CPSIA - Unanswered Tracking Labels Questions ("Clear as Mud")

The recent tracking labels guidance by the CPSC was greeted with relief by some commentators who interpreted it as signaling flexibility and "common sense" implementation of Section 103 of the CPSIA. Is that true? Common sense and flexibility reigns supreme again? At the anniversary of the CPSIA, these are critical questions to answer.

Introduction

I have tried to make sense of the guidance for several days now. Frankly, this exercise is frustrating as the guidance is vague and misleading in many ways. I have argued at length with lawyers over the "plain" meaning of the guidance and was still left guessing. Some of these questions have a real economic impact on our company.

As with other guidance documents, the tracking labels guidance was written without regard to economics or how business decisions are made. The rationale for this approach is simple - you cannot place a price tag on safety, ergo “it follows” that the CSPC cannot take money into consideration in its interpretation of the new law. There is some basis for the understanding of the CPSIA, as the law took pains to eliminate money as a consideration (for example, look at the definition of “technological feasibility” in Section 101(d) which will bite us in two years).

This is naive, of course. Aside from raising the likelihood that their recommendations will be impractical or even impossible to achieve, the CPSC is taking a chance that they are creating remarkably negative economic incentives that will drive companies away from the children's market. Of course, if product availability declines, so will recalls, which in turn will make the CPSC look good. Your kids won’t have the same choices in warm clothing and your school won’t have access to enough good school supplies, but the regulators will feel the warm glow of a job well done!

I believe the "relief" granted by the tracking labels guidance, particularly for small businesses, is a mirage. It seems apparent that the intention is to impose the Section 103 requirements on one and all. As the guidance says, "The Commission believes that the purpose of Section 103(a) is not to impose significant additional burdens on manufacturers who already make available the required information for their products, but to bring those who do not up to a higher standard." In other words, the CPSC conjured up the notion that somebody was already doing this in the children's product market to justify their guidance. While this may be true in limited cases (I have no idea but likewise have never seen it myself), it is hardly a common practice, much less driven by market demand. [Full disclosure: we have for many years put serial numbers on a small number of high value electronic products to help us diagnose quality problems if they occur.] The imaginary companies providing this information are now put forth as a justification for getting the rest of us up to the "higher standard". In the case of our company, that higher standard is to address the “problem” of one recall of 130 pieces (all returned) in 25 years. Oh yes, I buy the argument.

I also believe the guidance has been tailored to relieve any future constraints on the behavior of the CPSC, leaving it open to put on its jackboots if political winds shift in that direction. Clear and binding limits on their regulatory discretion cannot be found in the guidance. The lack of constraint on these regulators is truly frightening to business people. Congress wants you to think our fear is good for consumers. I think you might understand the problem differently if you were on the butt end of that one. What if your local traffic cops had the same coercive power over you? Would you drive more – or less?

In order to make clear the nature of my concerns, I have prepared a list of "unanswered questions" for your consideration. It's not a short list. Rather than provide a shorter list and provide the full list upon request, I have decided to publish them in full below. I apologize for a very long post (even for me). I have organized them by category and italicized each question that I consider critical. I hope you find this useful.

The CPSC must not allow this situation to persist. While I have repeatedly expressed sympathy for the CPSC, I feel likewise that the CPSC is not adequately resisting this very misguided law, and is moving forward with a bit more enthusiasm than is appropriate. The guidance and other recent emissions from the CPSC read like something out of Mr. Waxman’s marketing department. While the new Chairman has stated her intention to “vigorously” enforce the new law as written, her job description does not extend to providing justifications for laws she did not write. Just because the laws are on the books doesn’t mean they make sense. The CPSC knows this, too. Notably, the CPSC has had the power to impose tracking labels for decades yet consistently declined to do so except in specific cases. To pander to Congress with trumped up justifications for this law is to reset safety administration to meet current political preference - and that's wrong. Lillian Hellman said it best: "I cannot and will not cut my conscience to fit this year's fashions." This is not naïveté on my part – it IS wrong.

