Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSIA’

CPSIA: “We are sorry to report…”

Fewer options for kids in Santa Rosa, California:

We are sorry to report that Eleven 11 Kids has been forced to close its doors as of February 10, 2009 due to the new federal children’s environmental law, CPSIA, (HR4040) that went into effect on 2/10/09.

And then the store explains in some detail why it felt it had to close. It is too polite, perhaps, to mention that both California senators, Barbara Boxer and Dianne Feinstein, played prominent roles in getting CPSIA passed, with Boxer in particular pushing the retroactive phthalates ban that has been notably harmful to resellers.

Plowed under

At ShopFloor, Carter Wood writes that the Senate version of the bill was (even) more extreme in its provisions than the House version, and that the Senate version unfortunately “wound up playing a bigger role in the writing of the final bill”. The Hospice of Amador and Calaveras Thrift Store, in California’s Sierra Nevada, is still operating but has stopped carrying children’s items.

In Ellensburg, Washington, north of Yakima, Cheryl Smith was “living the American dream” with her store Hailina’s Closet, which “opened last April and [sold] gently used children’s clothing and toys.” But it is just a memory now. The Kitsap Sun reported that Perfect Circle, a Bremerton children’s consignment store, also had to go out of business.

A few more reports from Goodwill: Roanoke, Virginia, Le Mars, Iowa (rare good news, some items being put back on shelves), Rock County, Wisconsin.

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CPSIA: “Children’s books have limited useful life (approx 20 years)”

whenmonstrisbornCarol Baicker-McKee is stunned to find that line appearing as part of a slide presentation for staff of the Consumer Product Safety Commission (CPSC) on enforcement of CPSIA (for those just catching up, CPSC’s guidelines last month recommend that resellers discard pre-1985 kids’ books unless the books are put through expensive testing.) It has her “ready to move to Australia. Or, better yet, ready to make Congress move to Australia and let the country start fresh.” Read the whole thing. More: Esther at Reader’s Loft.

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CPSIA and children’s jewelry

Metal jewelry is among the relatively few children’s products that presents a risk of lead ingestion to children not approximating zero, so it’s not especially surprising that it is treated with special stringency under the Consumer Product Safety Improvement Act. As CPSC’s guidelines explain, metal children’s jewelry becomes subject to testing and certification requirements on the 20th of this month (its makers do not benefit from the one-year stay) and items with even the tiniest dab of paint are subjected to additional requirements, including a separate testing/certification requirement that is already in effect. Since the law went into effect lead content has been limited to 600 parts per million in both jewelry and paint, and on August 14 the threshold for paint content will drop to 90 per million. Lead in its natural state has in many eras been a popular constituent of jewelry because of the metal’s soft and easily worked consistency. It is also a constituent element of all true crystal and many or most rhinestones — although there is much evidence that it is poses far less hazard to health in those forms because it tends to remain chemically bound into the crystal structure rather than leaching or dissolving out if chewed or ingested.

jewelbox

Given the stringency of its testing requirements and its unfriendliness toward component certification, CPSIA is not surprisingly causing serious economic difficulties in the children’s jewelry business, not excluding makers who have never used materials or components containing lead but must shoulder the extensive cost of testing anyway. HABA, the much-admired German toy company, has already announced the departure of its jewelry line from the U.S. market:

Due to the new CPSIA laws we have made the voluntary financial decision to no longer have the jewelry section in our catalog. The 2009 catalog will not include the jewelry. This does NOT mean that our current jewelry does not meet the ASTM requirements. Our overall jewelry sales are a very small percent of our business and the cost to test these items would outweigh the margins to sell the products.

Rhode Island is the historic center of costume jewelry making in America, and the Providence Business News reported recently on the plight of some of its makers. Keith Barber, partner in Rainbow Sales Inc. in Cranston,

said he has been following this issue for at least five years, since California adopted a strict law banning lead in children’s products. The California law became the model for the federal version, and Barber noted that California included an exclusion for rhinestones and crystals. California, he said, “took the time and did it right.”

Alan R. Green, owner and operator of Argo Products in Johnston, like Barber has thousands of dollars now tied up in unsalable rhinestone items, and believes that plastic substitutions will not be as broadly appealing to customers.

Green says that he could live with going out of business if he were a lousy businessman or as a result of the weak economy. “But to lose my business because of an ill-conceived federal regulation that is completely divorced from reality, that’s really going to hurt,” said Green.

The Fashion Jewelry Trade Association (FJTA), based in North Kingstown, R.I., “represents about 2,500 costume jewelry makers worldwide,” the article says. Its president, Michael Gale,

said his organization several weeks ago submitted a 37-page petition to the CPSC, formally requesting an exclusion for crystal, rhinestone and glass, complete with scientific evidence and a risk-assessment study in what he called a “very elaborate presentation.” … No response has been received yet, Gale said.

