The Challenge

Section 103 of the Consumer Product Safety Improvement Act requires that all children's products (defined as all products intended for children under 13) and their packaging manufactured on or after August 14, 2009 must bear a permanent "tracking label." Both the CPSC and state attorneys general are empowered to enforce this mandate. These labels, intended to enable consumers to specifically identify products subject to safety recalls, must contain:

1. The manufacturer of the product;
2. The date and location of manufacture; and
3. Specific, identifying information about the product (e.g., lot or batch number for that product).

There are, however two key caveats to this requirement: First, manufacturers are only required to place such labels on their children's products and packaging to the extent doing so is "practicable." Second, in lieu of a label containing the required information, manufacturers may be able to place labels on these products and packaging that simply enables consumers "to ascertain" this information (e.g., via a Web site). Unfortunately, neither Congress nor the Consumer Product Safety Commission have given specific information about when or how either of these caveats might apply to particular products.

On May 13 the CPSC effectively denied a petition seeking an emergency one year delay of enforcement for Section 103. Now many retailers are beginning to require their vendors and suppliers demonstrate compliance with this section.

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