Readers: If you think of other relevant unanswered questions, please leave them as a comment to this blogpost. Thank you!

My "unanswered questions":

Violations

a. In setting penalties or defining the scope of recalls, how will the CPSC balance the consequences of imperfect Section 103 compliance and the cost of perfect Section 103 compliance? In other words, if the interest of the public is met with an appropriately-defined recall and the reasonable expenses of such recall is met by a manufacturer, will a technical or inconsequential violation of Section 103 be the subject of a significant penalty or other remedies?

b. The guidance states that the CPSC will initially focus on compliance with Section 103 in the context of recalls. I interpret this to mean that the CPSC will NOT presently take action on labels EXCEPT in the circumstances of a recall. Is this correct? If not, what does this policy signify? How will manufacturers know when the enforcement policy changes? Will it require a vote of the Commission?

c. If the Guidance means that enforcement will only take place when a product is recalled, does that mean that the agency will not investigate tracking label issues beyond the recalled products once it becomes aware of a violation on a recalled item?

d. How will the agency deal with reports of violations of Section 103 in the absence of a recall? After all, these are presumably violations of law. Will the agency use the new consumer database to find offenders? Does the guidance mean that the CPSC will NOT take preemptive action upon actual knowledge of problems other than in the context of a recall? [This question could be extended to the CPSC's other partial enforcement stays, such as with decorative stones. If a report is made of rhinestones in jeans for nine year olds, clearly a violation of Federal law but outside the stated enforcement focus of the agency, will the agency tell the person making the report that they will not bring the offender to account? What if the person making the report is a “whistleblower” – will the whistleblower be refused for exposing this “crime”? Will the CPSC intervene in opposition if a State AG takes action to enforce the statute against such an "offender" for a violation that is covered by its commitment to not enforce?]]

e. How will the agency coordinate its policies with the U.S. Customs Service? In other words, if importers bring in product in compliance with the CPSC's stated enforcement policy, can Customs stop the product anyhow? Who will make these decisions? How will/can the CPSC prevent this activity by Customs? Will Customs set its own priorities for enforcement in its responsibilities to guard the borders from “unsafe” products? Likewise, what steps will the CPSC take to bring State AGs in line with its enforcement policy? Does the CPSC contemplate hosting a meeting of State AG offices to create this kind of enforcement alignment?

f. In exercising "discretion" in assessing penalties for violations of Section 103, the guidance specifically cites that "inadvertent omission" is "unlikely" to be assessed penalties. What does "inadvertent" mean? Pure error? Pure error combined with good intentions? Pure error made by reasonable people acting with due caution? Reasoned and intentional omission based on an erroneous understanding of the law, CPSC enforcement policy or both? Will "inadvertent" omission of essential information also be considered a "forgivable" infraction? How will the agency handle apparently widespread "inadvertent" omissions by a single company?

g. What is the boundary between respecting "good faith efforts" and determining what is and is not an "inadvertent" omission? If a manufacturer can establish "good faith efforts" or the use of "reasonable judgment", will ALL errors be considered "inadvertent"? In other words, has the CPSC established a safe harbor where good behavior will be accorded preferential penalty treatment?

h. Does the CPSC intend to moderate penalties based on the “no harm, no foul” principle? Or, if the agency is concentrating on penalizing only in the context of a recall, won’t the necessary outcome be that every violation will be deemed serious since it may appear that the absence of tracking labels somehow makes the recall less-than-optimal? Will the company subject to recall be entitled to any defenses? Will the failure to properly or effectively label products be considered an irremediable offense in a recall context, as it follows logically that without tracking labels, any subsequent recall will be "less effective" than a recall conducted with proper tracking labels? If that's the case, why not set the penalties right now? [Please note that while the presence of recalled items remaining in the marketplace presents a theoretical risk of injury, in many cases the incidence of injuries associated with recalled products is basically zero, suggesting that a negligible impact from the tiny percentage of unreturned product that might otherwise have been returned. Of course, in the case of certain hazards, it is certainly possible that the calculation of the probability of injury is materially greater – these items are the ones which are the best and most appropriate objects of tracking label legislation.]

