The Consumer Product Safety Commission (CPSC) recently adopted a rule that requires children's products (products used by children twelve and under) to be tested by an authorized and independent third-party. On October 19, 2011, the CPSC voted 3-2 along party lines to pass the rule. The rule will likely take effect February 2013.
Before this rule, it was the manufacturer's responsibility to test its products and ensure that they met all safety requirements before releasing them into the stream of commerce. But by passing this rule, three CPSC Commissioners obviously felt that self-testing and market forces were insufficient to keep unsafe products away from children. According to Chairman Inez Tenenbaum, the rule will fetter out unsafe children's products before they get in the hands of children.
While consumer safety advocates see the rule as a much needed safety measure, manufacturers are not happy. Not only will every new children's product have to be independently tested, but any design, manufacturing, or component change will require a product to be re-tested. All of this testing will either require manufacturers to absorb extra costs, or pass them onto customers. And in this economy, passing on costs to consumers can lead to fewer sales and hurt a manufacturer's bottom line.
Whether or not the rule will actually improve the safety of children's products is yet to be determined. But it is a foregone conclusion that manufacturers and consumers are footing the bill either way.
William F. Auther is a partner with an active trial practice in product liability and business litigation and Kelly M. McInroy is an associate in the Phoenix office of Bowman and Brooke LLP.