In the period leading up to CPSIA’s passage, the most publicized death — even, by some accounts, the only death — of an American child relating to an item regulated by CPSIA was that of 4-year-old Jarnell Brown of Minneapolis, who per the Star-Tribune “died from swallowing a heart-shaped charm made almost entirely of lead” in a charm bracelet that came free with Reebok sneakers bought by his mother; Reebok paid a $1 million fine. Minnesota Sen. Amy Klobuchar cited the case in campaigning for some of the law’s most stringent provisions. It can be hard to get a clear account of what happened in the Brown poisoning, and Michael Shaw has tried to track down “numerous inconsistencies in the reporting of this entire tragic business, including the health of the child before this incident, how he obtained the bracelet, and how a child with supposedly no history of ingesting foreign objects did so.” childmermaidAs far as the case for CPSIA goes, it bears repeating that the federal laws already in effect made it punishable for Reebok to distribute the merchandise in question — hence the record-setting fine (as well as other consequences to that company). The main point of CPSIA was to clamp a draconian regulatory regime on products that, unlike the heart charm, weren’t a risk for poisoning anyone. More commentary on the Jarnell Brown case: Deputy Headmistress, scroll also to comments; Kathleen Fasanella, scroll to third example in her response; Valerie Jacobsen in comments at League of Ordinary Gentlemen. On the adequacy of CPSC’s legal authority to address lead in jewelry under previous law, see also Rick Woldenberg/Little Ida.

Children’s jewelry is also produced by many beaders, crafters and other small enterprises for sale at local arts fairs, Etsy, and so forth.* The outcry on CPSIA from small producers, dealers and distributors includes, to pick a sampling, Fairy Tale Jewels, Angie Vinez, Birds and the Beads (“Even if the components have all been certified (such as TierraCast pewter), the CPSIA law still requires that the final product be tested regardless.”), My Aphrodite, Rings and Things, My Charmed Life, and Michon Jewelry.

In the coming days (per the article) CPSIA is expected to be a major topic of discussion at the annual exhibition of another jewelry trade group, the Providence-based (and fine-jewelry-oriented) Manufacturing Jewelers & Suppliers of America (MJSA), which holds its MJSA Expo at New York’s Javits Center from Sunday Mar. 8 through Tuesday, Mar. 10. Certain newspapers that have dismissed concerns about CPSIA’s effect on small businesses as “needless fears” could even send a reporter to that expo if they wanted — it’s only a few blocks’ stroll.

* Lab testing costs are likely to mount into the many thousands of dollars for many kitchen-table and cottage-industry makers, especially if they use many colors of bead or paint and produce multiple or customized styles.

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CPSIA hits Martha’s Vineyard

When you live on an island, resale can be a lifeline:

At a time when the crumbling national economy is forcing many Vineyard families to seek bargains on kids’ clothing, toys and games, both Island thrift stores have been forced to throw away nearly their entire inventory of children’s items due to a new federal law designed to protect children from lead products. …the second-hand stores in Tisbury and Edgartown this week cleared their stores of children’s merchandise in dismay. …

lesliebrookebarnyard

Both the Martha’s Vineyard Second Hand Store in Edgartown, run by the Island chapter of the Boys’ and Girls’ Club, and the Thrift Shop in Vineyard Haven, run by the Martha’s Vineyard Community Services, have been forced to throw away hundreds or perhaps thousands of children’s items with potentially lead-carrying zippers, buttons, painted fabrics or decals.

“We had to clear out the toys, the kids’ clothing, the dolls . . . everything had to go,” said Dolly Campbell, assistant manager of the Vineyard Haven Thrift Shop, painting a scene straight out of Dr. Seuss’s How the Grinch Stole Christmas. “I understand why they passed the law, but they didn’t think it out very well. Now we don’t have any toys or children’s clothing for families in need. What kind of sense does that make?”

The director of the Edgartown store is aware of the law’s restraints on giving away inventory that cannot be sold, but confides that she quietly let people know the things were out in the trash just in case they might want to take it when she wasn’t looking.

“What’s next? Will we no longer be able to say hello to our neighbors? Does this law make the world a better place? I don’t think so,” she said.

Read the whole thing (Jim Hickey, Martha’s Vineyard Gazette). And (via incoming links, which themselves have a serendipitous quality much like thrift stores) here’s a picture from The Magic Bus, 1948; and a third entry in the series on vintage kids’ books by Carol Baicker-McKee.

