Sunday, March 15, 2009

Some of my early thoughts on CPSIA

“First do no harm”. This motto of health professionals should be a requirement for our elected legislative officials. Instead, it seems that their motto is “good ideas make good laws”. The Consumer Product Safety Improvement Act (CPSIA) of 2008 is a great example of that not working.

On February 10th, the economic world stood still – and very few people noticed. It was not the economic tidal wave that had been predicted earlier in the year – but the waves were felt across the country, and will continue to be felt into the future.

Activist groups such as Consumer Union and Citizen Watch applaud the law, and are working hard to keep any changes from being made to it. They mock the naysayers as being ignorant and misinformed, and accuse small business people of overreacting to this law.

For those who have missed the outrage on either side over CPSIA (which would be most of us), let me explain it briefly:

The background: In 2007 large quantities of lead laden toys were imported from Asia; much fuss was made about it when it was discovered, and thousands of toys had to be recalled.

The response: From these unfortunate incidents came a wide-sweeping bill. Because it was presented in the name of “protecting children”, little attention was paid by our elected officials to the overzealous nature of the law brought before them. Our congressmen and senators, almost without fail, voted for the bill. (Only one congressman voted against the final version, and just three senators.) And on August 14, 2008, President Bush signed it in to law. Some aspects of the law went into effect immediately, others were slated to go into effect six months later, on February 10, 2009, and still more a year later, in August, 2009.

With the above facts, it is not a stretch of the imagination to believe that many of us who are being affected by the law have spent more time studying it and debating it than did our elected officials who enacted it. Most of us who are being affected by it had not even heard about it until a month or so before the February 10th deadline. But since then we have become immersed in it: Reading the 60+ page bill itself (which we can safely guess most of our Representatives did not do); and pouring over the Consumer Product Safety Commission’s (CPSC) website: reading their responses to the FAQs, viewing the hearings they had with the fabric and apparel industry and the book publishers, and much more.

A summary of the law: In short, all children’s products (defined as products intended for children 12 and under) must meet newer, stiffer lead limits and phthalates limits (an element used in making some plastics more pliable). AND all said products will eventually need to be tested and certified to meet those limits (more on that later).

The problems: It sounds good to say that we want children’s products to be safe. But let’s look at how wide sweeping this piece of legislation is:

1) Children up through age 12 are included – an upper age of 5 or 6 would have been more in line with the problems that had occurred, and the purported intent of the law, and made the implementation of it much less drastic.

2) “All children’s products” are being included – which sounds like a good idea until you look at what “all” includes.

3) For example, books are included in “all”. “Regular books”, which could easily be defined as those without play value, have never been recalled, and never been a health risk. Yet they are currently included in this law.

4) Children’s clothing and other fabric items are being included, even though these have been seldom included in recall issues. (And where there has been an issue – it has generally been unacceptable lead levels introduced through silk screening or fasteners – coming in from Asia.)

5) And there is no distinction in the law to mass produced items that end up on “big box” store shelves (and again, where the problem initially came from) and items that are being hand-crafted or self-published on a small scale (neither of which caused the problems “being addressed” by this legislation).

6) And resellers are being required to abide by these restrictions – not just those who are retailing new items.

Why are any of the above problems? Let’s review the most important ways:

1) Let’s start with resellers. Again, it sounds good to say that we want all unsafe products removed from store shelves. But what does this become to resellers? The CPSC has been talking out of both sides of its mouth in this regards. They issued a “clarification” that resellers are not expected to test the products that come into their stores. However, and this is the big problem, they cannot sell things that are banned by this law – that would include the thousands of things already recalled, and the countless more that will become illegal under the new lead and phthalates limits, but that are already in circulation. When the CPSC was asked how resellers could possibly know if something had too much lead – the answer was simple: “Test it”.

2) And the list of items that have been recalled is massive. I spent an hour looking over the CPSC’s data base of over 4,000 recalled items, and cannot even imagine having to go through that every time a used “children’s product” came into my store. Resellers who are paying attention to these two requirements may well decide it is easier to stop carrying children’s products than to worry about the risks of inadvertently violating the law. (I know at least one reseller who is cutting out all risky children’s items as a result of this.) Has anyone thought through the practical implications of this for families who rely on the second-hand market to make their budgets work? And how many items will end up in landfills now that really didn’t need to?

3) Once the next stage goes into effect – it will become practically impossible for hand crafters, and self-publishers, who produce “children’s products” to continue, because they will have the same testing and certification requirements of the “big guys”. This is not economically feasible for most of these small businesses, and most of them will have to stop producing those items when this portion of the law is enforced. Fortunately, the deadline for the certification and testing requirements has been moved out another 12 months, but it still remains out there on the horizon in the not so distant future.

4) Many perfectly safe children’s items (such as books and most clothing items) that remain in the market will go up in price in the near future because of the testing and certification requirements that are being applied across the board to all children’s products. Again, it’s not that all of these requirements are unreasonable, but what is unreasonable is that they are being applied to an entire market, instead of just the areas that would make sense (such as children’s toys).

As parents, we want our children to be safe. But we do not expect the government to do our job. We are capable of making sure that their toys are safe and that they don’t eat their books. We don’t need a “Nanny Government” to do our jobs for us.

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