Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSIA and resale’

CPSIA and vintage books

As readers are aware, the Consumer Product Safety Commission yesterday advised thrift stores and other resellers and distributors of used goods to discard (unless they wished to test for lead or take other typically unpractical steps such as contacting manufacturers) children’s books printed before 1985 and a very wide range of other children’s products, including apparel and playthings.
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According to a commenter at a very busy Etsy thread on the subject, stores are already beginning to act on this advice:

I just came back from my local thrift store with tears in my eyes! I watched as boxes and boxes of children’s books were thrown into the garbage! Today was the deadline and I just can’t believe it! Every book they had on the shelves prior to 1985 was destroyed! I managed to grab a 1967 edition of “The Outsiders” from the top of the box, but so many!

People who deal more systematically in children’s books for a livelihood now face unpleasant choices. From our comments section, Valerie Jacobsen:

We own a small, local used bookstore and have been selling used books on the Internet since 1995.

Last year we shipped over 4500 used books to nearly 50 countries. (Note that CPSIA not only regulates distribution and sale but export as well.)

Our bookstore is the sole means of income for our family, and we currently have over 7000 books catalogued. In our children’s department, 35% of our picture books and 65% of our chapter books were printed before 1985.

Many of our older children’s books have painted decorative titles and other cover embellishment, which decoration is an extremely small quantity and which may or may not contain over 600 ppm lead. (The limits for each accessible part or paint layer are going to 300 ppm in August and 100 ppm in 2011.)

We have read the legislation, called our representative, called our senator, contacted the CPSC (no answer), read all of the CPSC press releases, and contacted a lawyer. We still honestly have no idea what is legal to sell, but we cannot simply discard a wealth of our culture’s nineteenth and twentieth children’s literature over this.

And from the same commenter today, following up after the CPSC’s issuance of guidance to small businesses last night:

I wasn’t thrilled with the exception stating that we can sell pre-1985 children’s books as long as they are pricey vintage collectibles for adult collectors. Um, great, but most of our children’s books, even our older children’s books, are sold for children to read. And read them, they do.

We ran an audit in our bookstore today. We have about 7000 books catalogued. Of our children’s chapter books, about 65% are pre-1985. Of our children’s picture books, about 35% are pre-1985. Most of these sell for under $10 and are stocked as children’s reading.

As an ethical matter, I really can’t discard our cultural heritage just because the CPSC has decreed that books published through *1984* may or may not still form a legal part of the canon of children’s literature for our culture.

I was willing to resist the censorship of 1984 and the Fire Department of Fahrenheit 451 long before I became a bookseller, so I’d love to run a black market in quality children’s books–but at the same time it’s not like the CPSC has never destroyed a small, harmless company before. It’s a scary thing to know that what you are doing is a positive good for the community–and yet possibly, strangely illegal.

Also, I am comforted by no promises from Nord and Moore that are not clear consequences of CPSIA itself. The membership of the commission will probably be changed this year, and if Waxman gets much input into the new membership, we could end up with five first rate cuckoos.

To which commenter Carol Baicker-McKee responds:

Valerie, please, for the sake of children and history hang onto your books! I kept thinking this law would go away, but now I’m worried that an important part of our heritage is genuinely threatened. Many, many children’s books printed before 1985 are now out of print and do not exist still in a form that would make them easy to republish (printing plates are usually destroyed when a book goes out of print and older books did not have electronic versions). Many books, though of enduring value to children and social scientists, may not exist in conditions or simply don’t fall into categories that make them appealing to collectors, the one group besides packrats that I guess is still allowed to own them. Although organizations like the Gutenberg Project have been working to scan and preserve many older children’s books in electronic form, they can only target books that are no longer copyright protected, a very small portion of the children’s books printed since 1985.

If nothing happens to change this law soon, I promise I will spend whatever money and devote whatever space I can to buying up these older books. I’ll be happy to label myself a collector (and I’m subversive enough to leave the books lying around where kids might “accidentally” read them).

A “relabel everything as collectible” strategy is, however, of limited legal help to retailers, because the law provides that they 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 at Common Room, who has been a key CPSIA blogger, deals in second-hand books and has now pulled many of her listings off Amazon; she has a big roundup as well as this. She also points out, citing testing done by Jennifer Taggart, that color illustrations in some old children’s books do flunk the new and stringent rules set by CPSIA for lead content; this does not necessarily mean they pose any hazard to actual children, provided the children use the books for reading and visual enjoyment rather than as something to chew, lick, or devour holes through, Very-Hungry-Caterpillar style. There continues to be an extreme shortage (as in: zero) of cited instances of children in this country being in fact poisoned by the lead in old book illustrations.