i. Will the manufacturer's ability to mitigate consequences, perhaps by expanding a recall, be considered by the CPSC in assessing the seriousness of a tracking labels problem?? Is a manufacturer ever empowered to make an economic judgment about the value of compliance, or is that always an intentional violation of Section 103 (felony)?

j. If a manufacturer discovers that it has made a violation of the Section 103 requirements, must it file a Section 15(b) report? If it does turn itself in, will it get penalized? If it gets penalized as a consequence of turning itself in, why would anyone turn themselves in?

k. Must companies provide tracking labels information if the CPSC says they won’t enforce? If they are never subject to recall (say the maker of plain white cotton t-shirts), why should they expend the money to label when the CPSC states they will not enforce except in the context of a recall? Then again, this is an intentional violation of law, subject to severe penalties under the CPSIA. If then it follows that everyone must always fully comply with the law, regardless of the CPSC’s statement of its enforcement discretion, isn’t it true that this guidance lets no one off the hook?

"Reasonable Judgment"/"Best Judgment"/"Good Faith Efforts" of Manufacturers

a. How will the CPSC Enforcement Staff determine if a manufacturer exercised "reasonable judgment"?

b. How is "reasonable judgment" different from "business judgment"?

c. Does "reasonable judgment" include ANY concepts of economic rationality?

d. What constitutes a "good faith effort" to comply? Will errors discount claims of good faith efforts?

e. Will concepts of the imputed knowledge of a reasonable man using reasonable care be incorporated into the definition of "reasonable judgment" or "good faith efforts"?

f. Are there indicia of "good faith efforts"? For instance, does the presence of full-time quality control staff satisfy this requirement? Supply chain agreements? Random inspections? Routine testing? Database of complaints? Review of current product recalls? Record of product modification? Employment of outside counsel? Participation in industry activities relating to safety (i.e., webinars, seminars, industry meetings, etc.)? Participation in COC/ICTI-CARE programs on corporate conduct? Compliance with mass market retailer requirements?

g. What recordkeeping requirements are implied in the need to prove up "good faith efforts" or "reasonable judgment"? If a manufacturer doesn't have the records to support their claims, will it be impossible to demonstrate good faith or reasonable judgment? In other words, is this a factual inquiry based on PROCESS or OUTCOME? If the answer is "outcome", how can any manufacturer defend their judgment if the outcome is deemed "wrong"?

h. Does the CPSC intend to respect the judgment of companies in determining whether it is impractical to mark a product? If not, how can a manufacturer feel secure in its decision-making without obtaining the prior approval of the CPSC?

i. The guidance states that the CPSC "expects that manufacturers will use their best judgment to develop markings that best suit their business and product." What are the limits to this "discretion"? How far can they exercise that discretion and what are the lines that they cannot cross? If Section 103 defines the limits, is the discretion simply limited to HOW the information is provided, not whether it is supplied? [That appears to be a theme of the guidance document.] If manufacturers have this "discretion", is the CPSC giving up the right to second guess these choices?

August 14

a. Will the date of manufacture of goods determine whether items require the Section 103 information?

b. If the date of manufacture is not known, as might be the case in imported products sourced from a trading company, would a manufacturer be justified in using a date prior to August based on the assertion of its source?

Private Label Goods

a. What are the obligations of component manufacturers on labeling? If a product is known to be a component in another product, what are the labeling obligations? Whose obligations are they? What if the product is only occasionally used as a component, or is known to be used as a component without the permission of the manufacturer? Does that affect the answer on labeling?

b. If a product is a "blank" for later downstream modification, what are the labeling requirements?

c. If a domestic company, importing from China, provides or manufactures private label goods for another domestic company, which company name should appear on the product? The guidance speaks only about the clear question of a manufacturer or an importer, but does not address the case of an intermediary between the factory and the company branding the imported product. I believe the logic of the guidance would suggest that the company branding the company should be named on the product, NOT the confidential intermediary source. This is a critical, if not THE critical, question for many business dependent on the confidentiality of their sources. Would the CPSC be willing to define "importer" to be the final branding reseller of private label imported goods to address this issue?

d. What are a manufacturer's obligations if it becomes aware of labeling problems downstream, such as the omission of labeling information required under the guidance by the downstream supplier?

