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CPSIA and toys

Last Wednesday’s CPSIA rally at the Capitol drew an overflow crowd of hundreds, with thousands more reportedly watching from around the world via webcast. Many speakers had powerful stories to tell, and cameras from CNN and ABC were on hand to record them; AP mentioned the event in covering the dirtbike-ban story. There is, as you might imagine, no way to upstage a six-year-old motocross champion who declares from the podium, “I promise I won’t eat my dirt bike”.

A few things I learned by attending:

  • Ordinary bikes (not the motorized kind) are clearly out of compliance with the law because of the leaded brass in certain components, and have been given no exemption. I’m still wondering why the CPSC directed the motorbike dealers to tarp over their inventory but did not do the same with the ordinary-bike dealers. Earlier here; much more (PDF) in this CPSC submission by Mayer Brown for the Bicycle Product Suppliers Association.
  • Until I saw their handout leaflet, it hadn’t sunk in that the non-profit and charitable giants in resale, including Goodwill, Salvation Army, Easter Seals, Volunteers of America, and St. Vincent de Paul, have banded together in a Donated Goods Coalition. Good for them, and I hope someone listens.
  • Held up for inspection

  • Even blogging the subject as much as I have, I’ve somehow said almost nothing about CPSIA’s requirements for batch numbering, labeling and tracking of kids’ products, due to hit later this year. It seems these requirements all by themselves will suffice to wipe out small producers in droves even if the crazy testing requirements can somehow be made sane.  A few write-ups touching on the subject: Handmade Toy Alliance (Word document), Kathleen Fasanella/Fashion Incubator, Publisher’s Weekly.
  • The rally happened because of the efforts of grass-roots business people around the country, above all Rick Woldenberg of Learning Resources. (The story of the Oregon delegation could stand for that of many others.) Motorbike people were much in evidence. Also present: people from trade associations from regular businesses not been much heard from in the CPSIA furor of recent months, including makers of shoes and footwear, cribs, and even household cleansers, all of whom turned out to have stories to tell. Who knew there was a whole association specializing in the little items you get when you put in the quarter in the vending machine and turn the crank?
  • Kids’-book author (and valued commenter) Carol Baicker-McKee was there and gave a superb talk, making effective use of a copy of Orwell’s 1984. Otherwise, however, among groups deeply affected by the legislation, the book and library trades were conspicuous by their absence. I wasn’t the only one who noticed this; so did Publisher’s Weekly.
  • I finally got to meet face to face many persons who have been favorably mentioned in these columns over the past three months. I was not surprised to find a whole lot of nice, dedicated people, the sort of people you’d want to be making products for your children to use. You, Reader, would have enjoyed meeting them too.
  • Many members of Congress spoke. All were Republican, and a few were pretty good. For better or worse (maybe some of each) there was a minimum of partisanship, with scant mention of the reports that the Democratic House leadership had ordered members not to attend. Several lawmakers minimized the institutional role in the debacle of Congress (which passed the law last year almost unanimously), instead seeking to throw the blame onto the CPSC’s management, which put them surprisingly close to the position of Henry Waxman himself. One GOP member said it was important to be nice to the Democrats and not alienate them, since they held all the power. Not observing the nicetiesThis may have been good advice, but I was still a little surprised.
  • Amid a great deal of talk about unintended consequences, very little was said about there being actual adversaries out there, who know quite well what the law is doing and support it anyway. If more than a word or two was breathed about the roles of Public Citizen, PIRG, or the various members of Congress who are actively hostile on the issue (and not just “needing to be educated”), I missed it. Which meant (it seemed to me) that some of the good people who’d taken the trouble to come to Washington were going to be surprised and perhaps unprepared when they discovered figures out there like, oh, just to pick randomly, Illinois Sen. Dick Durbin, whose positions are not so much unreflected-on as deeply hostile (and with mysteriously unsourced numbers too).

Speaking of which, Consumers Union, publisher of Consumers Reports, confirmed once again that it falls into the “hostile” and not merely “unreflective/ uninformed” category with this deplorable hatchet job, which provoked a slew of angry, substantive comments; see also blog posts including those of Carol Baicker-McKee and Sheeshamunga.