Design Loft carefully examines some of the implications for libraries, fiscal and otherwise, of trying to CPSIA-proof pre-1985 holdings. For weeks now librarian and bookseller groups have been sounding the alarm about the law’s coverage of books: Library Journal, Publisher’s Weekly and earlier, and ZRecommends, the American Library Association and more (PDF), Rick Woldenberg. Perhaps this activism helped stimulate the CPSC’s “post-1985 = relatively safe” guidance, but that guidance has only served to underscore the corresponding message of “pre-1985 = not legally safe”.

More: Mark Riffey, Iain Murray, CEI “Open Market”. And the American Library Association, contrary to what was heard earlier, is now taking the position that the law does not apply to libraries unless it hears otherwise. I think at this point if I were them I would take that position too, wouldn’t you?

More: Reactions from Houston criminal defense blogger Mark Bennett at Defending People and again at Blawg Review #199, Carter Wood at NAM ShopFloor and again, David Foster at Chicago Boyz, Der Schweizer Narr (from Switzerland, in German), The Anchoress, Todd Seavey, Open Your Ears and Eyes, Blackadder’s Lair, John Holbo/Crooked Timber, 5 Kids and a Dog, International House of Bacon (CPSIA “the single worst piece of regulation in my lifetime”), Vivian Zabel/Brain Cells and Bubble Wrap, She’s Right, Joey and Aleethea, Dewey’s Treehouse, Sherry/Semicolon Blog, and Classic Housewife.

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CPSIA chronicles, February 10

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Major provisions of the Consumer Product Safety Improvement Act take effect today, and last night the responsible federal agency, the Consumer Product Safety Commission, released a 13-page set of guidelines (PDF, updated link) for manufacturers and resellers, who thus enjoyed a generous few hours in which to review its myriad of bewildering details before opening for business on Tuesday and risking fines and prison terms under the law.

In general, the rules appear to hold little that is surprising or new, and thus serve to confirm that the law will prove a disaster unless quickly revisited and reformed by the U.S. Congress. To take just one example, that of resale, thrift and consignment stores, the CPSC guidance advises that such stores discard, or refuse to accept donations of, a very wide range of children’s items unless they are willing to test the items for lead or call their original manufacturer — neither of which steps is consistent with the economics of an ordinary small thrift store. Included in the suspect list are most children’s clothing (because most of it has snaps, buttons, zippers, grommets or other closures with unknown/unproved metal or plastic content), most books that were printed before 1985 or that (even if more recent) include metal or plastic elements such as staples* or spiral binders; most playthings (dolls, balls, trains, toy cars, etc.), most shoes and hair ornaments, most sporting goods, outdoor play items and wagons, board games when including any plastic spinners, tokens or other items, all bicycles and tricycles in kids’ sizes, most decorations for kids’ rooms, nearly everything with metal or synthetic applique, most school, art and science supplies, and on and on. A much diminished assortment of t-shirts, pullover sweaters, slip-on canvas shoes, unpainted/untreated wood blocks, post-1985 glued-spine books and a few like items might remain on the shelves, but for the most part, it now seems clear, the U.S. Congress in its wisdom has decided to banish the business of kids’ resale to the realm of outlawry, even when carried on by non-profits with unpaid volunteers.

I’ll have more later in the day. In the mean time, let me mention that Forbes.com has now published, in altered form, my 50-state survey of business distress, legal irrationality, and protest arising from CPSIA, which had earlier appeared here (on Sunday) as a blog post. Go check it out now!

*Although the 13-page guidance booklet itself is silent on the subject of staples, note the footnote to section 5 in the separate guidance on lead limits: “The term ‘ordinary book’ in this context means one that is published on cardboard or paper printed by conventional methods and intended to be read. It excludes children’s books that have plastic, metal or electronic parts.”

