What Apparel Companies Need to Know About the CPSC

The U.S. Consumer Product Safety Commission (“CPSC”) is an independent federal agency that regulates consumer products, including a variety of products made and sold by stakeholders in the Apparel industry, by providing education, regulations via the Code of Federal Regulations (“CFR”), and enforcement.  In addition to the CPSC, other agencies involved in regulating apparel products include, but are not limited to, the Federal Trade Commission (“FTC”) and the U.S. Department of Homeland Security.  While these agencies have extensive regulatory paradigms, including for apparel companies, below are five key topics on which to focus to remain compliant:

• Flammability.[1]  The CPSC has established flammability requirements for wearing apparel “to keep dangerously flammable textiles and garments out of commerce.”  The standards provide methods of testing the flammability of clothing and textiles intended to be used for clothing.
  • Testing.  For flammability testing, fabrics are put in two main categories that determine which classification (1, 2, or 3)[2] must be met:
    • Plain surface fabrics.  Does not have intentionally raised fiber or yarn surfaces and commonly includes oxford, chambray, jersey cotton, and stretch knit. 
    • Raised surface fabrics. Intentionally raised fiber or yarn surfaces such as terry cloth, fleece, corduroy, and flannel. 
  • Exceptions.  Exceptions to the flammability testing requirements include[3]:
    • Hats that do not cover the neck, face, or shoulders;
    • Gloves that are unattached to a garment and are 14 inches or less in length;
    • Footwear that is unattached to a garment and has no hosiery; and
    • Interlining fabrics when intended or sold as a layer.
  • Exemptions.  Fabrics that consistently show acceptable flammability results and are exempt from testing include certain plain surface fabrics[4]:
    • That weigh 2.6 ounces per square yard (or 88.2 grams per square meter, regardless of fiber content); or
    • Are made of acrylic, modacrylic, nylon, olefin, polyester, wool, or any combination of these fibers (regardless of weight).
  • Uncovered and/or exposed parts of clothing.  Must also be tested for flammability such as rolled cuff sleeves and exposed lining in jackets.

• Children’s clothing.  The CPSC has special rules and testing obligations for children’s products generally and children’s clothing specifically:
  • Labeling.  All children’s clothes[5] must have a permanently fixed tracking label that identifies the manufacturer, importer, or private labeler name; the location and date of production; detailed manufacturing information such as the batch or run number; and any further information to source the product. 
  • Testing.  Must be completed by a third-party, CPSC-accepted laboratory, unless registered and qualified as a small batch manufacturer.[6]  Following testing, a Children’s Product Certificate (“CPC”) must be issued by the supplier. 
  • Flammability.  Specific requirements and cautions for children’s sleepwear are covered by 16 CFR part 1615 (child sizes 0 through 6X)[7] and 1616 (child sizes 7 through 14)[8]. 
  • Drawstrings.  Applies to the neck, waist, or upper outwear areas that includes jackets, ski vests, anoraks, sweatshirts, and ties.  These do not apply to underwear, inner clothing layers, pants, shorts, swimwear, dresses, skirts, and belts (although some state and local laws and regulations do extend these requirements to these types of clothing).  Sizes 2T through children’s size 16 hood and neck areas may not have drawstrings unless narrow requirements are met.  Alternative closures for these clothing sizes such as snaps, buttons, Velcro, and elastic are allowed[9].
• Lead and phthalates testing.  Certain clothing and accessories products must be tested for lead and phthalates (a chemical containing plastic).  Commonly tested components are buttons, zippers, snaps, screen-printing inks, and “tight-fitting” sleep wear for children inclusive of diapers.  These are all subject to phthalates testing as well as lead testing and meeting the requirements of not containing more than 90 parts per million (“ppm”) of lead for children 3 years or younger, and 100 ppm for children 12 years or younger.⁹  
• General labeling requirements.  In addition to CPSC requirements, the FTC sets out certain rules for clothing, including rules that require listing the fiber content, country of origin[10], the identity of the manufacturer or other businesses involved in the handling of the product, and the care and cleaning instructions on the label.  For fur products, there are specific size, durability, lettering, and ordering of the information used for labeling.[11]  The FTC also has specific rules around “Made in the USA” labels which generally employ the “all or virtually all” of the components standard.[12]
• Ports.  Clothing being imported through ports of entry get tested by CPSC’s Office of Import Surveillance (“EXIS”) that works closely with the U.S. Customs and Border Protection (“CBP”) at the ports.[13]  Questions around whether the product is hazardous will trigger the importer being asked to provide test records within 24 hours.  If a CPSC violation is found, whether through testing or untimely test record responses, the shipment product(s) in question will be detained or conditionally released with samples taken for further testing.  One sample is always permanently maintained with CPSC for record keeping and later additional testing if necessary.  It is highly stressed that importers provide detailed and accurate contact information in the event testing records are needed.  Supplied test reports must be for the exact item and encompass all components, be completed by a laboratory that is CPSC-accredited, and for children’s products, must be less than one year old. [14] 

Foley has created a multi-disciplinary and multi-jurisdictional team that is prepared to help clients accomplish their legal and business strategies with respect to CPSC and other agency compliance.[15]  To discuss how  CPSC and related regulatory requirements may impact your business, contact Erik Swanholt ([email protected]) or Rachel Pauley ([email protected]).

[1] https://www.cpsc.gov/Business–Manufacturing/Business-Education/Business-Guidance/Clothing#:~:text=The%20Commission%20issued%20determinations%20for,or%20zippers%2C%20must%20be%20tested.

[2] There are three main flammability classifications based on the speed of burning consisting of Class 1 (normal flammability), Class 2 (intermediate flammability), and Class 3 (rapid and intense burning). 

[3] 16 CFR §1610.1(c).

[4] 16 CFR §1610.1(d).

[5] Typically defined as clothing for ages 12 years or younger.

[6] https://www.cpsc.gov/Business–Manufacturing/Small-Business-Resources/Small-Batch-Manufacturers-and-Third-Party-

[7] https://www.ecfr.gov/current/title-16/chapter-II/subchapter-D/part-1615

[8] https://www.ecfr.gov/current/title-16/chapter-II/subchapter-D/part-1616

[9] https://www.cpsc.gov/s3fs-public/CPSC%20Apparel%20Requirements.pptx?VersionId=u_Ahu3_IeHBq63.ZL5iPb1U3fsXoA8HG

[10] See also chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.cbp.gov/sites/default/files/assets/documents/2020-Feb/ICP-Textile-Apparel-Rules-of-Origin-2004-Final.pdf

[11] https://www.ftc.gov/news-events/topics/tools-consumers/apparel-labeling

[12] https://www.ftc.gov/business-guidance/resources/complying-made-usa-standard

[13] https://www.cpsc.gov/Imports#:~:text=Proceed%E2%80%9D%20is%20sent%3F-,Yes.,the%20cargo%20under%20their%20authority.

[14] https://www.cpsc.gov/Newsroom/Video/Highlights-of-Apparel-Requirements-in-the-United-States

[15] https://www.foley.com/sectors/manufacturing/consumer-products/