More rally coverage: Domestic Diva, Polka Dot Patch.
Public domain image: Yankee Mother Goose (1902), illustrator Ella S. Brison, courtesy ChildrensLibrary.org.

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Ordinary kids’ bicycles, as opposed to the motorized kind, haven’t gotten much attention in the CPSIA outcry. But they’re in trouble too. More: see April 6 update, including an informative CPSC submission (PDF) by Mayer Brown for the Bicycle Product Suppliers Association; and an upcoming meeting of the alarmed industry.

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The Handmade Toy Alliance tries to take a moderate and reasonable approach toward reforming a law that is itself neither moderate nor reasonable. Its recommendations:

  • 1. Component-based testing…
  • 2. Exemptions from testing…
  • 3. Harmonization with European Standards…
  • 4. Exempt permanent batch labeling…
  • 5. Revisit the retroactivity of the CPSIA…

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In some ways the most distinctive costs of the Consumer Product Safety Improvement Act are the human-scale kind that are hard to measure — the handicrafters’ livelihoods blasted, the families unable to find sturdy winter clothes at the Goodwill, the kids who can’t get their dirtbikes serviced, the threats to vintage children’s books and to small-run items for special-needs kids. poorwidowfrombabylon2But there are also a number of measurable, tangible economic costs that might capture lawmakers’ attention, and which affect larger, more sophisticated actors as well as the small producers, dealers and families that have found it so difficult to make their voice heard in Washington.

  • A survey by the Toy Industries of America says the law has already cost toy businesses more than $2 billion [Playthings, Toy News]. As readers will recall, the minibike/powersports industry projects that the ban on its youth products will cost $1 billion by year’s end. That’s $3 billion right there, representing only two of the many industries hit by the act; it doesn’t include (for example) apparel, resale (two apparel-making groups report $700 million in stranded inventory, costs to Goodwill and Salvation Army may exceed $270 million), books, school and party supplies, sporting goods, furniture, and so forth.
  • The stock price of well-known kids’-apparel retailer Gymboree slid by 40 percent overnight early this month “on news that it took massive inventory write-offs in the most recent quarter and suffered sharp margin declines and sales losses, all as a result of the CPSIA”. At a conference call with investors, Gymboree chairman/CEO Matt McCauley noted that phthalates are found “in many screenprints”, which makes their ban an important issue for apparel. Remember the court’s last-minute ruling that the phthalates ban would have to be retroactive to existing inventory, even though the CPSC had given guidance to manufacturers that only post-Feb. 10 production would be affected? Attorney Aaron Colangelo of the Natural Resources Defense Council, who had litigated that case successfully, was quite dismissive about the difficulties of compliance at the time. Well, according to McCauley, that one decision rendered 1.7 million units of inventory at his chain unsalable. “As many of you know, we operate on a nine to 12-month product cycle,” he told the investors. But of course few on Capitol Hill seem to have thought it amiss for new rules to be imposed within a period of a few months, or, as with the court reversal, a few days.
  • Auction Bytes: “On March 14, 2009, Amazon.com will remove approximately 2,500 products from the Toys and Baby categories in order to comply with the Consumer Product Safety Improvement Act of 2008 (CPSIA). The company said it had not received certification of CPSIA compliance from the manufacturers of those products. Amazon will cancel all seller offers against the ASINs, and their detail pages will be removed from the site.” (company’s statement). For readers who are new to the subject, that does not imply that any of the 2,500 items pose any serious risk, nor does it imply that any particular item would fail to pass the new thresholds with flying colors. oldwomantossedup2In many instances it indicates only that the makers have not gotten their ducks in a row to obtain GCCs, possibly because they’re unfamiliar with the process, or can’t afford the tests, or plan to get out of the business soon.
  • Note that as in the Amazon case, the much-publicized stay of CPSC enforcement for a year applying to most newly manufactured goods doesn’t in practice protect small makers from seeing their product lines squeezed out of major channels of commerce if they fail to launch a compliance program (no matter how unlikely it is that their knitted booties or wooden puzzles contain lead). To cover themselves from legal attack, deep-pocket retailers demand GCCs (general certificates of compliance). Last month, apparel-maker mentor Kathleen Fasanella wrote: “Most (okay, all) of the retailers I’ve spoken to, are still requiring GCCs [despite the stay]. Furthermore, they are enforcing the August standard of 300ppm.”
  • Plum Privy has been compiling estimated costs of the law from news reports, with the tally already exceeding $4 billion. Persons in affected lines of work may want to check in at that site to offer additional information or refinements.
  • Understatement of the year? Writing in Apparel mag, lawyers with Mintz Levin call the law “extremely burdensome and bewildering“.