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CPSIA: fifty stars and an asterisk

Fifty glimpses of the law and its impact, plus one at the end for D.C:

Hawaii: Kailua doll shop closes despite CPSC enforcement stay (w/video); Honolulu Honey Baby shakes leis and hula skirts in dismay;
Alaska: “Why you should care about CPSIA, and what you can do about it”.
Washington: Don’t miss this helmet anecdote from Whitman County;
Oregon: Milagros Boutique of Portland: “One of our local vendors has decided to throw in the towel rather than wait and see if the CPSIA is amended.”
California: Thanks to stay, Whimsical Walney will close down only temporarily, not permanently;
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Utah: “We will have to lock our doors and file for bankruptcy,” said Shauna Sloan, founder of Utah-based children’s resale chain Kid to Kid. Glory Quilts: “My longest blog post ever — and the most angry“;

Colorado: Emily Werner: “Today, I have diaper making to do. But I also am ready to stuff envelopes“;
Idaho: Squares of Flair, from Eagle, is on the Endangered Whimsy list. And if you’re thinking of making something bulky for children, like a furniture line, have you considered that none of the nation’s lead testing labs are anywhere near Idaho?
Nevada: Let’s hope Sen. Harry Reid is listening to constituent Molly Orr;

Wyoming: For Kooky Dolls it’s a distinctly non-kooky issue;
Montana: Mark Riffey’s Business is Personal (Rescue Marketing) has helped focus blog attention;
Arizona: “No way” Other Mothers resale stores “can be completely compliant”;
New Mexico: Fashion Incubator and National Bankruptcy Day;

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Oklahoma: Farewell jingle dresses, powwow dance clothes, buckskin leggings, concho belts and other Native American celebratory kids’ gear;
Texas: Distress sale at My Pink Zebra Boutique in Katy;
Kansas: Owner of Baxter Springs company that makes organic nursing pillows doesn’t think threat of being “hauled off to prison” is very constructive;
Nebraska: Omaha-connected Baby Leather Moks is on Endangered Whimsy list;
North Dakota: Sunrise Hill Decor, making blocks for play or display, is member of the Handmade Toy Alliance;
South Dakota: Question after our own heart: what would Laura Ingalls Wilder have thought of this law?

Iowa: I may know there are no phthalates or lead in that whimsical chenille baby bib, and you may know it, but have you documented it to the satisfaction of the wary retailer’s lawyers?
Minnesota: Things seem to be going great, with your product line featured on the Martha Stewart show. And then this happens (auto-plays video);
Missouri: Fleece scarves, going too cheap;
Illinois: List-keeping in Naperville. Oprah, please help!
Wisconsin: Owner of Jacobsen Books in Clinton is also worried about small-run adaptive devices used by special needs children;
Indiana: Rebecca Holloway gives ’em a deserved slamming; doll outfits and hair bows;

Ohio: Nicer-than-mass-produced diaper covers; Toledo Physical Education Supply takes a hit;
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Michigan: Brandi Pahl wonders: What are they thinking?; NARTS efforts couldn’t save Ionia resale store;
Arkansas: Closing of A Kidd’s Dream consignment shop in Conway doesn’t seem to have done much to change Sen. Mark Pryor’s mind;
Louisiana: The stay: “Hope but no solution“, kids’ Mardi Gras masks;
Mississippi: Sen. Roger Wicker is co-sponsoring DeMint reform bill;
Alabama: About that stay: “Read the fine print“; at least the pink whale got adopted;
Florida: “Many stores have fallen for the false report from the media that consignment stores are exempt.”
Georgia: Thank you, 11 Alive News, for listening to consignment sellers;

Tennessee: eBay seamstresses and Spanish baby gift sellers watching with concern;
South Carolina: Rock and mineral kits: do not eat contents unless you are at least 12 years of age;
North Carolina: Quilt Baby appeals to reason;
Kentucky: Menace of soft texture block set probably overrated;

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Maine: Any reform will come too late for Farmington’s Blessed Baby Boutique, shut down last weekend;
New Hampshire: As Commerce Secretary, d’you think Sen. Gregg could help?
Massachusetts: Rob Wilson of Ashland, importer of earth-friendly toys, has done much to spread the word, and impact on libraries noted in Newburyport;
Vermont: “Somewhere in the neighborhood of 95 percent of the merchants on our site would have to shut down,” says Michael Secore of Craftsbury Kids, with co-owner Cecilia Leibovitz a major spreader of word about the law, ditto Barre’s Polkadot Patch;
Rhode Island: Sens. Sheldon Whitehouse and Jack Reed “don’t seem terribly concerned“.
Connecticut: Stamford maker faces $400 testing bill for each $360 run of bibs and napkins, while paperback exchange owner in Bethel terms application of law “insane“;

