CPSIA and You and Me
If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!
In 2007 there was an epidemic of unsafe food, toys, jewelry, and clothing recalled because of lead, small unsafe parts, or other malfunctions and poisons. These came from Chinese manufacturers.
In response, Congress passed the CPSIA, a sweeping bill that will change how we shop, how we supplement our income, and add crippling costs to businesses that will have no choice but to pass them on to customers, if they can even stay in business at all.
Everybody is in favor of keeping children safe, but one of the problems with the unintended consequences of this bill is that many of the most onerous and confusing measures don't actually contribute to the safety of children at all. If you buy or sell used books, you will be feeling the impact of this bill. If you buy or sell children's clothing, you will feel the impact of this bill. If you shop at thrift shops, buy from crafters, pick up a few craft supplies for the kids from the local hobby store- you will feel the impact of this bill.
I first learned of the CPSIA bill and how it might affect families like mine, who buy or sell used items, especially books, from Valerie Jacobsen (thanks to a link from Carmon):
Our family owns Jacobsen Books, a small bookstore in Clinton, Wisconsin. In our store, we sell wonderful books of all kinds, including rare books, books for collectors and researchers, and books for families and children. While we love great literature of all kinds, our initial specialty and first love is children’s literature. The children’s corner is the favorite area in our store.
It’s my understanding that after February 10, 2009, it will be illegal for Jacobsen Books to sell any “children’s product” unless it has been tested according to new lead safety standards. The Consumer Product Safety Improvement Act of 2008 (CPSIA) requires lead testing of every batch of every children’s product, including books, and it includes no exemptions for used items, homemade items, adaptive and special needs items, or items already in inventory. The effects of this legislation could be devastating to our already troubled economy. Unless changes are made immediately, many children’s retailers are expecting February 10, 2009 to become known as National Bankruptcy Day.
Lead testing is important. I’m the mother of eleven children ages 18 years to 21 months. I love my children, and I definitely want to see my children and all American children safe and healthy. Protecting children from lead and phthalates is a good thing, but this legislation is very short-sighted. For sellers offering very low risk, very high quality products to children, this legislation threatens to destroy our small and medium-sized businesses.
Unless an exemption is added for used goods, our store will no longer be able to provide low-cost, high-quality used children’s books, but the ripple effect goes further.
Amazon is putting those who sell there on notice that they are responsible for proving to Amazon's satisfaction that their items have been tested. Here's a letter one vendor received from them:
“We will need your response by January 15, 2009 regarding lead and phthalate content compliance. If you supply any children’s products (that is, any products intended for children 12 and under) to Amazon.com, you will need to submit a completed spreadsheet listing those products and the applicable compliance information (a blank spreadsheet can be found in the Resource Center of your Advantage account), and return it to us via the Contact Us form.”
The cost of testings varies widely. The Smart Mama does XRF testing, which is acceptable for now, but probably will not be after August. She only charges 5.00 an item or 100.00 an hour. But if you are a used book seller, you have to test every used book in your inventory, and you have to pay for shipping to and from The Smart Mama. Your typical children's book sells for less than ten dollars an item. New books can be tested by the batch load (although currently the silly requirements call for brand-new testing if the title of the book changes), but used books, of course, cannot. If you make hand-designed bibs that you sell for ten dollars, you now have to add the price of shipping to and from Smart Mama plus 5.00 an item to the price of your bibs- possibly nearly doubling the price. This does not bode well for frugal shoppers, small businesses, or just about anybody else, not even the children it's supposed to protect.
And books are definitely covered. Whether or not used books would still be covered after yesterday's 'clarification' by the Commission is unclear. and I have more about that below. Many people were excited about a Tampa Bay news 10 story which quoted Julie Vallese as saying resale shops were exempt. She says she was misquoted:
Julie was misquoted out of context. What she said was that ooak [one of a kind] obviously couldn't be unit tested, not that it was exempt.
The Smart Mama Blog has a lot more, very level-headed, careful, and accurate information. I strongly encourage those concerned to bookmark her and check back often. Here are some excerpts intended to whet your appetite for more:
This post contains helpful information (I can find no way to hyperlink individual posts, but this one is Thursday, 08 January 2009 ):
For background, the CPSIA imposes a lead limit on children's products on February 10, 2009. As written, the CPSIA defines all children's products that do not meet a 600 parts per million (ppm) lead limit as "banned hazardous substances" under the Federal Hazardous Substances Act (FHSA). The FHSA prohibits the distribution in commerce of any banned hazardous substance. The CPSC's General Counsel has made it very clear that the CPSC believes the law requires all children's products in the market, including resale, to be obligated to meet the law.
