September 14, 2006
A Guaranty is a good faith declaration that a product, fabric, or related material conforms with applicable flammability standards. The issuance of a guaranty must be based on reasonable and representative tests conducted in accordance with applicable flammability standards issued under the Flammable Fabrics Act (FFA) or based upon a guaranty received and relied upon in good faith by the guarantor. (See Section 8 of the Flammable Fabrics Act (15 U.S.C.1191) and 16 CFR 1608 General Rules and Regulations under the Flammable Fabrics Act.). A person receiving a proper guaranty in good faith is not subject to criminal prosecution
Section 3 of the FFA states that the manufacture for sale, the sale, or the offering for sale in commerce, or the importation into the United States of any product, fabric, or related material which fails to comply with an applicable standard or regulation issued under the Flammable Fabrics Act is a prohibited transaction.Guaranties declaring that products conform to an applicable flammability standard are generally issued to retailers, distributors or manufacturers (apparel) by U.S. manufacturers or importers. A retailer, distributor or apparel manufacturer will not be subject to criminal prosecution under Section 7 - Penalties of the FFA for selling violative products if they have received a guaranty in good faith from a U.S. based firm.
No, the issuance of a Guaranty under the Flammable Fabrics Act is optional.
For a guaranty to serve as a defense to criminal prosecution, the person issuing the guaranty must reside in the United States and maintain records in this country of the test results which form the basis of the guaranty. Tests performed by or on behalf of the Guarantor may be conducted outside the United States if these two requirements are met. A guarantor is subject to all the requirements of Section 8 – Guaranty of the FFA and the rules and regulations issued under the FFA, even if tests are conducted outside the United States.
5. How do I file a Continuing Guaranty with the Commission?
You may file with the Office of the Secretary of the U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, a continuing guaranty under Section 8 of the Flammable Fabrics Act applicable to any product, fabric, or related material. CPSC has made available a downloadable (pdf) fill-in form and instructions for preparing the form.In preparing a Continuing guaranty for filing with the Consumer Product Safety Commission, the following you should note:
- The form should be filed in duplicate with the impression of the official seal of the notary public on each copy filed.
- The form should correctly describe the guarantor’s business organization.
- The filing of the guaranty is optional, but if it is filed the guarantor must maintain written records which show the guaranteed products have been tested and conform to reasonable and representative tests as specified in the Regulations issued by the Commission.
6. Can the completed application be faxed?
No, because two originals must be processed. We will keep one in the official file and we will send one back to you for your records.
7. How long does a Continuing Guaranty last?
A continuing guaranty filed with the Commission must be renewed every 3 years. You must also re-file after any change occurs in your legal business status. The guarantor shall promptly report any such change to the Commission and advise the Commission of any change in the address of his principal office or place of business.
8. What is the Guaranty Number or ID Number?
CPSC issues a guaranty number (also called an ID number) to each unique firm filing a continuing guaranty. CPSC places the number in the upper right hand corner of the form we return to you after it has been reviewed and processed.
A firm may search this database to obtain information on active and recently expired guaranties. Any firm who has a continuing guaranty on file with the Commission may, during the effective period of the guaranty, give notice of such fact to its customers on the invoice or other paper with the guarantied product, fabric, or related material. The guaranty notice should say:Continuing guaranty under the Flammable Fabrics Act filed with the Consumer Product Safety Commission.
10. How much does it cost to file a guaranty with the CPSC?
CPSC makes no charge for this service.
11. What are the general requirements for a Continuing Guaranty?
A guarantor is required to maintain written records which show that the guaranties are based on test results which demonstrate conformance with reasonable and representative tests prescribed by the Consumer Product Safety Commission as set out in the Regulations issued in conjunction with the individual standards. Failure to maintain required records may subject you to civil or criminal prosecution under Sections 5 – Administration and Enforcement and 7 – Penalties of the FFA.To help avoid violating the law, it is strongly suggested that you:
- Set up a separate file for your copy of the continuing Guaranty that you have filed with the Consumer Product Safety Commission.
- Include in that file copies of all test results performed on products, fabric, or related material subject to the Guaranty or Guaranties from your suppliers to the effect that their products have been tested properly (or are exempt from testing by 16 CFR 1610.37(d) for clothing textiles) and meet the standard of the Flammable Fabrics Act.
By maintaining your copy of the continuing guaranty and the documents described above in one file, you can minimize the time required to verify your guaranty if the commission inspects your firm.
12. What are the specific product requirements for which you may file a Continuing Guaranty?
Clothing Textiles and Vinyl Plastic Film for Apparel
- 16 CFR 1610.37 – Reasonable and representative tests to support guaranties.
- 16 CFR 1610.38 – Maintenance of records by those furnishing guaranties.
- 16 CFR 1610.40 – Use of alternate apparatus, procedures, or criteria for tests for guaranty purposes.
- 16 CFR 1610.62 – Reasonable and representative testing to assure compliance with the standard for the clothing textiles.
- 16 CFR 1611.37 – Reasonable and representative tests under section 8 of the Act.
- 16 CFR 1611.38 – Maintenance of records by those furnishing guaranties.
Note: Guaranties may be issued without testing for fabrics listed in 16 CFR 1610.37(d). However, written records must be maintained to demonstrate that any fabric guarantied without testing is exempt from testing to support guaranties by the provisions in 16 CFR 1610.37(d).
Note: Guarantied fabric/apparel which receives further processing such as: printing, dyeing or finishing will generally be considered a new or different textile fabric and the previous guaranty will not be applicable.
Children’s Sleepwear
- 16 CFR 1615.31 and 1616.31 – Labeling, recordkeeping, advertising, retail display and guaranties.
- 16 CFR 1615.36 and 1616.36 – Use of alternate apparatus or procedures for tests for guaranty purposes.
Carpets and Rugs
- 16 CFR 1630.31 and 1631.31 – Reasonable and representative tests and recordkeeping requirements.
- 16 CFR 1631.32 – Reasonable and representative tests and recordkeeping requirements – additional requirements.
Mattresses (and Mattress Pads)
- 16 CFR 1632.31 – Mattresses/mattress pads – labeling, recordkeeping, guaranties and “one of a kind” exemption.
- 16 CFR 1633.13 – Tests for guaranty purposes, compliance with this section, and “one of a kind” exemption.
The above CFR citations can be found on the NARA (National Archives and Records Administration) web site.
Any person who falsely represents that he has a continuing guaranty on file with the Commission when that is not a fact, or who falsely represents that a limited continuing guaranty on file with the commission covers all products, when that is not the case, has issued a false guaranty. A False guaranty is an unfair method of competition and an unfair or deceptive act or practice and may be subject to civil or criminal prosecution under Sections 5 – Administration and Enforcement and 7 – Penalties of the FFA.