New York: Issue has captured attention of book publishers, if not of certain newspaper publishers;
New Jersey: You made play food for kids out of felt? No wonder Rep. Waxman is so worried they’ll eat it!
Delaware: Wilmington store Yo-Yo Joe’s is a member of the Handmade Toy Alliance;
Pennsylvania: Going out on a limb, Somerset librarian contends most kids are old enough to know not to put the books in their mouths;
Maryland: The Baltimore Etsy Street Team is on the wing;
West Virginia: Project Linus, which does great charity work in the donation of quilts and blankets, puts on a brave face but its friends are worried;

Virginia: Back away from that ribbon hair bow slowly, now, and we’ll just wait for the hazmat team to arrive;

*District of Columbia: Almost forgot Washington, D.C.! Well, in Washington, D.C., it’s easy to get them to pay attention to problems like these. For example, less than a month ago, the offices of Reps. Henry Waxman and Bobby Rush were instructing colleagues that if they get calls from constituents “who believe they may be adversely impacted by the new law,” it was because the constituents had fallen victim to “confusion” and “inaccurate reporting”. The most important advocacy group behind the law, the implacable Public Citizen, has launched a new campaign to defend it from critics; it was PC’s David Arkush who in December notoriously assailed (scroll to #1) “hysteria” about the law on the part of crafters and small businesses, broadly hinting that they were serving as dupes and stooges of Big Toy interests — perish the thought that they might have figured the issue out on their own! Trial-lawyer-defense groups like the misnamed Center for Justice and Democracy (along with their friends) chimed in with the thought that critics of the law needed to “grow up” (no, don’t bother commenting). CPSC Commissioner Thomas Moore, hewing to a similar line, blames the ongoing ruckus on “orchestrated campaigns to undermine the Act” that “are sowing the seeds of confusion that are upsetting so many small businesses.” Lobbyists and trade associations for mass-production importers and merchandisers are eager to prove their cooperation with the powers that be: “We were early proponents of mandatory laws to require toy testing,” said a Toy Industry Association spokesman the other day.

Washington, D.C. always does so well at listening to the rest of the country.

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CPSIA: What will be enforced?


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.

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CPSIA: The children’s product safety “crisis” that wasn’t

Rick Woldenberg has been looking into it:

It’s certainly true that children have been checking books out of libraries for many, many years with only paper cuts to show for their reckless behavior. And thrift stores have sold children’s clothing and strollers for years without incident, but apparently no one knew the “dangers” that lurked within. Indeed, all of these items have been considered safe until February 10, when magically they will become unsafe unless proven otherwise.

According to reports from the field, zippers and snaps on kids’ garments are among the components most likely to flunk the new CPSIA standards. In all probability, millions of existing, already sold garments would flunk for similar reasons. Yet have CPSIA advocates pointed to even a single instance in which an American child has been poisoned by garment zippers or snaps? Could this be because kids do not as a rule detach and eat zippers and snaps? “Why aren’t we seeing many claims of injury from all the dangerous children’s products still legally available in the market?” Woldenberg asks. “Shouldn’t we be seeing outrageous injury statistics right now, currently”?

To put it differently, advocates seem to have taken a few genuine instances of injury from distinctive, atypical products (lead jewelry, powerful ball magnets) and used them to manufacture an imaginary crisis in the safety of children’s products generally. But there was never any general crisis of children’s product safety.

Following up, as part of a more general critique of CPSIA advocates’ misrepresentations — which should be read in its entirety, as it makes many other valuable points — Woldenberg analyzes the purportedly alarming data on product recalls involving children (Excel spreadsheet). Separately, Wacky Hermit has been looking at the recall figures as well. She concludes:

Of the 63 recalls that would have been prevented by CPSIA, only 1 resulted in an injury (a child ingested lead paint from a crib and had elevated blood levels of lead). This means that had CPSIA been in place for 2008, one child would have been helped.*

If we’re going to extrapolate one or a handful of injuries into a supposed national crisis, we might as well deduce a “children’s bathing crisis” from a bathtub drowning, a “children’s kitchen crisis” from a stovetop scalding or a “children’s transportation crisis” from a highway smashup. Common Room has a wrap-up which also should be read in full:

the majority of recalls (by an astronomical number) are not because a item has actually harmed anybody, but because the CPSC or the company determine that perhaps a particular item might possibly harm a child- and, while it flies against our intuitive, emotional reaction to the news that an item has lead, not all lead products are the same. The lead in a kid’s mini-bike tire valve is not as dangerous as the lead in paint on a toddler’s block. … The CPSIA treats real, imagined, and nonexistent threats exactly the same, and that is not sound policy.