On Wednesday the 7th she explained just what is so troubling about these rulings for the resale market:
...one of the biggest complaints has been about the retroactive component of the lead content ban. On February 10, 2009, the CPSIA establishes a lead content limit of 600 parts per million (ppm) for all children's products. It does this by defining those products that don't meet the 600 ppm limit as being "banned hazardous substances" under the Federal Hazardous Substances Act (FHSA). (See CPSIA section 101(a).) The FHSA prohibits the introduction or delivery for introduction into interstate commerce of a banned hazardous substance. (15 USC section 1263.) Also, CPSIA section 216 makes it unlawful for any person to "sell, offer for sale, manufacture for sale, distribute in commerce, or import into the US" any product that is a banned hazardous substance.
On January 2nd she tried to clarify much of the misinformation that is going out about this law:
(1) This law is not just about toys. This law involves all products subject to any consumer product regulation, ban, standard, etc.
(2) The lead content ban does not just apply to toys. The lead content ban applies to ALL children's products. The term children's product is defined as any product under the CPSC's jurisdiction intended for children under the age of 12. As of February 10, 2009, all children's products must meet the lead content limit of 600 ppm lead. This cannot be averaged across the product - each part (except those that are inaccessible within the CPSC's definition) must meet the limit. This limit goes down to 300 ppm on August 12, 2009.
(3) The lead content limit is different from the limit on lead in paints and coatings. The limit on lead in paints and coatings applies to those products that are painted or coated. In addition, children's products must ALSO meet the lead content limit.
(4) Items manufactured after the lead content limit is effective must be accompanied by a general conformity certificate from the manufacturer - for domestically made products - or the importer - for foreign made products.
[...](11) The textile exemption in the durable nursery goods provision DOES NOT exempt textiles from the lead content limits. They are two separate provisions of the law.
The Phthalate ban is NOT retroactive, but the lead ban is. And it's important to realize that while a lead ban sounds very attractive, there are a couple of problems with this. First of all, books, which don't contain lead (except for a few expensive collectables from before the 70s) are still covered. So are a number of other items that never contained lead. The onerous requirement is not that items must have below a new allowable limit for lead, but that they have to have third party testing to prove they don't have lead, and they have to do this not just for all the components in an item, but once the item is finished, the entire item has to be tested all over again.
Secondly, a dot of lead in a microscope lightbulb does not pose the same threat that a faux pearl button or a metal charm on a toddler's dress, but they are treated exactly the same way under the law.
As one wag put it, it is as though the Commission (and Congress) believed in Alchemy:
You use only 2 components to make an item. Let's say you're an Amish guy making cute wooden blocks. You use wood, which is certified lead free. You use beeswax as finish, it is certified as lead free. You use hand tools, which are certified lead free. You still have to test the product for lead!
Definitely-not-lead +Definitely-not-lead +Definitely-not-lead = LEAD
The government regs assume alchemy works. Perhaps this is really their secret bailout plan. Locate all the led in dangerous children items so they can turn it into gold!
Now it's not that lead in toy isn't a problem, but this problem needs to be addressed at the source, not by punishing small cottage businesses and used booksellers:
More than 21 million toys made in China - from Baby Einstein Discover & Play Color Blocks from Kids II Inc., to Thomas & Friends Wooden Railway by RC2 Corp. - have been recalled because of excessive levels of lead paint, tiny magnets that could be swallowed or other potentially serious problems.
On Friday, January 2, the Smartmama wrote that she does find certain items that typically fail the XRF testing. It would be a good idea, IMO, to avoid crafting with these sorts of items or buying used items with these products, unless you know they have been tested for lead:
In general, vinyl or polyvinyl chloride plastic usually has lead to stabilize it, so I find elevated levels of lead in everything from fake leather coats and purses to raingear to diaper changing pads - anything that is vinyl. I also find lead in fake pearls - the inexpensive ones. Also fake shell or pearl buttons on clothing. Pot metal jewelry and charms are usually lead. Some crystals attached to clothing.
Yesterday the CPSC (a Commission of two people), issued this clarification for resale shops here:
The new safety law does not require resellers to test children’s products in inventory for compliance with the lead limit before they are sold. However, resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.
When the CPSIA was signed into law on August 14, 2008, it became unlawful to sell recalled products. All resellers should check the CPSC Web site (www.cpsc.gov) for information on recalled products before taking into inventory or selling a product. The selling of recalled products also could carry civil and/or criminal penalties.
While CPSC expects every company to comply fully with the new laws resellers should pay special attention to certain product categories. Among these are recalled children’s products, particularly cribs and play yards; children’s products that may contain lead, such as children’s jewelry and painted wooden or metal toys; flimsily made toys that are easily breakable into small parts; toys that lack the required age warnings; and dolls and stuffed toys that have buttons, eyes, noses or other small parts that are not securely fastened and could present a choking hazard for young children.
