets.  Beyond that, the CPSC statute now requires the destruction of products that are refused admission into the U.S., rather than the return of these products back to the country of origin.

5)  Have Your Papers Ready

Before a regulated consumer product may be imported into the U.S., each shipment must be accompanied by a proper certificate of compliance.  Regulated “General Use” (non-children’s) products require a General Certificate of Conformity.  Children’s products require both a Children’s Product Certificate and a Tracking Label.  A significant number of products stopped at the border involve violations related to certification or labeling.  Importers and their customs brokers should have all necessary documentation readily available for CBP and CPSC inspectors.  Even if the certification is proper, the failure to have it easily accessible can result in unnecessary and costly delays.

6)  Two Ways To Get Stopped In Your Tracks

Both the CBP and the CPSC have the authority to detain imported goods.  CPSC investigators may now issue their own Notices of Detention for imported goods that appear to violate CPSC rules.  A CPSC notice is issued to the importer with copies to the customs broker and CBP.  In addition, the CBP may also issue its own detention notices for other, non-CPSC violations (e.g., intellectual property violations).  Products detained by the CPSC will be held in a bonded facility regulated by the CBP at the expense of the importer.

7)  If your shipment is detained – Don’t wait

If you receive a Notice of Detention from the CPSC – respond immediately.  The Notice contains the information required to respond.  A CPSC Notice of Detention ordinarily gives the importer 5 working days (from receipt of the notice) to submit evidence to resolve the detention. A typical Notice describes the suspected violation, the statute governing the violation, and the contact information for the CPSC officer who issued the notice.  If you ignore the Notice of Detention from the CPSC, you will receive a subsequent notice that the CBP has seized your product.

8)  You May Be Able to Obtain a Release of Your Shipment

First, know that the CPSC only detains the products described in the notice. In some situations, the CPSC detains only a portion of the products in a shipment. An importer or their customs broker should contact the CBP to obtain the release of the remaining products in a detained shipment.

Second, under certain circumstances, the CPSC will allow merchandise under examination for admissibility to be temporarily moved to an importer’s facility pending results of the CPSC’s examination.  A CBP bond is required for such a conditional release.

Third, the CPSC may defer final determination of the admissibility of a product and allow it to be conditionally released under bond, so that the importer can modify the product to comply with the applicable CPSC requirements.  Ordinarily, the conditional release period is 30 days.

9) Your Shipment May Be Destroyed

If the product is not properly modified or cannot be brought into compliance, the product will be refused admission into the customs territory of the U.S.. Products refused admission are required to be destroyed, unless the Secretary of the Treasury permits the export of the product in lieu of destruction.  Not only will you lose the value of your product, but you will also pay for the cost of its destruction.  Under certain circumstances the CPSC may permit the product to be exported under bond.

10)  Have Your Team Ready

First, importers should work closely with customs brokers to make them fully aware of CPSC requirements for incoming shipments of consumer goods.

Second, importers should make sure that all certificates of compliance, tracking labels, product registration cards, and other CPSC required documentation are in order and available to CPSC and CBP officials immediately when shipments arrive.          

Third, customs brokers should know how to contact the importer or its counsel for immediate legal support in case an issue arises at a port involving a consumer product safety matter.  Brokers should be carefully instructed to immediately inform the importer or its counsel of any notices of detention the broker receives.

Last, importers should instruct their warehouse personnel on potential CPSC customs issues, and importers should further designate an area for the hold of any products at port.

Due to the increased importance the CPSC places on port surveillance, importers of consumer products should be proactive and increase their own compliance efforts to ensure problem-free entry of their goods into U.S. ports.

           

Charles E. Joern Jr., Joern Law Firm, Oak Brook, Illinois, USA.

This article is for general information purposes and is not intended to be and should not be taken as legal advice. More consumer product safety information is available at http://www.consumerproductlaw.com.





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