Commodities/Unbranded Products

a. The tracking labels guidance seems to ban unbranded products. Is that the intention?

b. If you are a marketer or manufacturer of commodities, such as plain painted bar magnets, must you label your products? What if you sell only through dealers, and for those dealers, the confidentiality of the source is considered a commercial necessity? Can the obligation to label be transferred as a matter of contract between the supplier and the dealer, so that the distributor/dealer takes on responsibility for labeling the product? Will the CPSC respect contractual transfers of responsibility under Section 103?

c. We market commodities that have an appearance demanded by the market. Does the new guidance require that we mark these commodities to distinguish sources? What if marking the product makes it unmarketable? What if it costs so much to mark it that it becomes unprofitable? Is it the intention of the CPSC to force manufacturers in that situation to choose between making the product and labeling it in accordance with Section 103? What if the design of the commodity has educational or other tertiary value that would be diminished by markings or change in design? What if no similar product has ever been recalled in the records of the CPSC?

d. Many commodities, particularly those used in the educational business, come from industries which do not cater to children and may not be aware of the CPSIA. For instance, aluminum foil is used widely in science kits but is clearly produced for the food industry and for household use. Products like this will not be designed to comply with the CPSIA and given the low volume of sales in our specialty market, are unlikely to cater to our need to comply with the CPSIA. If the item was not intended for children by the manufacturer, will the product therefore be exempt from the labeling requirements? Who makes this determination?

Exempt Products under Section 101

a. Are manufacturers exempt from the Section 101 lead standards still subject to Section 103 labeling requirements? Many such items have earned these exemptions by submitting proof of their non-toxicity. Must they also incur the costs of labeling despite the official acceptance of their products’ safety? If not, this would presumably mean that the expectation is that ALL consumer products designed or intended for children twelve years of age or younger will require tracking labels, and further that there are NO exceptions possible. The CPSIA notably does not provide an exemption process for products subject to Section 103.

Small Business Exceptions

a. If Small Businesses do not have to create "lot, batch or run number" systems, what are the "reasonable practices" required of such companies to "keep records of components used in their products"? How is this different than creating a system to track lots? .

b. If Small Businesses do not have to create "lot, batch or run number" systems, isn't that inconsistent with a requirement to put a date on the products? Most small companies, if not all small companies, have a one-to-one relationship between date of production and lots. If you number a lot, it is effectively a batch number. If there is no obligation to create a batch numbering system, what "common sense relief" is the guidance offering to small manufacturers with this requirement?

c. Further to the last point, if you must be able to identify each piece back to its production run, how does the CPSC believe this will be done in the absence of a batch numbering system (dates or whatever)? Isn't this an explicit requirement to create a comprehensive data collection system documenting batches and relating them to each unit sold? If so, how does this guidance provide ANY relief to ANYONE? If not, please clarify what steps you believe have been eliminated for small businesses ill-equipped to comply with this rule?

d. Federal law (The Small Business Act) defines a "small business" as one with 500 or fewer employees (as a general rule). If we have 500 or fewer employees in our company, are we entitled to rely on the exception granted to "small volume manufacturers"? Would larger companies also be entitled to rely on this exemption under certain circumstances? If so, please describe those circumstances?

e. Section 103 of the CPSIA requires that the date of manufacture be "ascertainable" by a consumer. If small companies do not have an obligation to create lot records or lot markings, how are they supposed to meet this requirement? Is the date requirement considered part of the lot marking rules under your guidance?