My take on that is here.
Here's a site where a corporate website answers questions about the CPSIA from their clients. Of interest:
Q1: Are socks required to undergo lead and phthalate testing?
A1: Phthalates testing is not applicable to socks. Testing for phthalates is required only for children's toys and child care articles. Lead testing is applicable to children's socks as the lead requirement applies to all children's products. The CPSC, to date, has not exempted any materials or products from the lead content requirement.
[since this was written, the CPSC, a Commission of two, has exempted undyed silk, wool, cotton, and also some gems such as pearls.]
Q2: Is wearing apparel subject to the phthalate limits under Section 108?
A2: Children's wearing apparel generally is not considered a toy because it is not intended to be played with by a child. Therefore, it would not be subject to the phthalate limits. In general, costumes used for theatrical productions and for Halloween are considered wearing apparel and therefore would also not be covered by the definition of children's toy under Section 108. However, dress or play costumes sold as part of a toy set and intended to be worn during play could be considered a toy under Section 108. In addition, sleepwear and bibs for children three years of age and younger would be considered child care articles as defined under Section 108 and would therefore be subject to the phthalate limits. Such items are designed or intended to facilitate sleep and could possibly contain phthalates. Children's rainwear made of vinyl or other plastic or plastic-like material would not be subject to the phthalates limits, as it is not considered a toy or a child care article. Adult wearing apparel, by definition, is also not subject to the phthalate limits under CPSIA.
Whether you buy at thrift shops or not, this bill will affect you. It will raise the cost of all children's goods without any corresponding increase in safety of those children's good. Those items that were recalled in 2007 were already in violation of existing laws. Scofflaws will still violate the law and just work their way around it. Law abiding citizens will, if they sell used books or home-made crafts, simply go out of business.
Some businesses have explained that they will deal with the issue by reducing inventory- a business that sells perhaps 400 adaptive devices for handicapped children will look over their inventory and determine which items it is cost effective to test. They will just stop selling the items that don't sell in high enough volume to justify testing and reduce their inventory to perhaps 50 items.
So it's a bill with good intentions, and I believe particularly in the area of children's jewelry and imported toys from China, some sort of response was necessary. However, it's far too sweeping and onerous in application and doesn't really address things at the source- Chinese imports and manufacturing. A crafter who crochets baby toys from baby yarn may find that her yarn suppliers simply don't want to bother with the burdensome testing requirements, so they will alter their terms from 'baby yarn' to soft, or lightweight, and tell the crafter that they don't make baby products, she does, so she needs to do the testing. Books should certainly be exempt, and the requirement that changing the words on the page merits an entirely new testing cycle is ludicrous. All the ways that this bill is problematic in implementation are too numerous to count
But it's not just about lead testing (btw, there are currently only 15 approved labs in the US- others? In China)- it's also about new labeling requirements. These requirements are actually impossible for many small crafters to follow, and they are certainly troublesome for others we well.
See here for more.
What can you do?
Write your Congress critters. Be forewarned that every one of them who was in office in 2007 voted for this bill, except Ron Paul. They are very proud of it and think they did a wonderful thing. They typically have been responding with form letters that completely ignore the substance of the complaint letters they've received. In fact, they probably do not see your letters at all, their aides do. So you need to be prepared to write twice, or word your first letter in such a way to make it clear you will not be fobbed off by a form letter which ignores your concerns about small cottage businesses, books, and resale shops.
Find your Congressperson here.
Find your Senator here.
Write Cheryl Falvey, General Counsel of the USPSC
Write to the CPSC here.
Respond to the CPSC Request for Comments (deadline, January 30)
Respond to their request that those who make and sell children's products send them a list of products they use that are inherently lead-free so they should be exempt.
Email them at Sec101Determinations@cpsc.gov, telling them what products should be exempt and why. Currently the only exemptions are
Write letters to the editor.
Email your friends.
Blog about it.
The Ideas for Change in America competition was created in response to Barack Obama's call for increased citizen involvement in government. The final round of voting began on January 5 and is comprised of the top 3 rated ideas from each of the 30 issues in the first round of the competition, which collectively received more than 250,000 votes.
The top 10 rated ideas from the final round will be presented to the Obama administration on January 16th at an event at the National Press Club in Washington, DC, co-hosted by the Case Foundation. At the event we will also announce the launch of a national advocacy campaign behind each idea in collaboration with our nonprofit partners to turn each idea into actual policy.