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An audio is now up of my guest appearance yesterday on Hugh Hewitt’s radio show. And Canadian blogger Charles Henry has generously compiled a transcript of the segment, an especially useful resource because he’s embedded relevant links. He’s also posted a transcript of another segment of the show in which attorney/guest Gary Wolensky talks about this week’s big library/CPSC outcry, as well as vacant toy shelves (“That’s A CPSIA Toy, We Can’t Sell It To You“).

kidrainstorm

If CPSIA is premised on anything, it’s the idea that before makers of goods place items on the market, they should have to shoulder the burden of proving that they’re safe, even if it seems very, very unlikely on the face of it (as with books, cotton bibs, ballpoint pens, etc.) that they’re doing any significant harm. Is this perhaps an early application of the much-debated “precautionary principle“, which proposes that gaps in scientific knowledge be resolved against those who want to introduce anything new or potentially dangerous? Deputy Headmistress wonders. She also links to Rick Woldenberg who continues his revisionist looks at the Great Toy Scare of 2006-7, noting that in one much-publicized recall of 436,000 toys by Mattel, the trigger for the recall was that “TWO CANS OF PAINT slipped through its safety systems, and were spread ratably over 436,000 units. Hmmm – how dangerous do you think one Sarge car would be with 1/218,000th of a can of paint on it? This event was one of the sparks that triggered the mania leading to the CPSIA – the same mania that now sweeps up libraries.”

Brian Micklethwait, a while back, had a further relevant thought about whether the Precautionary Principle has itself been proven safe.

More: An interesting contribution from Dan Marshall at Change.org.

Public domain graphic: Grandma’s Graphics, Ruth Mary Hallock.

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stuffedpatchworkturtleNo, discarding 500 once-loved stuffed animals doesn’t really amount to much of a story amid scenes of billion-dollar disruptions caused by this law elsewhere around the country. But if you’re one of the people who run the Second Fling consignment shop in Goldsboro, N.C., it might still seem kind of sad.

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  • There’s new blogging on the fate of pre-1985 children’s books from book restorer and conservator Javamom, Jane Badger (iBookNet, U.K.), Dillon Hillas, Wellspring Creations, and Small-Leaved Shamrock. Sorry no books todayDeputy Headmistress continues to blog the book angle intensively, as does Valerie Jacobsen (read this post in particular). Note also the comment from Nancy Welliver on her February 11 post: “We are a used curriculum and book seller. We have removed 3,500 books from our website. … until recently publishers did not put printing dates in books, only copyright dates. So a book that is copyrighted 1976 may have been printed in 1988 and therefore legal to sell, So how do we know which are printed before and which after 1985? So we have removed all books for children with copyright date 1985 and before.” There’s also a page at cpsia-central (the Ning group) on books and libraries.
  • The law is also having a major impact on sellers of new children’s books, given that the only newer books presumed safe for legal purposes without testing are completely plain books with no embellishments or non-paper features. Don’t miss the letter at Wellspring Creations from “Jackie”, who identifies herself as the manager of the children’s book section at a Half Price Books store, part of a large chain that sells publisher’s remainders and overstocks as well as used books:

    I have experienced the severity of this issue first-hand. … Initially, it didn’t seem like this would have much of an impact on the kids section, but as I went through my section pulling everything that was potentially harmful, I soon realized that this was going to decimate my section. My display tables were over halfway empty, and there were half-empty or completely empty shelves all throughout the section. … The kids cooking shelf went from being packed full to only having half a dozen books left, all because most of the cookbooks were spiral-bound with metal. …

    The day that I had to get rid of all those books was one of the roughest days I’ve ever had at work. The kids section is my pride and joy, my baby, and I had to not only watch it get torn apart- I had to do it myself. It was heartbreaking.

