To cap a week of bewilderingly rapid developments, the Consumer Product Safety Commission yesterday announced new guidelines somewhat widening the scope of products that it will consider presumptively lawful to sell (unless a merchant is actually on notice that they contain hazards) when the law’s major provisions take effect three days from now, on Tuesday, Feb. 10. From a quick once-over — and all this is subject to correction by lawyers expert in the matter — the new guidelines appear most useful for the children’s publishing business and for makers of children’s garments and electronics, although fraught with difficult problems even for them; they do little to help many other businesses and small manufacturers affected by the law, and are most ominous as regards two major constituencies affected by the act, resale stores and public libraries.

First, a bit of background. In a February 4 post, “The Blame Game“, Rick Woldenberg has laid out the “noose-like” tightness with which the drafters of the CPSIA sought to prevent the CPSC from granting exemptions from the standards; they also provided that liability under the law would not be suspended just because a request for exemption was under consideration. In short, the CPSIA is purposely drafted to place many advantages in the hands of consumer groups or other litigants who might wish to challenge an exemption in court. Since the CPSC cannot be sure of having the last word — its attempt to carve out an exemption for pre-Feb. 10 phthalate inventories was just struck down — it would be incautious for producers or retailers to rely overmuch on its policy pronouncements, especially since, while it obviously has some discretion over its own enforcement efforts, it cannot prevent others (like state attorneys general) from bringing their own actions. One of those state AGs, Richard Blumenthal of Connecticut, just issued a press release crowing over the consumer groups’ phthalate victory and warning retailers, thrift stores presumably included, that “My office will take whatever steps are necessary [emphasis added] to ensure this phthalate ban is enforced.” (Note that while the phthalate ban was often argued for on the basis of the “precautionary principle” — even if no actual harm to humans has been proved, shouldn’t we alter the formulas for making the items to be safe rather than sorry? — Blumenthal & co. now seek to redefine millions of existing playthings in American homes as “toxic toys”.) It should be noted that private activist and lawyer groups often shop potential cases to state AGs’ offices, and in turn are made monetary beneficiaries of resulting fines and settlements (more on California’s CEH here).

In any event, the CPSC now edges into daring and legally uncharted territory by declaring that it will presumptively excuse not just untreated beige cotton, wool and other materials, but also dyed fabrics, as well as certain innocuous varieties of trim. This is of help to garment makers, who will still of course face possible legal exposure on their plastic buttons, metal snaps, and other nonfabric components. Electronics makers will benefit because the commission will adopt a more lenient view of when components are inaccessible, that is, not reachable by a child even after an effort to smash and break the object. Certain metals and alloys known not to contain lead will also be listed as presumptively safe. Finally, “ordinary” children’s books (it is not clear whether books with staples qualify) will be presumptively lawful if published since 1985.

Published since when?

That’s right, since 1985. It seems before that year some books were printed with lead-containing inks. None of the discussion I’ve seen of the issue seems to report that any American child has ever been injured by eating the ink in books. But the implication is pretty clear for books published before 1985: unless you’d care to put them through testing, title by title and edition by edition, it’s now legally safer to throw ’em out. One might propose vast bonfires in public squares, if not for the fear of violating air quality regulations.

It is not unusual for small independent booksellers to have in inventory still-unsold books of pre-1985 vintage. Perhaps these can be saved from landfills through the use of stickers reading, “Sold as a collectible only — under no account to be used by persons under 12”, as sellers of, say, vintage plastic dolls may do. But that doesn’t solve the problem for libraries. Their holdings include millions of pre-1985 children’s books, and if they stock them in children’s sections and allow them to be checked out at children’s request, they can’t very well play the “adult collectible” card. Beyond that, book sales are a major source of financial support for libraries, and inevitably include many of those ultra-terrifying, handle-with-lab-gloves pre-1985 children’s books.

Finally, thrift and resale stores remain in an unenviable position. Relatively few of the children’s goods they sell are composed entirely of materials on the hastily-assembled safe list. Most of the garments have snaps, zippers or plastic buttons; most of the sports items, board games and action toys have metal, vinyl or plastic components that might possibly (even if they probably do not) contain some admixture of lead or phthalates; who knows whether the jigsaw puzzles or spiral-bound art pads were printed before 1985, or, for that matter, would count as a “book”? Don’t even ask about bikes, trikes, strollers, car seats, backpacks, or things with rhinestones. And now you’ve got Richard Blumenthal and his allies vowing to “take whatever steps are necessary” — armed with those $100,000 penalties and those jail terms — against anyone who sells or resells items that a short time ago were a normal and, so far as anyone has been able to prove, harmless part of childhood.

Further discussion from Common Room (with particular attention to pre-1985 books: “I think the CPSC just turned my library into contraband. Or something.”) and Ian at Musings of a Catholic Bookstore. Rumor has it that CPSC will issue further guidance on thrift stores and resellers on or before Tuesday, but as Common Room cautions, “There’s a Difference Between a Policy and a Law“.

P.S. Note, incidentally, that the phthalate ban applies to a different (and generally narrower) range of products than does the lead ban: in particular, playthings and child care items. Peas and Bananas has reprinted the details (& welcome Publisher’s Weekly readers).

Public domain image: Grandma’s Graphics, Mabel Betsy Hill.

Filed under: CPSIA, CPSIA and apparel/needle trades, CPSIA and books, CPSIA and libraries, CPSIA and resale, Richard Blumenthal