f. You have stated that "Although Section 103(a) does not require manufacturers that do not use lot, batch or run numbers to create such a system, the Commission believes that compliance with this Section generally will require that manufacturers have in place a reasonable means to ascertain detailed production information, including the means to distinguish products made from different factories, made with different components, at different times or have other material differences that make the product non-identical from previous products." What are examples of "reasonable means" that fall short of a new system to retain lot or batch records? The guidance seems to require that a system be created to retain detailed records of production runs despite the fact that you have explicitly acknowledged that no new system is required. What exactly is a manufacturer supposed to do to meet this guidance?

g. The guidance states that "The business and recordkeeping practices of peer manufacturers should be considered." We are in an industry comprised almost entirely of private, independently-held companies. How are we supposed to consider the private, confidential practices of competitors? Wouldn't it be a violation of antitrust rules to compare competitive practices with our competitors and possibly align them?

h. In a FAQ aimed at "crafters", the CSPC states: "If someone handed you one of your products sold last year, what would you be able to tell them about the materials used? Keeping your receipts and purchase orders will help you to better know the source of your product and its components and when you began using them. Ask your fellow hand crafters if they have any tips or ideas that can help. . . . Compliance with the new requirements will call on a number of small hand crafters to rethink the way they maintain their records and mark their products." This guidance seems to contradict your instruction that a lot marking system not be developed. Can these statements be reconciled, or is the CPSC speaking out of both sides of its mouth? The clear implication of this guidance is that crafters must be able to prove up components and lot information for individual units in the marketplace. This means that they have not received any relief whatsoever.

i. Again, in a FAQ, the CPSC gives the following Q&A: "Is the information ascertainable if I mark my product and packaging with a code and website address where all the required information can be found? Yes, provided the name of a manufacturer or private labeler is also identified so a consumer without access to the internet can know whom to contact directly to also obtain the required information." Thus, the guidance seems to state that web address is NOT enough and that the safe harbor only exists if there is ALSO a code, presumably identifying the lot. Is this correct?

Markings

a. If it is reasonable for bulk vending products to be marked on their shipping case, which would presumably not be "ascertainable" to consumers, can other manufacturers satisfy the requirements of Section 103 by marking the exterior of the shipping carton rather than the product itself? It is worth noting that the largest recall in the history of the United States occurred in the bulk vending industry. If it is acceptable for that industry to mark its shipping cartons rather than its products, why should industries or companies with a strong safety record be held to a higher standard?

b. We understand that the CPSC has been telling “crafters” that if contact information like a web address or phone number is on their product, they will be deemed to have met the requirements of the tracking labels. Can all manufacturers rely on this advice, or just “crafters”? If only certain companies can take that approach, which companies are “in” and which are “out”? Will the agency put out rules so that companies can safely rely on written guidance, rather than rumor? In the marketplace, dealers do not feel comfortable relying on a manufacturer’s assurance that oral guidance has been given to bless their approach to labeling.

c. Will the agency respect the judgment of a company in determining what “ascertainable” means for purposes of Section 103? If the agency will not define “ascertainable” and reserves the right to second guess companies’ exercise of judgment, how do you expect companies to proceed on markings, given multi-level distribution and the demands of dealers for assurance that labeling is compliant? Is it your expectation that we must pay a testing laboratory to give us a certificate blessing our labeling practices? Please note that a precedent for tracking labels is the law on safety labels, which was bright line and clear. The CPSIA tracking labels provision is hardly bright line and clear.

d. Will the agency respect the judgment of companies in determining that certain products fit within the “impractical to mark” guidance? What is the possible liability exposure for a company who makes the “wrong” determination? In other areas of the law, the process involved in making a “business judgment” absolves liability, even if the decision is “wrong”. In this case, the guidance seem to suggest that the CPSC wants to have it both ways, where companies are responsible to make a good decision without specific guidelines but if they make an incorrect judgment, then the CPSC reserves the right to “teach them a lesson” with penalties. What would you advise a company to do under these circumstances? Make products for adults?