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CPSIA: “What’s so sad is that books aren’t dangerous”

Excellent article today on libraries, books and CPSIA in one of Texas’s leading newspapers, the Fort Worth Star-Telegram. twolittleantsIt confirms, among other things, that the big Half Price Books chain has made a policy of pulling pre-1985 books from its shelves, as well as more recent books that contain various kinds of embellishments and special features. If you happen to know an editor with the New York Times, the Chicago Tribune or one of the other big media outlets that are still utterly ignoring the crisis, this makes a good clip to send them, just to let them know that 1) what’s going on is only too real; and 2) they’re being scooped repeatedly by other journalists, just as the Boston Globe scooped them last week on the resale story.

Also on the library issue, there is good coverage in the Zanesville, Ohio Times Reporter (a disproportionate amount of the good library coverage has come from the state of Ohio, which I suspect must be a tribute to some energetic library people there). The American Library Association has a wiki reiterating (at present) that association’s advice to members not to throw out pre-1985 books: “If you feel you must remove books from circulation, please store them until rulings are clearer!”. In her latest roundup, Deputy Headmistress describes how her own local library is boxing up many books that are likely to have been printed after 1985, because their copyright date falls before then; it is a common practice for children’s books to list only a copyright date even if they were printed many years later. So at that cautious library, at least, the law’s effects are even more drastic than one might have assumed.

Darwin Central, which took out after the offending Snopes.com on the books issue a couple of weeks ago, follows up today with a post entitled, “Snopes Defending the Book Burners”. poppyseedcakeLinda L. Richards at January Magazine was among those misled by the Snopes slant. In a wide-ranging CPSIA roundup last month (worth reading in its entirety), Punditry by the Pint had wise advice: “This might be one of the cases where it would be good to read up on Snopes’ False Authority Syndrome page.” A visit to the Snopes page in question indicates that it now carries a “Last Updated” date of February 19, which indicates that it has been changed since we last had occasion to discuss it; at a brief glance, some of the dismissive language I and others found so objectionable seems no longer to be there, though it has not been replaced by language that’s actually cogent or up-to-date. Someone might want to do a before-and-after comparison using the Wayback Machine.

Also on books, children’s book author and editor Carol Baicker-McKee has a lovely followup to her excellent post of a day earlier, describing some of the kinds of older children’s books (of uncertain copyright status, too “quiet” in their themes to attract reprint interest from publishers) that might face a bleak future. She admires silhouette art, a feature of many midcentury children’s books (like the 1941 Marcella Chute volume from which this illustration is taken) but which is uncommon today.
silhouette
Baicker-McKee has devoted more thought to the economics of children’s publishing than have most of us, and she writes beautifully of what is at risk. Ed Driscoll also has some to-the-point observations at Pajamas Media, where he quotes Mark Steyn: “A nation’s collective memory is the unseen seven-eighths of the iceberg. When you sever that, what’s left just bobs around on the surface, unmoored in every sense.”

There are other news stories I haven’t gotten to — in particular, the Wall Street Journal’s important reporting on $1 billion-plus (at least) in stranded inventories, much of which may be headed for landfills, and the news of the sudden 40% drop in the stock price of well-known kids’ retailer Gymboree as it was forced to take massive inventory write-offs. I’ll have to get to those at a later date, however, as an unrelated deadline is going to be absorbing much of my attention over the next few days.

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CPSIA chronicles, March 4

[Broken link on CPSC surveillance program fixed now.]

