By Megan Hayes

Over 60 organizations have signed a petition requesting the delay of implementation of a bill passed by Congress.  You’re thinking that this is about the DTV transition and the organizations are pro-consumer.  You’d be wrong. I’m talking about the Consumer Product Safety Improvement Act (CPSIA) of 2008.This is a far-reaching, sweeping overhaul of consumer product safety law in the U.S.  It’s great for consumers and many of the provisions are meant to protect consumers, especially children, from harm that could be inflicted by products.

Unfortunately, Congress, in its haste to respond to the 2007 ‘Summer of Recalls’ failed to provide enough time for implementation. They didn’t give enough time to any stakeholders: manufacturers, retailers, resellers, the Consumer Product Safety Commission (CPSC) or consumer groups. Consumers aren’t aware of the impact of the bill, retailers are still unsure about their responsibilities and manufacturers are struggling to meet deadlines, defined by the bill, for which they do not yet have final rules from the CPSC.

I’d hate for anyone to think that I’m anti-consumer, or that I don’t care about the country’s children.  You’ll recall from previous posts, that I have a nephew who I adore.  He just turned one and he got tons of toys for his birthday.  I would hate to think that there could be substances in those toys that could cause him harm.  My boyfriend also has two children who are 7 and 10 years old and who fall under the definition of ‘child’ under this piece of legislation (12 and under).  I wouldn’t want something that we purchased for them to be harmful, or contain particles that could affect their development or brain function.

However, I have to argue that Congress should consider the business environment, technological feasibility and common sense of any piece of legislation that they want to pass.  According to the CPSIA, all children’s products (those that are designed for children under 12) are subject to certain provisions of the bill, including the lead limits. These lead limits go into effect on February 10, 2009. The CPSC has issued some notice of proposed rulemakings on issues related to these lead limits.  Unfortunately, the comment period for these issues does not close until February 17, 2009.  These rulemakings cannot be completed before the implementation date.  Moreover, the CPSC has not released information on the ever important testing methodology that should be used for the majority of products sold in the U.S. They have also not issued information clarifying the component testing requirements that exist in the CPSIA. These problems make implementation of the CPSIA lead limits impossible before the February 10, 2009 deadline. 

There are some other issues with the CPSIA lead limits that do not make any sense to me:

1. The inclusion of ALL children’s products – under this legislation, even white cotton t-shirts, wooden toys and books must be tested for lead content. The manufacturers of these products maintain that they are inherently lead-free, but the CPSC and Congress insist that these products could contain harmful levels of lead and must be tested.

2. Retroactivity – the CPSC has indicated that lead limits apply retroactively to products that exist in inventory. This interpretation will require millions (if not billions) of products to be tested before they can be sold in the US.  It could also mean billions of dollars of products being destroyed because testing them is not economically feasible.  There are those that argue that February 10, 2009 will be National Bankruptcy Day as testing or destroying that amount of inventory will likely bankrupt many small retailers throughout the country.

3. The definition of ‘children’s product’ could be so much clearer. I understand that there are some things that are clearly children’s products, like this fun little ride-on toy my nephew got for his birthday. But what about the XBOX that my boyfriend’s daughters play with whenever they are at his place. Was that intended for children under 12?  Or, is it a general use product that might be used by children under 12?  Does it depend on the game that is being played?

4. According to a recent clarification statement from the CPSC, “The new safety law does not require resellers to test children’s products in inventory for compliance with the lead limit before they are sold. 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.” Am I the only one that is confused by this clarifying statement?  Resellers (like thrift stores or consignment shops) don’t have to test their inventory, but they can’t sell anything that isn’t in compliance with the CPSIA.  If they don’t test their inventory, how are they supposed to know if it’s compliant with the law?

5. Finally, the inclusion of handmade products in the lead limits means that some crafty-type people are being put out of business.  I knit for fun and often give away the fruits of my labor – here’s a photo of my cousin’s baby with the blanket that I made for him. If I were to want to sell products like that one, intended for children under 12, after the February 10, 2009 deadline, I would have to certify that it met the lead limits under the CPSIA.  Now, because my component parts (yarn) aren’t deemed to be children’s products, I have no way of knowing if my baby blanket meets the CPSIA lead limits, and it would cost me a lot of money (some estimates are $4k per product) to find out.  Doesn’t that strike you as ridiculous? 

When I was writing this blog entry, I thought that perhaps I was being too pro-industry.  And, while there are some that will argue that I was correct, and that the lead limits and other provisions of the CPSIA are intended to protect America’s children and ensure safe products, I have to disagree.  In this case, if the CPSIA is to be implemented per the deadlines included in the legislation, it is the consumers who will suffer.  Prices will go up because of the testing fees and the inventory that will have to be destroyed.  In this economic environment, can we afford to have this happen because a white cotton t-shirt had to be tested for lead content?

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This entry was posted on Wednesday, February 4th, 2009 at 11:20 am and is filed under Technology Standards. Reply to this post, or trackback from your own site. Follow responses to this entry through the comments RSS feed.