*More: Jennifer Taggart writes to say that looking at past recalls does not make it possible to assess the law’s full effect since most items covered by CPSIA had not been subject to federal regulation (except under general catchall provisions). So the generalization quoted above should probably have included some limiting language to that effect.

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CPSIA, board games and hobby gaming

Trask at Living Dice explains; more here and here. And in response to a comment:

The “it does not apply to hobby games because they are for older people” probably will not fly. I cannot imagine the government will let industry decide what game is for over 12 year old players. If they did that even “Chutes and Ladders” will become “for 12 and older” to save on the testing. Well, that may be an exaggeration, but you get the idea. No, I think the books and games that are playable by early teens will probably get scooped up in this definition as well. Sadly, that covers most hobby games.

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CPSIA Blog Day #4: Groups that should care


There’s at least one “generic” blog post on CPSIA that has been freely distributed for crafters and other bloggers to use today (example: Chichiboulie). It’s a good one, dividing the topic along the lines of the various groups that each have a lot to lose if the law goes into effect as planned Feb. 10:

  • To the Parents of Young Students:
  • To the Avid Reader:
  • To the Lover of All Things Handmade:
  • To the Environmentalist:
  • To the Second-Hand Shopper:
  • To the Entrepreneur:
  • To the Antique Toy Collector:

Do you fall into any of these categories? Many people I know fall into at least half of them. It’s hard to imagine the law’s diehard defenders at places like Consumer Reports, The Pump Handle, and the trial-lawyer-defense Center for Justice and Democracy don’t fall into any. (Graphic credit: Hasenpfeffer).

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CPSIA Blog Day #1: Past CPSIA bloggers

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Among the bloggers who’ve done excellent posts on the Consumer Product Safety Improvement Act, but who don’t primarily blog on this or nearby topics, are BeliefNet’s Rod Dreher (who was onto the thrift store angle very early), John Schwenkler of Upturned Earth, Mark Thompson @ Publius Endures, economist Tyler Cowen at Marginal Revolution, Advice Goddess columnist Amy Alkon, Iain Murray at CEI “Open Market”, Jeff Nolan at Venture Chronicles, Patrick @ Popehat, Eve Tushnet (scroll a lot to Jan. 15), and leading education blogger Joanne Jacobs.

Do all of them know that today is CPSIA Blog Day, in which hundreds of bloggers will be calling attention to the law’s terrible effects? I hope so, because it would be great to hear their voices again as part of today’s chorus.

P.S. Great response! Posts from Amy Alkon at Advice Goddess, Patrick at Popehat, John Schwenkler, Mark Thompson at the wonderfully named League of Ordinary Gentlemen, and Eve Tushnet at Ladyblog.

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CPSIA, continued

On Friday there was a noteworthy development on CPSIA: Reps. Henry Waxman (D-Calif.) and Bobby Rush (D-Ill.) and Sens. Mark Pryor (D-Ark.) and John D. Rockefeller IV (D-W.Va.) sent a letter to Nancy Nord, chairman of the Consumer Product Safety Commission, endorsing some softenings in the law’s regulatory interpretation, which seems to represent a modest shift (if not an admitted one) from their earlier position. At the same time, Waxman, Rush et al held the line against any demand to revise the law itself, despite the outcry being heard from small producers, retailers and secondhand sellers across the country (more: my recent Forbes piece, some reactions).

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On the same day they sponsored a closed-door briefing for Hill staffers which was billed as correcting supposed misreporting and confusion about the law and its onerousness. Such briefings are common when members’ offices are being hit by a torrent of constituent inquiries and want to know how to respond.

An editor at a large publication has asked me to write something about these new developments, so I’ll be working on that piece over the next day or two. In the mean time, let me recommend as a good place to start two excellent blog posts by Rick Woldenberg of Learning Resources Inc. (first, second).

The first post responds to the apparent new strategy of Waxman and Co. of proposing to exempt a couple of categories of generally safe products (ordinary children’s books, fabric-only garments with no plastic or metal fasteners) in the apparent hope that 1) Congress will look like it’s reasonable and “trying to do something”; 2) a few of the more visible (and politically salient) critics of CPSIA will be placated, at least for the moment. (One might add a third objective, whether consciously formulated or not: running the clock until Feb. 10 in the expectation that many of those protesting will at that point be out of the game — no longer in the kids’ product business — and so in less of a position to cause them political mischief.)
Read On…

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CPSIA: furor builds over toyless shelves

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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