Chronicling the high cost of our legal system
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Rick Woldenberg casts a skeptical eye on the Toy Safety Certification Program (TSCP), a voluntary toy-safety program promoted by both the Consumer Product Safety Commission (CPSC) and the Toy Industries Association that in some respects goes beyond even the requirements of the CPSIA. His contention: “the TSCP significantly favors mass market companies in an almost shameless way.”
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The toy shelf gets barer. [Daddy Types] Related: Handmade Toy Alliance, Dan Marshall, Rick Woldenberg, Common Room.
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By a 3-2 vote, the CPSC has confirmed that the absurd and inflexible Consumer Product Safety Improvement Act bans the sale of children’s products which contain components of conventional (leaded) brass. The vote drew dissents from commissioners Anne Northup (statement) and Nancy Nord (official comments, PDF; further statement at her blog). From the latter:
…The Commission has now very clearly determined that we do not have the flexibility under the law to make common sense decisions with respect to lead.
…I am especially concerned about what this decision means for our schools, where brass is found on desk hinges, coat hooks, locker pulls and many other items. Are schools now going to be forced to remove all brass and if so, who will bear this financial burden?…brass is found throughout a home and removing it from toys does little in terms of removing it from a child’s environment. If brass were really harmful to children, we would be taking action to remove it from the home but no one is suggesting that there is a safety issue that needs to be addressed in this way.
Evidence of actual health risks from brass in the everyday environments of American children is, of course, anything but compelling. Rick Woldenberg has been covering the story here, here, here, and here. Greco Woodcrafting predicts rough times ahead for school bands, as well. And the WSJ editorializes today.
More: this summer the CPSC issued guidance on the closely related topic of ballpoint pens (the roller balls of which include lead alloy); the upshot was so long as manufacturers don’t primarily market any given pen design as being for kids, they’re in the clear, even if large numbers of children are among the pens’ users. (Writing Instrument Manufacturers Association petition and response, both PDF; earlier here, here, etc.) For more on that episode, see 3 Green Angels, NAM “Shop Floor” and more, Rick Woldenberg and more, and Whimsical Walney.
PUBLIC DOMAIN IMAGES from Elise Bake, Der Ball Der Tiere (”The Animals’ Ball”, German, 1891), courtesy ChildrensLibrary.org.
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A nice way to support a family, but it’s sure too bad about CPSIA. And a Columbus, Ohio stay-at-home mom trained as an artist is afraid the law’s testing costs will sink her small-batch online business making bibs, burp clothes, blankets and similar baby items. [Business First of Columbus]
P.S. Be warned: the Grand Haven, Mich. report contains an error regarding the law’s coverage of secondhand stores (h/t reader Panthan in comments).
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[Bumped Monday a.m. for readers who missed it over the weekend]
The piece appears in the business section of Saturday’s Times, and it’s a perfectly good one as far as it goes. It starts off with a wooden toy maker in Ogunquit, Maine, who estimates that it would cost him $30,000 to secure testing for the 80 items he makes, using such materials as maple, walnut oil and local beeswax. It touches on the strains between large and small manufacturers, 
as well as the thrift-store and vintage-book angles. Overall, it’s really not a bad piece of its sort.
Aside from its timing, that is. The Times has now gotten around to covering some of the harm done by this law ten months after the Washington Post and other media had begun reporting the basic outlines of the story; nine and a half months after a furor had built to national proportions, prompting both members of Congress and the CPSC to hurry out supposed clarifications; nine months after hundreds of bloggers were on the case, the law’s effects on thrift stores were making headlines from coast to coast, and the Times’s continuing failure to report on the law’s effects had commentators noting its “weird blind spot” on the issue; eight and a half months after a deeply clueless Times editorial assailed critics of the law who 
“foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses”; seven and a half months after protests by minibike dealers began drawing wide national coverage; seven months after critics rallied on Capitol Hill, and the Washington Post joined in reporting on the law’s dire effects on vintage (pre-1985) kids’ books; and so on to the present.
Okay, so the Times was — well, not a day late and a dollar short, but more like 300 days late and many billions of dollars in overlooked costs short. Still, let’s be grateful: the paper’s news side has now implicitly rebuked the editorial side’s fantastic, ideologically blinkered dismissal of “needless fears that the law could injure smaller enterprises”. And the Times’s belated acknowledgment of the story can serve as permission for other sectors of the media dependent on Times coverage — including some magazines and network news departments — to acknowledge at last the legitimacy of the story and begin according serious attention to the continuing CPSIA calamity. When they do, they will find much to catch up on. (& welcome Handmade Toy Alliance, Chris Fountain readers)
PUBLIC DOMAIN IMAGE from Ethel Everett, illustrator, Nursery Rhymes (1900), courtesy ChildrensLibrary.org.
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Don Boudreaux has some thoughts on that. [Cafe Hayek]
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And per this L.A. Times account, business — at least business with an organized Washington, D.C. presence — is on board, just as it was when CPSIA passed. So what could go wrong?
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More background reading on the Draconian consumer product safety law:
to resolve class action over toy recalls; claimed value of settlement to class (vouchers, etc.) is something like $37 million [National Law Journal, Coughlin Stoia release; earlier] Note also Rick Woldenberg’s March analysis of one recall (recall of 436,000 units premised on two cans of bad paint). 