    The happy ending, if you want to call it that, is that eventually many or most of the new books are likely to return to the shelves after the chain puts them through testing — though it’s more likely to take such a step for a mass-selling branded item piled high on display tables than for a specialty cookbook expected to sell only in the dozens of copies. Go read the whole thing.

  • Community Homestead is a center for developmentally disabled adults in rural Wisconsin that has sold residents’ handcraft toys. Its CPSIA story is here.
  • Dust-ups in comments sections are not my thing, but some people enjoy them, and they keep breaking out on the occasions when someone still attempts an aggressive defense of this bad law. Thus when the Chicago Daily Herald printed a letter from Alexandra Lozanoff of the Illinois Public Interest Research Group (PIRG) yesterday rhapsodizing about the law, numerous commenters jumped in to express rather sharp disagreement. A state legislator in Orangeburg, South Carolina put her name to a piece in the local paper attacking Sen. Jim DeMint for sponsoring CPSIA reform, provoking dozens of comments, most taking issue. The Natural Resources Defense Council, which is invested in defending CPSIA in part because of the law’s phthalates ban, ran an ill-informed piece pretentiously titled “The Artisan Toymaker’s CPSIA Exemption Guide” and was promptly spanked by knowledgeable commenters, a fate that also befell the left-leaning crew at Moms Rising. The lengthy comments section on John Holbo’s thoughtful followup post at Crooked Timber presented the spectacle of one agitated and flailing defender of the law pretty much surrounded by people trying to talk sense into him. Someone adopting the monicker “Civil Justice” wandered into the Etsy forums to push Lawsuit Lobby views and was not met with pleasure by the assembled crafters, an episode which may be related to the one already told about how the misnamed Center for Justice and Democracy, a group with views antipodal to our own, suggested that we all were insensitive to children’s health and then refused to let any letters from critics through moderation, claiming to feel threatened by the letters’ tone (examples of the sorts of letter CJD found too intimidating in tone to run: Mark Riffey, Olivia @ BabyCandyStore). Some other previously linked comments discussions: The Pump Handle (profoundly misguided contributor corrected by Deputy Headmistress, Kathleen Fasanella, etc.), Consumer Reports, Greco Woodcrafting (Public Citizen’s David Arkush vs. the world), and, of course, Justinian Lane.
  • G-O-O-D-B-Y-E B-O-O-K-S

  • Even a casual acquaintance with CPSIA blogging is enough to show that homeschooling parents have taken an extraordinary role in leading the resistance to the law. Bloggers like CalifMom have predicted that the law will have numerous harmful impacts on homeschoolers, and homeschool curriculum suppliers such as Hands and Hearts History Discovery Kits and Hope Chest Legacy have already closed down because of the impracticability of compliance. So it’s unfortunate that the Home School Legal Defense Association (HSLDA) seems to have so little clue what’s going on.

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[Title of post revised to reflect the paper's printing of two more letters in its online (but not physical) edition on Monday.]

When I blasted the New York Times for its wretched editorial on CPSIA Wednesday, Patrick (SSFC/Popehat) made the following prediction:

Those tempted to write the Times to inform its readers about where this editorial gets it wrong will find that, no matter how many letters in opposition are received, the Times will print exactly one. The Times will also print one letter of thanks, from Greg Packer or someone affiliated with PIRG.

It is too early to say whether Patrick’s prediction will come true [see below for update]; the Times did print one short letter today from Nancy Nord of the CPSC, which fits the scheme, but there’s no way of knowing whether it will return to the subject in days to come with a letter supporting its editorial view or additional letters from critics. Before according the Times’ editors any credit for running this one, remember that having called for the removal of a named federal official, they really had to publish a letter from her in response; today’s letter as one would expect is mostly devoted to defending her record while also containing exactly one sentence disputing the Times’ ludicrous and much-derided assertion that fears of harm to small businesses are “needless”.

