CPSC General Counsel Clarifies Distributor Responsibilities for Children's Apparel
But according to a 2009 meeting between PPAI and CPSC, the Commission has made clear that if a promotional products distributor buys a blank and compliant garment and then performs an operation that transforms the garment in any way before the garment is sold to the end buyer, then that distributor is responsible as a manufacturer for whatever "transforming" operation it may have performed itself or contracted to have done—such as tie-dying, stain proofing, embroidering, adding a press-on appliqué or simply silk screening the garment. The distributor's "manufacturer" responsibilities include obtaining a test from a CPSC-approved third-party laboratory confirming the lead content of the surface coating and applying a permanent tracking label to the garment to cover the decoration. This tracking label is in addition to any tracking label that may have been applied by the blank garment manufacturer such as Gildan, Hanes or Champion.
Some promotional products distributors have wondered why they should be held responsible for ink applied by their decorator. We posed this question to Cheryl A. Falvey, general counsel for the CPSC, who explained that the responsible party depends on how the transaction is structured between the distributor and the decorator. If a decorator buys a blank garment from an apparel wholesaler, decorates it and then sells the final decorated product to a distributor, then the decorator is responsible as the manufacturer. But if a distributor buys a blank garment from an apparel wholesaler and then sends it to a decorator to be personalized, the distributor is the manufacturer. The decorator in the latter case is simply a subcontractor to the distributor.
So what is the new guidance that Ms. Falvey has written to help distributor "manufacturers" understand their obligations under CPSIA? It has to do with third-party testing and the extent of the distributors' responsibility to verify that their decorator is using compliant ink. A question was posed to Ms. Falvey as to whether or not a distributor could rely on a decorator's certification that their inks were compliant without having to personally test the inks or the finished garments, as long as the decorator indicated that the inks were tested once per year.