“the scary people behind the law” [Woldenberg] 
difference between crony capitalism and the real kind [James DeLong, The American, with kind words for a certain "indispensable" website that's covered the law] PUBLIC DOMAIN IMAGES from Ethel Everett, illustrator, Nursery Rhymes (1900), courtesy ChildrensLibrary.org.
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The American Enterprise Institute is holding a panel discussion in Washington, D.C. Tuesday afternoon and I’ll be one of the participants, along with David W. K. Acheson of Leavitt Partners, Carol Tucker Foreman of the Consumer Federation of America, and Michelle Worosz of Auburn University, with AEI’s Kenneth Green as moderator. Details here. I’ve had a few things to say about food safety over the years and am also likely to draw on the potential parallels presented by the calamitous Consumer Product Safety Improvement Act (CPSIA).
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Can’t be too careful in comforting kids at crime scenes, you never know what might be in those old teddy bears [WISC-TV, Handmade Toy Alliance, Rick Woldenberg] Cops in the Wisconsin town are giving kids books instead, presumably books printed after 1985 (& Sykes/WTMJ).
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It looks rather as if the new management at the Consumer Product Safety Commission (CPSC) is trumpeting some of its rigid decisions in enforcing the horrendous 2008 law — its refusal to exempt the use of harmless rhinestones on kids’ clothing, for example — as if they were something to boast about. [Washington Post; Rick Woldenberg]
It’s being predicted that they’ll drive a lot of smaller operators out of business; I suppose the resemblance to CPSIA is just coincidental. [The Cape Codder]
What, you mean the phthalate provisions in CPSIA might have been an overreaction? [Scientific American, July]
More: “Why It’s Impacting Textile Screen Printing” [Ed Branigan, International Coatings Blog]
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On the craft site Etsy, Cecilia Leibovitz of the Handmade Toy Alliance provides an update on the present state of affairs, including component testing, rhinestone workarounds, and the CPSC’s exemption of ordinary fabric (but not many other constituents of sewn goods) from third party testing.
Sally Harpold was cuffed and arrested for buying two packages of cold medicine within a week in violation of Indiana law, though no one contends she or anyone she knew intended to cook them down into methamphetamine [Terre Haute Tribune-Star] Harpold’s story has been racing around blogs well known to our readers: Radley Balko/Reason “Hit and Run”, Ken at Popehat, Amy Alkon (with bonus kind words for @walterolson), Legal Blog Watch, BoingBoing. The Vermillion County, Indiana prosecutor is offering no apologies.
P.S. A Popehat commenter finds new reason to doubt those reassurances on CPSIA enforcement along the lines of “don’t be silly, they’d never go after grandmothers over rummage sales or homemade crafts“.
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Karen Raugust, Publisher’s Weekly, on some recent clarification (not exactly relief) for makers and sellers of new books under the Draconian law:
The Consumer Products Safety Commission recently issued a final lead rule that deemed many—but not all—of the components in ordinary children’s books safe. …
Most ink-on-paper and ink-on-board books will not have to undergo testing under various CPSC rulings. (Some so-called “ordinary” books, such as those with gold foil or spiral bindings, must be tested, and big retailers may require testing even when the CPSIA doesn’t.) All novelty and book-plus formats for children 12 and under must be tested by independent labs.
However, the CPSC has yet to issue promised guidance to libraries on pre-1985 books:
Thom Barthelmess, president of the Association for Library Service to Children, a division of the American Library Association, says most librarians are waiting to see what happens. “We’re hoping for a happy resolution, so our collections aren’t decimated,” he says. If the CPSC’s ruling results in libraries needing to pull books from shelves, “there would be huge ramifications,” he continues. “If we lose a lot of titles printed before 1986, many of which are irreplaceable, it would have a huge impact on the nature of our collections.”
We’ve linked the coverage in Publisher’s Weekly several times over the course of the year but overlooked this report from March:
Most booksellers are now comfortable selling ordinary paper children’s books printed in 1986 and beyond. …
Half Price [Half Price Books, a large chain] removed all book-plus items from the shelves in every store and is warehousing them while it researches how to dispose of them in a safe and environmentally sound way, perhaps at a hazardous waste site.
And an official of the Independent Online Booksellers Association told PW in March that most members of the association were positioning their vintage children’s books as adult collectibles, which supposedly reduces legal risk, though as we noted in February, “the law provides that [retailers] are liable if they sell a product which will commonly be understood as destined for use by children, whether or not they label it as such.” Deputy Headmistress in February and Valerie Jacobsen in March also explained more about the practical drawbacks of the “relabel as collectibles” dodge, as has Elizabeth Mullaney Nicol more recently.
P.S. And welcome listeners at Hartford’s WTIC, where host Ray Dunaway had me as a guest on his show this morning to discuss the law. You’ll find much more here.
PUBLIC DOMAIN GRAPHIC: Edith Brown, illustrator, Jeannette Marks, The Cheerful Cricket and Others (1907), courtesy The Children’s Library.
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PUBLIC DOMAIN IMAGES from Ethel Everett, illustrator, Nursery Rhymes (1900), courtesy ChildrensLibrary.org.
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PIRG be not proud: “Until recently, I had high hopes that this law would be amended. …
We do not mass produce our products, for that our customers love us, and for that congress has made it impossible for us to continue selling our toys without breaking the law.” — Tammy Bowles, founder of the Ohio-based educational plaything line StoryBlox, whose former line can be browsed here. More: Ken at Popehat.
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Point of Law Volokh