e. We make a variety of kits which contain small parts or numerous parts of equal importance. You have given guidance on games which include game boards and small pieces, but have not addressed other kinds of kits. What if the kit is comprised of crayons or pencils? What if the contents are consumables (such as a craft kit comprised of felt, buttons, feathers, and so on)?

f. We sell products that are often taken out of its permanent packaging so that components can be sold separately. We know this happens but do not advertise it as a feature of our product. It is also not our intention that dealers do this, but we know they will do it from time to time. Since we deem the products to be a set to be sold together, we do not believe we must mark every item. To do so would be prohibitively expensive. Your guidance says that if a set is separated and the parts sold separately, then each part must be separately marked. Notably, none of these products have every caused an injury or resulted in a failed test report. What are we supposed to do on marking the components of these sets? If we are obligated to mark the parts, are we also obligated to stop sale and mark components of other products if we become actually aware of one dealer separating the products? If not one dealer, how many? Will we be held to a “reasonable man” standard where we will be subject to imputed knowledge that we in fact do not have? Will the dealer be responsible for these markings?

g. The guidance says that the name of the “manufacturer” or private labeler be “ascertainable” from the marking. The CPSA definition of manufacturer includes both the manufacturer and the importer. Does this mean that the guidance will allow the importer to put its name on the product and leave off the factory identity?

h. The guidance says that the name of the manufacturer must be part of the ascertainable information in the marking, and the definition of manufacturer includes importer. The implication of the guidance is also that private labeler is included in the definition of “manufacturer”. Assuming this is true, is it also therefore true that the location to be placed on the product (city and state) are of the importer, rather than the factory? It is our assumption that this is probably the intention of the guidance. This kind of information is found on many consumer goods, and is also required by EN71 to help consumers find the source of children’s products. If the meaning is that the city and state of the factory is instead required as part of the markings, it will be much more disruptive since this conflicts with the requirements of EN71 as well as U.S. Customs laws on country of origin, and is very uncommon in product markings. Isn’t the purpose of this requirement similar to the advice to include a web address or phone number, to facilitate contacting the source? If so, the city and state requirement is meant to help distinguish between businesses with similar names located in various places around the U.S., rather than to disclose the factory address. This needs clarification.

i. If we discovered a tracking label error in our inventory, is that a reportable "offense" under Section 15(b) requiring a report within 24 hours to the CPSC? Will we have to recall improperly labeled goods after discovery? Will we be penalized later if the item is recalled? Will we be compelled to relabel the goods in our inventory? Send out replacement labels to our dealers? Follow up with them and collect documentation about the proper relabeling of this merchandise in their stores and/or warehouses? [They will charge us for this service.] Will we be required to recall these items to fix the labels? Will you decide these questions based on scale? Based on your investigations?

j. Is it your intention to spot-check tracking labels in the marketplace? Is it your intention to send information requests to children's product companies about tracking labels? Spot or unannounced site inspections? What are our rights if you request this information or show up unannounced at our place of business?

k. Some commentators believe that the Guidance is ambiguous on whether the name of the actual manufacturer (factory) must appear on the package. Since the definition of the manufacturer in the guidance is EITHER the manufacturer or the importer, we interpret this to mean that the identity of the importer will satisfy this requirement. Please confirm. If a consumer calls up to learn the identity of the factory, are we obligated to provide it? This is a critical question – the answer must be “no” or else the confidentiality of sources will be compromised with devastating impact, particularly on small businesses.

l. For an assembled item, is the assembler invariably considered the "manufacturer"? Is this driven by the fact that the date of assembly is considered the relevant date for purposes of lot identification? This would also suggest that if the assembler is the manufacturer for purposes of this regulation, then the manufacturers of the components are NOT the manufacturer. Please confirm.

