CPSC: No, we didn’t ask libraries to pull pre-1985 books

by Walter Olson on March 18, 2009

It’s been a day of dramatic developments on the CPSIA-and-libraries front. An Associated Press article out yesterday quoted Scott Wolfson, a spokesman for the Consumer Product Safety Commission (CPSC) as officially urging the nation’s libraries to remove from their shelves children’s books printed before 1986 until more is known about their possible dangers from lead in their inks, dyes and pigments:

Until the testing is done, the nation’s more than 116,000 public and school libraries “should take steps to ensure that the children aren’t accessing those books,” Wolfson said. “Steps can be taken to put them in an area on hold until the Consumer Product Safety Commission can give further guidance.”

Within the day, however, commission chief of staff Joe Martyak said that Wolfson had “misspoke”, and that the commission has neither concluded that the books might be dangerous nor recommended that libraries take any action. An early version of the AP story is here, with the Wolfson quote, and a later version here, for purposes of comparison.

Chewed-up leaves

It’s not as if Wolfson was making things up here. As readers will recall, one of the two CPSC commissioners, Thomas Moore, called weeks ago for some undefinedly large share of old books to be “sequestered” from children for the time being. However, the full commission has left the issue up in the air rather than endorsing Moore’s view.

The AP also turns to Jay Dempsey, a health communications specialist at the Center for Disease Control, a federal agency that I suspect knows a great deal more than does the CPSC about the public health problem of children’s lead poisoning. Dempsey does not rate highly the danger that a child will ingest lead from books: “on a scale of one to 10, this is like a 0.5 level of concern.”

I’m also puzzled by the following quote in the AP piece:

Also, the lead [in some older books] is contained only in the type, not in the illustrations, according to Allan Adler, vice president for legal and governmental affairs for the Association of American Publishers.

That’s not what I’ve heard; I’ve heard more often of the illustrations flunking than of the type flunking when books are subjected to x-ray fluorescence tests.

The AP article, which is getting wide national pickup, also reveals that the American Library Association knows of only two libraries that have sequestered such volumes — we’ve reported on one — and that both ceased the practice at ALA’s urging. It also links to an overview of the (current) book manufacturing process and its CPSIA implications, prepared by manufacturers of children’s books. It does not discuss the issue of books with nonpaper elements published between 1985 and today, although this too could pose enormous compliance problems given libraries’ large holdings of such books.

News buffs may be interested to observe that the new Associated Press story is out of Jefferson City, Missouri — not Washington, D.C., not New York City — and that it carries the byline of Lee Logan, whose byline can also be found on the excellent (Missouri-focused) AP story about the CPSIA minibike ban a week and a half ago. The AP has been notable for snoozing through most of the national CPSIA story over the past three months, but it sounds as if it may have one reporter who understands its importance.

Incidentally, a number of vaguely well-meaning associations and nonprofits (as well as many of a sharper ideological tint) signed on to endorse the CPSIA in its rush to passage last year. Among the former group, as Deputy Headmistress points out, was the American Library Association itself — sort of like Colonel Sanders getting an endorsement from the chickens. I wonder whether anyone has asked the American Academy of Pediatrics, American Association of Law Libraries, or Circumpolar Conservation Union whether anything about CPSIA’s implementation has caused them to rethink their support. I’m still trying to figure out what CPSIA has to do with law libraries or circumpolar conservation in the first place, except insofar as it causes more people to hire lawyers and want to run away to the North Pole.
P.S. In comments, Carol Baicker-McKee says she “spoke with Joe Martyak, the CPSC chief of staff, yesterday, and while he did not mention ‘sequestering’ books, he did tell me that there is considerable legal precedent for seeing libraries as ‘distributors in commerce’ so the agency definitely considers them to be subject to CPSIA.” More from Valerie Jacobsen: “[Unlike one librarian quoted in the story,] I don’t see many libraries with only a few pre-1985 children’s books. While library copies of picture books do tend to wear out early, chapter books for children ages 8-12 typically endure quite well.”
Public domain graphic: Edith Brown, ChildrensLibrary.org via Jessica Palmer.

{ 3 trackbacks }

CPSC Retracts? | The Bookroom
03.18.09 at 10:32 am
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{ 11 comments }

1 Carol Baicker-McKee 03.18.09 at 9:51 am

Interesting post. I also spoke with Joe Martyak, the CPSC chief of staff, yesterday, and while he did not mention “sequestering” books, he did tell me that there is considerable legal precedent for seeing libraries as “distributors in commerce” so the agency definitely considers them to be subject to CPSIA.