Currently,
Save Small Business from the CPSIA is in third place (legalize Marijuana is in first, just so you know), and I do not know just how much of an ear President Obama will give to this, but it would be great if the issue could gain his attention because of a little bit of history about the CPSIA and the currently two person commission which implements the Consumer Protection laws Congress writes.
According to a New York Times story from 2006, this CPSIA that's giving so many people such heartburn was a Democrat-sponsored bill which President Bush was opposed to- for many of the reasons we've mentioned, although not specifically used items (not that he gets any credit for his opposition, since he signed the Democrat bill into law anyway, and the only person who voted against it was Ron Paul). His appointee, Nancy Nord, head of the agency, TOLD Congressional Democrats they were turning the agency into a a litigatious mess instead of giving her the resources to protect children, and if this bill passed, she was going to be forced to change the agency's focus on hiring lawyers and legal details instead of actually effectively protection children, because it would require more lawyers than scientists to fulfill the new directives the Democrat bill was imposing.
In response, they called for her resignation. She is still there. However, the third person resigned, leaving the agency in an interesting position because legally, the agency had to have three members in order to take certain actions (issuing recalls, for one thing).
President Bush did nominate a third person in order to give the Commission the legal quorum required, however, the Democrats refused to confirm his pick and eventually the guy withdrew. After that, Bush didn't make another nomination, and, according to this article,
http://blogs.consumerreports.org/safety/2008/02/cpsc-quorum.html the Democrats simply voted on 'temporary' extensions for the last two years, making the 2 person commission a 'quorum.'
Then, when they wrote the new CPSIA, they extended the authority of the temporary two member quorum for a full year (bringing them up to August of 2009, ie, after the election, making it clear that there was no point in Bush appointing a third member for the Democrats to refuse to seat)- and they changed the make-up of the Commission so that when Obama takes office this will be a five member commission.
That makes it imperative that people write to President-Elect Obama and explain all the problems with this bill and its implementation. He should be sympathetic to at least some concerns- after all, the Obama family does buy organic arugula at Whole Foods markets, indicating some interest in the same sorts of things that motivate many small crafters who sell hand-made toys.
Obama will have the authority to appoint at least three new Commission members (possibly more, as I assume he has the power to replace Bush appointees, but I don't know for sure about that), giving his appointees the majority, and it is highly unlikely that Congress will refuse to seat *his* appointees. I expect the current Commision members will go and he'll actually appoint five, so we need to contact him asking him to appoint members who are sensitive to the needs of small business, of hand crafters, cottage industries, and the resale market- who understand that books are unlikely to contain lead, for instance.
Those five people are the ones who have 'the power to explain how smaller retailers and manufacturers should follow the new rules when they go into effect,' according to The Consumer's Union.
Keep in mind when you contact President-Elect Obama, that he must have voted for this bill as well, since everybody except Ron Paul did.
For more information, you might want to check out my CPSIA posts at my regular blog, and follow #CPSIA at twitter.
Want more like this post? Read on!
- When it pays to buy new We have never owned a new car. We never purchased...
- We Have a Wedding A Week from Today!! This is a two-part post. I've written about some of...
- Various and Sundry Wonderfully frugal way to get clean, soft, lovely skin- I...
3 Responses to “CPSIA and You and Me”
January 9th, 2009 at 6:06 pm
Oddly enough, Obama didn’t vote for the CPSIA. Neither did McCain or Hillary.
Why doesn’t it appear in the records this way?
Because those 3 failed to appear for the vote. Who knows if these 3 would have voted for or against it.
Thanks for commenting on my blog:)
January 9th, 2009 at 9:06 pm
Go to the cpsc website they have a clarification up.
January 12th, 2009 at 4:19 pm
Liz, I have seen their clarification. I blogged about this on my regular blog on the 8th, you can read my concerns here
You should know that a number of people, including lawyers, do not find that clarification reassuring. Resale shops are still at risk. All they really said is that the shops don’t have to test, but they are still liable to be prosecuted for selling untested items.
Allan Adler, VP for legal and government affairs at the Association of American Publishers also looked at the ‘clarification’ for resale shops and sees it as unclarified as I do. He:
(the Smartmama also sees that clarification as I did, see her January 10th article both for her take on that, and a very helpful list of those things she finds typically have lead).
Random House and other publishing houses are now involved in fighting the CPSIA, and the ALA has sought further clarification from the Commission as well, as their lawyers do not see how the Commission can legally excempt them.
In addition, the ‘clarifications’ are not binding. They aren’t legal advice. And they have an expiration date- the current Commission of two will have three more people added when Obama becomes President, and they may well be replaced altogether. The new Commission can overturn whatever this one has done.
See my regular blog and click on the CPSIA label to follow the latest on this bill.
Thanks.
Leave a Comment