For the ordinary Times reader who knows little about this issue and is glad to skip to the next item, it will be easy to dismiss a short letter from a Bush appointee seeking to defend her managerial record. What else would you expect a Bush appointee to do? It would be a different matter — something to pause at, maybe ask questions — if a challenge to the Times’ assertions were to appear from wooden toymakers in New England, from apparel crafters in New York City’s garment district, from people who manage thrift and consignment stores, or from someone who deals in used children’s books. But — so far, at least — Times readers have been spared the danger of hearing any such discordant voices.

Update Monday a.m.: the Times online edition, though not the physical paper, runs two more letters today, and in doing so slightly (but only slightly) falsifies Patrick’s cynical prediction. The letter favorable to its own position, and ascribing no fault to the law other than its lack of tougher enforcement, comes not from PIRG but from David Pittle of Consumers Union (better prestige that way). And the Times also prints a mildly critical letter from the Toy Manufacturers of America, a group that 1) endorsed the law as a matter of general principle; 2) is often described in press coverage as closely aligned with giant toymakers who can live with its terms; 3) is cautious if not bland in its objections (“unrealistic”, “unwarranted”, etc.); 4) from its name and niche, reinforces the misimpression that “toys” are mostly what are at stake here, rather than a far wider range of children’s products ranging from books to apparel to minibikes. For all readers can discern from this TMA letter (and we do not, of course, know what the Times chose to condense or cut) the main economic costs of CPSIA might take the form of a quarter of down profits at Mattel or Hasbro. I have more to say in this earlier post about the tendency of CPSIA advocates to designate large and politically cautious industrial concerns as “the other” side for the press to consult, even though their interests and viewpoints may diverge widely from those of the smaller and family firms that dominate much of the children’s product trade. As of Monday, persons whose sole news source is the New York Times (especially the paper version) still have no idea that the law imposes any unusual burdens on this latter group.

Public domain image courtesy Grandma’s Graphics, Anne Anderson.


writelettersallyouplease

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digdeeper

  • For the Handmade Toy Alliance, Jill Chuckas responds to the NYT’s ever-so-clueless CPSIA editorial. The Alliance also recently published a Myth vs. Fact sheet. Among the points addressed: “Myth: Violations of the CPSIA this year will not result in penalties.” “Myth: Further clarification is all that is needed.” and “Myth: Products Tested to European Union Standards will Satisfy New US Standards”. And did you know it’s now unlawful to donate to a charity (let alone sell) a children’s item with paint on it, even if you painted it yourself using lead-free paint, if you haven’t put it out for third-party testing?
  • It’s my impression that beyond the precincts of the “consumer”/Litigation Lobby groups, the bill’s original sponsors on Capitol Hill, and of course the New York Times, it’s getting harder to find all-out boosters of the law who still maintain there’s nothing wrong with it. On Tuesday, however, the Houston Chronicle did publish a perfectly inane editorial taking this view, the refutation of which is left as an exercise to the reader.
  • Deputy Headmistress at Common Room has taken the lead in blogging many angles of the law and her latest must-read examines the legislative history of CPSIA’s enactment, including the roles of Public Citizen, the Consumer Federation of America, PIRG, and Sen. Mark Pryor (D-Ark.), as well as business groups like NAM, the latter of which warned against some of the law’s more extreme provisions as placing various advantages into the hands of plaintiff’s lawyers. This makes a good jumping-off point for further research on whether the ongoing CPSIA calamity should truly be regarded as a case of “unintended consequences” and, if so, unintended by whom. One tidbit among many: she says that Travis Plunkett, testifying for the Consumer Federation of America, spoke in favor of rules (not adopted) under which “all product sellers [would] be required to post bonds sufficient to cover the costs of a recall in advance of any ‘potential’ recalls.” Typical New York Times coverage of the day, by the reliably pro-regulation Stephen Labaton, can be found here.
  • Tom Pearson, Punditry by the Pint:

    I’ve written before how law and regulation can be an insurmountable impediment for the weakest, poorest and most powerless in our society. In this case at least we will partly realize what we’re missing when the great independent thrift and book shops start going under and fewer people make handcrafted clothing and toys for children. Still, we’ll never see what could have been in this small niche of our largely self-created social order. This is how the American dream of hope and opportunity dies, one well-intentioned, but misguided rule at a time.