Martyak also told me that they are finding older books that under destructive testing do exceed the 300 ppm standard that goes into effect in August, and he noted that XRF testing is of limited use since it can only find the presence of lead in an area, but can’t tell anything about total lead in the product, and it’s the total lead that can’t exceed the limits. This comment points out another thing for folks to think about in deciding whether to push for component testing in place of destructive testing – if the standard is whether any part exceeds the limit, more items may fail than if the standard is whether the whole exceeds the limit – and my understanding is that required destructive testing only measures total lead.

Martyak said that the agency is continuing to test vintage books to get a sense for how widespread the presence of lead is in older books, and they won’t make a final determination about an exemption for the older books until then. Got the feeling that could be a while.

Martyak also said that the response to Dingell’s letter should be on the cpsc website today.

Stapled books are probably okay (perhaps with testing of just the metal used for them since the rest of the book is exempt), but he has to get back to me about whether the agency is still using the definition of an ordinary book as one that doesn’t have metal, plastic, or electronic parts (the definition in the small business guide does not mention those components).

2 Valerie Jacobsen 03.18.09 at 11:30 am

The smoke is coming out of my ears today! The only benefit to retraction, as far as I can tell, is to limit the number of people who know the policy and to limit the number of people who will call the CPSC and Capitol Hill today to complain!

Wolfson stated nothing more than the known, written, on-the-record policy. I just posted the evidences at bookroomblog.com

3 Frank 03.18.09 at 11:36 am

Just to note the AP story was picked up and ‘blurbed’ on my local news radio today.

4 Happymom4 03.18.09 at 1:57 pm

When will this circus end?! I want off–”destructive testing” of vintage books makes my heart WEEP! How can they be sure they aren’t destroying one or two of the last known volumes of that particular title?!

5 GR 03.18.09 at 3:24 pm

The AP article was paraphrased on my local TV news (WCBS) last night. Can’t find the story on their website, however.

6 Vivian Zabel 03.18.09 at 6:14 pm

Shades of utter ridiculousness. This whole debacle is looking more and more like a 3 Stooges escapade. Ish. Only thing, there are more than three stooges involved in this mess.

And members of government wonder why people don’t trust them.

7 Alan 03.18.09 at 10:05 pm

Does anyoneknow of a single instance when somone has bee cited or fined under the provisions of this act.

It seems like enforcement ha been nil.

8 Holly Jahangiri 03.19.09 at 12:32 am

I’m going to go out on a limb, here. Books should be exempt, period. That’s ordinary books – no matter what they’re bound with (including coiled wire bindings) – not vinyl books, not gadgets and toys attached to books (except maybe for Pat the Bunny – I’d make an exception for Pat the Bunny, just because I’m a sentimental pushover and it should be grandfathered into my exemptions, I think). Seriously, the law should be about balancing the harm, and in my opinion as a mother (never mind what the heck I think as an author): The thought of older children’s books being destroyed for testing or to eliminate even the real risk that readers will come into brief contact with lead causes much MORE harm than that likely to be done by actual exposure to any book in any library or book store.

I don’t know why our lawmakers are being asinine about it, but that’s the word for what they’re being. It’s ludicrous.

9 Sebastian (a lady) 03.19.09 at 3:27 am

So, is there any basis for fighting the regulations’ application to books as a violation of the 1st Amendment? Or is that considered not applicable to the situation because the books could be reprinted in a non offensive format?

10 Valerie Jacobsen 03.19.09 at 9:01 am

CPSIA is content-neutral, and it does leave open the theoretical possibility (but not the market probability) of reprinting everything old and precious, but even so the government would has the burden of proving that the CPSIA regulation of children’s books is narrowly tailored to serve a significant government interest in the least restrictive way.

By all accounts, the CPSIA regulation of books was unanticipated; it was unintended and accidental. It would be a little tough–I think–to go from accidental infringement to significant government interest, especially given that children aren’t being poisoned by old books.

Any content-neutral restriction must pass all three of the following tests:
[1] the restriction must be genuinely content-neutral (sometimes restrictions that seem to be content-neutral on their faces will restrict some kinds of content more than others)
[2] the restriction must be narrowly tailored to serve a significant or important governmental interest in the least restrictive way
[3] the restriction must leave open ample alternative channels of communication

CPSIA might pass the first and third tests, but I wouldn’t say that even this is certain. I don’t believe that this regulation, born as it was of ignorance and negligence, could pass that second test.

See Albert Krantz v City of Fort Smith for an example of how these tests were applied to one kind of content-neutral speech.

11 BG 03.19.09 at 11:21 pm

These are the pre-1985 lead-laced books congress ate rather than read.
http://www.takelifeback.com/moltz/
http://freedom-school.com/money/how-an-economy-grows.pdf

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