APSP Meets with CPSC December 8 on VGB Compliance Issues for Portable Hot Tubs

The APSP will meet on December 8 with the Consumer Product Safety Commission (CPSC) on several critical compliance issues for portable hot tubs under the Virginia Graeme Baker Pool and Spa Safety Act (Act) including non-availability of covers and the two-plane issue. APSP will urge the CPSC to adopt the APSP proposed clarification language for the spacing of multiple drains in portable hot tubs in the forthcoming CPSC interpretation of section 1406, residential pools and spas, and discuss possible solutions and ask the CPSC for guidance on the use of covers when no available compliant covers are available.

In addition, in a November 10 letter to Cheryl Falvey, CPSC General Counsel, APSP submitted that, based on its review of legal precedent, the Act’s drain cover requirement (section 1404(b)) should not apply to drain covers manufactured prior to the effective date of December 19, 2008, or to products such as portable hot tubs that contain such existing covers. APSP submitted that pursuant to the Consumer Product Safety Act, Consumer Product Safety Rules, such as the drain cover provisions, should apply only to products manufactured after the effective date. The APSP also argued that to apply statutes retroactively to existing product, there must be an “unmistakable congressional intention to that effect,” which is not found in the Act.

APSP worked with spa and cover manufacturers to address the lack of availability of covers that comply with the Act, and was successful in having this issue added to the December meeting agenda. APSP communicated with residential portable hot tub manufacturers, as well as the manufacturers of the spa drain covers, and all confirmed that while covers of the size and shape used on portable hot tubs have been tested and approved, the flow rating assigned to these covers under the ASME/ANSI A112.19.8 2007 standard is drastically reduced and far lower that what is required for the hot tubs. Thus, there are currently no covers suitable for use on existing residential portable hot tubs that comply with the ASME/ANSI A112.19.8 2007 standard, and there is a high probability that such covers will not be available as of December 19, 2008, the effective date of section 1404(b).

At the meeting, APSP will also recommend that CPSC adopt proposed clarification language for multiple drains to include drains located on two planes of the hot tub, even if the drains are less than 3 feet apart. The APSP proposal is designed to provide as many safe and effective options as possible so that hot tub manufacturers have flexibility in complying with the Minimum State Law Requirements that the CPSC will be proposing under the Act. Requiring that all “multiple drains” be spaced three feet apart could potentially have a crippling effect on the residential portable hot tub industry and so it is critical that the CPSC recognize other safe configurations. The CPSC has indicated that it will give careful consideration to this proposal.

While there are no guarantees of the outcome of the meeting, or the APSP letter on retroactivity, the APSP is hopeful of positive outcomes for the portable hot tub industry and hopeful that, as in the past, the CPSC will continue to be flexible in recognizing proven and safe options in enforcing the new law for industry members who are making good faith efforts to comply with its requirements.