    Life is a messy and wonderful experience. If you try to hermetically seal life, even children’s lives, from risk, you will kill all that messiness and creativity that makes life worth living. Yes, risk can be damaging, painful and even fatal, but, in this case, the cure is worse than the disease.

    Another libertarian view from J.D. Tuccille in the Examiner: “In the name of the children, we cut the kids off from their own history.”

  • Yesterday (Friday) the Consumer Product Safety Commission published a bundle of letters it received pro and con on proposed exemptions from the lead rules. Plenty of raw material here for CPSIA-watchers (long PDF file);
  • Since many people these days visit Overlawyered for the ongoing coverage on this topic, I’ve added a new display on the rightmost sidebar (under the red teddy-bear-as-St.-Sebastian icon) with sub-category tag links for libraries, apparel and needle trades, toys, and so forth. I’ve populated these categories with old posts somewhat in haste, so if you see omitted posts that aren’t tagged with relevant labels, give me a shout.

Public domain image: Grandma’s Graphics, Ruth Mary Hallock.

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Just as my earlier piece on CPSIA was going to press last Friday at Forbes there came a new development: Reps. Henry Waxman (D-Calif.) and Bobby Rush (D-Ill.), who sponsored the law and have opposed efforts to revisit it, issued a letter that seemed to soften their stance a bit and hold out hope for more exemptions. The magazine asked me to analyze these new developments and the result is up now. Unfortunately, the news is bad: the letter’s suggestions for exemptions are piecemeal, narrow, and much too late. We are still on course for a calamity should the law’s provisions go into effect Feb. 10 and (later round) in August — a calamity that Waxman and other sponsors of the law had every reason to see coming when they passed the bill last year.

In the mean time, as I point out, the Waxman/Rush letter raises the question of whether our leaders on Capitol Hill realize that ordinary children’s books are often bound with metal staples, and that toddlers seldom convey to their mouths such objects as bicycle tires and dartboards. The piece, again, is here (& Matt Bandyk, U.S. News).

More: In comments on an earlier post, kids’ wear entrepreneur Amy Hoffman says the New York Times still has not covered this debacle — a crucial point, since it’s hard to get an issue truly onto the news agenda at other highly ranked media outlets if the Times refuses to notice it (though some are covering the story anyway, as with Bloomberg in a pretty good piece today). There’s something truly crazy here, given that the Times plays a conscious role as a key trend-spotter in both the design world and the apparel trade, as well as the world of law and governance.

In addition, Common Room provides some sorely needed guidance to protesters as to where their CPSIA outrage should be directed: the fact is that Henry Waxman, as chair of House Commerce, is by far the #1 decisionmaker in whether or not this law will be changed. (Next in importance? His counterparts over at the U.S. Senate.) Protests to other House members are significant mostly in creating pressure on Waxman; the ordinary course of business in the House is to leave these matters to the Committee chair, so protesters must hope to get across the message that the ordinary course of business won’t do this time. As for the incoming Obama administration, as Common Room explains, it has few if any ways of intervening directly to prevent a business calamity on Feb. 10 and a further calamity in August; its main power is the power of picking up the phone and jawboning Waxman with the message that he cannot expect cooperation on unrelated things he wants unless he un-bottles up legislation to fix CPSIA. Waxman is also known to listen to the lawyerly pressure groups like Public Citizen and U.S. PIRG, and to Consumers’ Union. My personal view is that while it’s pointless to try to change the minds of these three groups — they will remain utterly in the grip of their ideology or constituency, and unsympathetic to producers — they might be made to see the prudence of urging compromise on Waxman lest national attention to the issue damage their own images.

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In our previous posts about the Consumer Product Safety Improvement Act (CPSIA), the federal law passed by Congress last year in the wake of the panic over Chinese toys with lead paint, we noted that it threatened to drive out of business a lot of small makers of wooden toys and other childrens’ products who cannot afford to spend thousands of dollars per lot to confirm the absence of lead paint (or phthalates, another banned substance) in their wares. A group called Handmade Toy Alliance has formed to call attention to the law’s burden on small manufacturers, and offers further detail at its website.