  • The internet is a-hum with reactions to a proposal by West Virginia state representative Jeff Eldridge (D-Big Ugly) to ban Barbie dolls “and other similar dolls that promote or influence girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.” That idea is predictably going nowhere (at least in West Virginia: Montpelier, Vt. is said to have voted a Barbie ban*), but Eldridge can perhaps take consolation in that CPSIA has already (with virtually no media taking note of the fact) banned the sale of vast numbers of vintage Barbies that pose equal dangers of symbolic or psychological impairment, if not of actual physical dangers. This 1999 New York Times piece describes how Mattel was “beginning an effort to eliminate” the use of polyvinyl chloride (PVC) compounds in the dolls, and that environmental activist groups contended that PVC often included lead as well as (less surprisingly) the plastic softeners phthalates, some but not all of which are banned by the law. dollsanddollclothes As Denise Van Patten noted in an About.com write-up in January, it is not clear what old dolls are still going to be lawful to sell, distribute or give away under CPSIA, if they cannot be fit into the “adult collectible” exception that covers items so expensive they will be kept out of children’s hands. Soft plastic is only the beginning of the problem. Most older dolls have paint as a component — often only in the rendering of the eyes, but that’s enough to count as a resale red flag under the CPSC’s Feb. 9 guidelines. Hair and dyed fabric, both of unknown composition? Buttons or snaps in the garment, or worse yet, rhinestones? About the only such plaything a thrift shop would not advised to discard under the guidelines would be an unpainted and unvarnished rigid humanoid figurine of raw wood or cast aluminum. If your child does find one of those on a thrift store shelf, she’s welcome to cuddle it all she pleases.
  • Carol Baicker McKee is a children’s book author and illustrator who commented eloquently (more) on one of our earlier posts about books. Now she has a great post explaining why, although she “never used to think of myself as an activist,” she’s thrown herself into the fight to change this law. As she points out, some things changed, but other things didn’t change, when the CPSC announced a short safe list of presumptively lawful material for children’s products along with a one-year stay on many testing requirements (but not on the banning of goods that flunk the thresholds). She explains why “the stays provide only the illusion of relief,” and that “when the stay ends a year from now, the destructive testing provisions will still go into effect for all children’s products except the small percentage that have been given a reprieve – the costs of that testing will force the remaining small businesses that have limped along this year into oblivion (and the [requirement for] destructive testing will obviously signal the end of one of a kind products).” Read the whole thing.
  • In a classic 1850 pamphlet, Frederic Bastiat writes of “what is seen, and what is not seen” when people recommend government solution to a problem. Deputy Headmistress writes of “what Congress didn’t see“. More: Patrick Stephens on a similar theme last month.
  • A Georgia newspaper quotes CPSC spokeswoman Arlene Flecha as saying that “her agency will have inspectors make unannounced visits to stores throughout the country and will randomly conduct tests on products.” And if you’re wondering about the CPSC “Internet surveillance project”, in which agents of the commission pose as consumers in order to trap detect persons selling forbidden goods on eBay or Craigslist, you can find out more about that here (link fixed now).
  • At the Heritage Foundation’s InsiderOnline blog, Alex Adrianson has a detail-filled though not lengthy post that would make a good short introduction to the subject to send to (say) a lawmaker.
  • Allison Loudermilk at the How Stuff Works blogs takes a look at the law’s heavy impact on thrift stores (“the selection at your local thrift store just got a whole lot slimmer”), while the PTA Thrift Shop of Carrboro, N.C. regrets to inform its customers that it’s out of kids’ resale entirely due to the law; things are only a little better in Salem, Ore. Manager Lisa Sonnek of the York, Nebraska Goodwill has pulled all the children’s clothing, toys, furniture, and pre-1985 books, in accord with policy from above, but has put aside “some clean children’s clothing, in anticipation of the policy being modified in the near future”. Dunno – that might depend on Henry Waxman’s heart melting or something.

*Although numerous online sources report as fact a Montpelier Barbie “ban”, commenter Barb says it’s far from clear that the reports have much of a factual basis.

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CPSIA chronicles, March 3

  • 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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CPSIA chronicles, March 2

Reading from the weekend:

  • At the American Spectator, Quin Hillyer says his co-thinkers “need to really get up newcriterionin arms about” changing the law, and has kind words for a certain website that is “the single best place to track all its devastation”. At The New Criterion, Roger Kimball finds that the threat to vintage children’s books provides a good instance of the dangers of “safety”. And commentator Hugh Hewitt is back with another column, “The Congress Should Fix CPSIA Now“.
  • Numerous disparaging things have been said of the “mommy bloggers” who’ve done so much to raise alarms about this law. Because, as one of Deputy Headmistress’s commenters points out, it’s already been decided that this law is needed to “protect the children”, and it’s not as if mere mothers might have anything special to contribute about that.
  • Plenty of continuing coverage out there on the minibike/ATV debacle, including Brian O’Neill, Pittsburgh Post-Gazette (office of local Congressman Mike Doyle, D-Pa., says most members think, dubiously, that ban “can be fixed without new legislation”); Lebanon, Pa. (“Ridiculous… It’s closed an entire market for us”), Waterbury, Ct. (“The velocipedesadgovernment does stupid things sometimes without thinking”), and, slightly less recent, Atlantic City, N.J. (“I would’ve had three sales this weekend, so they stomped us”). Some background: Off-Road (agency guidance in mid-February told dealers to get youth models “off their showfloors and back into holding areas”); Motorcycle USA (“With right-size models being unavailable to families, we may see more kids out on adult ATVs and we know that this leads to crashes”). To which illustrator Meredith Dillman on Twitter adds: “Just wait until someone gets hurt riding a broken bike they couldn’t get replacement parts for.”
  • One result of CPSIA is that a much wider range of goods are apt to be subject to recalls, but not to worry, because the CPSC recall process is so easy and straightforward.

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