Friday, May 1, 2009

I briefly read the Congressional Research Service's Report on CPSIA Implementation a couple of weeks ago, but hadn't slowed down long enough to really read it and report on it. And then tonight, when I wanted to look at it again, I couldn't find it again...But Walter Olson's Overlawyerd website to the rescue. There was the link, waiting for me.

Overall, the report seems fairly neutral and accurate. The author, Bruce Mulock, gives a quick overview of the law, the history of the CPSC, and the highlights of what’s been going on since last fall in the CPSIA fight – with Congress, the CPSC, and affected Companies.

In the fourth paragraph of the Introduction he sums up the problem from our side: "Confusion is rampant among manufacturers, importers, distributors, retailers, and consumers about new lead limits for consumer products intended for children 12 and under. Turmoil is particularly acute among small businesses. Despite agency efforts to provide clarification, consignment shops, thrift stores, and various charitable organizations still fear incurring stiff fines for inadvertently violating the CPSIA, and retailers across the county are contemplating disposing of valuable inventory that may well pose no health risks." That about sums it up right there -- and should it really take any more than that to show the authors of this mess that they have work to do? Apparently Common Sense and Reasonableness are uncommon traits in D.C.

On page 7 of the Report he starts the section "CPSIA Implementation Plagued by Concerns and Confusion". Concerns and Confusion….Yes, CPSIA has certainly fostered no shortage of those. And then on page 8 he mentions the contradictory nature of some of what the CPSC did in January with regards to CPSIA, "On January 8, 2009, the agency issued a Guidance Intended for Resellers of Children’s Products, Thrift and Consignment Stores. This document emphasized that the Commission’s enforcement priorities focused on manufacturers, not on retail establishments which were selling or reselling consumer products…Nevertheless, the Guidance also went on to say: ‘However, resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.’”

So, while it was a nice gesture for the CPSC to say that its enforcement priorities were going to be the manufacturers, they went on to put those of us in the resell business in a very difficult position, making sure we understood that we could face civil and criminal penalties…And making it clear that we would not have to have knowledge of excessive lead content to be found guilty…A month before the law was going into effect, none of this was very comforting to most of us who would be affected by it!

And then on page 9 Mulock says, “Despite weeks of back and forth between Members of Congress and the CPSC, it is still far from clear whether the problem is with the CPSIA itself or with the manner in which the CPSC is administering it.” For those of us being harmed by the law, it really doesn’t matter! But this student of the matter says Congress made the mess, and Congress needs to stop blaming others and clean up their mess!
And in case this fact was lost on any of us, Mulock points out that the stays issued by the CPSC are all well and good, but: “The CPSC lost some of its ability to use discretion in its enforcement of the CPSIA, by virtue of the act’s having empowered state attorneys general to enforce the CPSIA. What that means with regard to the agency’s January 30, 2009 decision to stay certain testing and certification requirements is for now the chief example. The CPSC is powerless to command state attorney general to join in the stay. If a state attorney general decided to ignore the stay—and bring an action against a retailer for violating the CPSIA—the CPSC could not prevent such an outcome.” So again, the stay, like the clarification, is a nice idea, but what did it REALLY accomplish? The Attorney Generals are not bound by the stay.

Which brings us back to the position so many of us have been at for months: Good intentions do not make good laws. Children are not safer because of CPSIA. Congress must admit that they’ve blown it – and fix this law!!!

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