As reports in the last week make clear, however, a second economic disaster is also looming: thrift and secondhand stores around the country sell a large volume of clothing, toys and other items meant for use by those under 12, and are now exposed to stringent liability under the law. “The reality is that all this stuff will be dumped in the landfill,” predicted Adele Meyer, executive director of the National Association of Resale and Thrift Shops. Among the biggest losers if stores stop selling secondhand kids’ items: poorer parents who would have trouble dressing a growing family if they had to buy, say, winter coats new for $30 rather than used for $5 or $10. The regs are scheduled to take effect Feb. 10.

On January 8, as press coverage mounted, the Consumer Product Safety Commission (CPSC) rushed out a supposed clarification of the regulations: thrift shops, eBay sellers and other second-hand retailers would not be compelled to institute testing programs on all items sold, the way manufacturers would. But the commission made clear that if the stores do wind up selling any secondhand products containing the substances — phthalates, for example, are often found in bendy plastics — they face both criminal liability and civil fines (which run up to $100,000). It isn’t required that the store know or should have known that a pre-2009 item was in violation, and of course it isn’t required that anyone be harmed by the good (the entire episode has gone on with a near-total absence of any showing that actual kids had been harmed by the products swept from American shelves).

None of which seems to faze some advocates of the new measure. At Law and More, Jane Genova quotes Sue Gunderson, executive director of an anti-lead-paint group called ClearCorps:

What thrift stores seem to be requesting [in Gunderson's view] is for the right to expose children to health and safety hazards. “Let’s get our priorities straight,” she insists. She goes on to pose this rhetorical question: “Mmmmmm, do we want cheap, second-hand toys that could damage children?” She frames this issue as a “business” one which the thrift-store industry will have to solve just as will every other business impacted by the new act.

If you think this is all too crazy to actually be happening, wait until you read the Boston Phoenix’s piece on the law’s threat to libraries:

“We are very busy trying to come up with a way to make it not apply to libraries,” said [Emily] Sheketoff [associate executive director of the American Library Association]. But unless she succeeds in lobbying Capitol Hill for an exemption, she believes libraries have two choices under the CPSIA: “Either they take all the children’s books off the shelves,” she says, “or they ban children from the library.”

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Toyless Yule, cont’d

by Walter Olson on January 2, 2009

About two weeks ago SSFN posted an item on the threat to independent toymakers of a new law passed by Congress in response to the lead-paint-on-Chinese-toys panic. A day or two later the Washington Post covered the issue and the story has been spreading to other media. Maybe the next Congress, though not exactly business-friendly in many other ways, will act before any general wipeout of the economy’s handcrafted-toy sector.

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The Consumer Product Safety Act of 2008, sponsored by Illinois Congressman Bobby Rush and quickly signed into law by President Bush, soon goes into effect.  Sold as a measure to protect children from the perils of Chinese and other foreign-made toys which may contain lead paint, the law was written with good intentions. Unfortunately, good intentions sometimes produce bad consequences.  While this law may never save a child, it will certainly have consequences for small businesses which produce toys, as well as other products intended primarily for children under 12.

As always, the devil is in the details, and Publius Endures has given the details careful scrutiny.  Among other little details, this law may require toy manufacturers and importers to perform costly outside testing, at a cost of over $4000, on each lot of toys shipped.  If the law is so interpreted by the people who draft its enabling regulations, that will simply put small manufacturers out of business, leaving the American toy market to giants such as Mattel or driving more of the business to overseas competitors who produce on a larger scale and can absorb the cost.  The result, probably not intended at all by lawmakers, may be monopoly or oligopoly in the American toy market, accomplished through regulation rather than market forces.

For more on this example of unintended consequences of hasty lawmaking in response to a panic, see Upturned Earth, which suggests that congress or regulators might be persuaded to amend or sensibly interpret the law, if only they understood what a potential monster they’ve created.

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