CPSC General Counsel Clarifies Distributor Responsibilities for Children's Apparel
Ms. Falvey writes: "The short answer to that question is yes. The certificate from the imprinter (or firm applying the ink) can cover multiple batches or lots of production. The only caveat is that the firm selling the imprinted item (distributor) must have exercised an appropriate level of due care to ensure that the ink being used by the imprinter is the same that is covered in the certificate such that each additional batch or lot of production will continue to comply with all applicable children's product safety rules."
For promotional products distributors, the CPSC guidance is a bit of a good news/bad news scenario. The good news is that distributors can rely on a decorator's certification without having to test every garment order at a third-party lab. The bad news is that the Commission has set a very high bar of responsibility for the distributor to independently verify that the inks that the decorator is using for every order are the same as what is covered by the certificate and that each additional batch is compliant as well. Each distributor will have to determine how to fulfill these responsibilities but it is clear that the distributor will have to go far beyond keeping a current certificate on file. If a recall or non-compliant garment issue arises, Ms. Falvey's letter makes clear that the distributor will need to prove to the Commission that it exercised "an appropriate level of due care."
From a common sense perspective, a distributor could and should visit their decorators periodically, learn about their ink procurement and testing procedures, review their third-party test documentation and do whatever they would normally do if they had their own factory or decorating operation to ensure that the operation is compliant. If a distributor does not want to do this, or doesn't have the expertise, he or she should discuss with their legal counsel whether or not it worth the risk to continue to be responsible for decorating children's apparel. There is already one case in the past few months of a John Deere tee shirt recall in Canada for high lead in the decoration. Recalls are very expensive not to speak of other costs and penalties possible under CPSIA. In addition, ink is only one of the materials that need to be tested. If the decoration involves an appliqué, the glue and other material in the appliqué must also be third-party tested as it all constitutes a surface coating.