m. The need to make products in different lots "materially different" or "non-identical" begs many questions. For example, how are we to manage this responsibility for a multi-part kit where the main component is marked but the other items are NOT marked? Will your answer depend on whether there is (or was) a recall? Even more pertinently, will your answer change if there is a recall of an unmarked (not primary) component in the kit? This could happen, for example, if a low value magnet is recalled that appears as a component in many kits. In addition, the guidance requires that we be able to "distinguish products made by different factories". Does this apply to components in a kit? Has the CPSC carefully considered the implications of a positive answer to the foregoing question? Frankly, the business of making kits for kids will become ensnarled in so many gratuitous distinguishing marks (all in the off-chance that a recall might happen) that the products will become utterly uneconomic. Please explain the details of this requirement.

n. If new books are deemed lead-free based on worldwide standards for printing inks today, why do they need tracking labels? Particularly in the case of "ordinary books", what is the tracking label meant to accomplish if effectively the CPSC has acknowledged that the only conceivable safety issue (lead in the ink) is absent by definition?

o. What if it's feasible to mark the product but not its packaging, owing to short runs?

p. What if the code on the packaging does not match the product? What if packaging and products are made separately and are only combined when assembly is completed? What if hand working the packaging either destroys its aesthetics or makes it too expensive to sell?

q. What steps will the CPSC take to find those companies faking tracking labels to gain competitive advantage? How can law-abiding companies rely on a level playing field?

r. When assembling a kit using components without lot markings, how is a manufacturer supposed to maintain sufficient records to satisfy the guidance? Will there ever be an obligation under the guidance to mark these components to identify them to the kit?

s. If I make a product for users over 12 years of age, such as laboratory items, and a dealer catering to schools wants to buy and resell the product, the new dealer may refuse to sell it if we do not provide labels to meet your specification. This is ironic, as we are outside the law given our intent. However the activity of other people, namely our dealers, brings us back into being subject to the law. Is this what you intended? What am I supposed to tell the dealer?

t. The guidance states: “The question of what should be ascertainable is a different question than whether that specific information can be marked on the product or packaging.” Thus, it appears that the CPSC will not permit ANY manufacturers to sell ANY children’s product for which the specified Section 103 information is not “ascertainable”. In other words, if a consumer calls up to inquire about the Section 103 information for any unit of a children’s product made on or after August 14, regardless of whether made by a small lot manufacturer, that information must be available – or less. Correct? Crafters, take note.

I would observe that the free pass given to bulk vendors violates this principle as a consumer will not be able to ascertain the Section 103 information as defined in the guidance. While I don’t object to the bulk vending solution (it’s sensible), I do not think the message is coherent. Hence my “unanswered question”.

u. If the product is deemed appropriate for no tracking labels, how precisely is the Section 103 information supposed to be “ascertainable”? Remember, the rationale for not marking products may equally well exclude the other suggested (and impractical) ways suggested to distinguish products made in different production runs. [Think of a dot of red paint on that beautiful necklace you want to buy for your daughter. Hmmm.] The CPSC should explain that one in detail. I presume magic is not part of the solution.

Recordkeeping

a. What are our obligations on recordkeeping? The guidance speaks in terms of no need to create a numbering system but also speaks about keeping detailed production data so that the lot for each item may be determined. Without an existing lot numbering system, we have no recordkeeping for components presently. [The absence of that recordkeeping is no indictment of our practices as we have never had need for them in 25 years owing to our many other activities to maintain quality and compliance.]

b. How long must we retain these records? Normal statutes of limitations are three, five and seven years. Recalls can take place years later. Must we retain these records "forever"? Is that fair?

c. For those of us who do not make the Space Shuttle or somehow do business without becoming a Six Sigma company, retaining detailed records on the source and lot designation of components is well-beyond our ability to manage. It is also going to be extremely expensive and potentially of no real value. Yet, your guidance seems to hold us accountable for this information, regardless of these economic issues. Is this what you expect of small companies? Will you stick to this interpretation even if the necessary solution of this dilemma is a massive reduction in our product line, or abandonment of the specialty markets that we currently serve?