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(Click here for more coverage of CPSIA.)

The February 10, 2009, start of enforcement of the Consumer Products Safety Improvement Act of 2008 continues to draw closer as the US federal government still has its head stuck in the sand regarding the mess the law is about to make.

On January 22, 2009, the book publishing industry met with the Consumer Products Safety Commission to give them evidence of 150 test results from finished children’s books to show that lead is not a reasonable concern for such items. But there is still no indication of what CPSC will do about the matter, if anything.

Publisher’s Weekly reported that the Consumer Product Safety Commission has indicated that resellers can rely upon a “General Certificate of Conformity” coming from book manufacturers. The testing required starting February 10 needs to be at 600ppm limits using reasonable internal guidelines. But come August 14, 2009, the limit will be lowered to 300ppm and testing needs to be done by third parties.

CPSC has also indicated that thrift and consignment shops don’t have to test the merchandise they resell, but if they sell something beyond the limits then they are still liable. The liability is up to $100,000 fine per violation with a limit of $15 million in fines for multiple violations. The resellers could be pursued criminally and end up in prison for up to 5 years. It won’t be just the feds after them — state attorney generals are also authorized to prosecute.

Let’s be honest here. If you were a reseller running a generally law-abiding operation, with penalties like that would you risk selling anything that you hadn’t tested to get solid evidence it had no limit violations? But at $150+ per item for testing, effectively the entire thrift and consignment store industry has been put into Russian Roulette mode. The only real way out is to stop selling children’s products or go out of business. Those could be the same thing for operations that specialize in resale of used children’s products.

Criticism of the misguided and poorly considered Consumer Products Safety Improvement Act of 2008 continues to mount. In the last two weeks, Forbes Magazine has published multiple editorial opinions calling attention to the law’s drastic repercussions on any business or institution dealing with products for children age 12 and under.

Congressional representatives have written a letter to the CPSC urging the agency to move more quickly on deciding what industries and products will be exempt and to clarify testing procedures. Some are also discussing holding a round of committee hearings on CPSIA.

CPSIA is an example of government power run amok to the level of abuse of power.

Making children’s products safe is a terrific goal. But CPSIA doesn’t even do that. While it enacts strict limits on lead for products that haven’t used it for decades if ever, it doesn’t do a thing to cover dangerous chemicals such as Bisphenol-A that are used widely in many products for children and adults. But perhaps this should come as no big surprise as Bisphenol-A had a political lobby and its manufacturers appear to have manipulated safety studies to get the results they wanted, as documented in a recent exposé by Fast Company.

But perhaps putting many American businesses that make perfectly safe products out of business because they cannot afford the expensive extreme testing measures required is not the way to make safer products?

If that is such a great idea, why stop there? Why not just outlaw all sales of all products for children ages 12 and under? Then there would be no unsafe products sold, except by criminals of which there would very soon be tens of millions as parents can’t get by without diapers, bottles, baby food, and children’s clothes. Given the insane mindset of the government, they would likely view the answer to that as being simply building more federal prisons and spin it as a “jobs creation” program as part of an economic stimulus package. And of course there could be a huge expansion of foster care and “child protection” programs, too. At least until the foster parents all ended up as criminals, too.

Back to reality, it’s quite possible that the lead and phthalate limits embodied in CPSIA could be reached across the board. In many or most children’s products, they already are. The problem is that the legal requirement to test finished products from every production lot down to the level of detail of testing every component in the finished product is outrageously expensive. For example, this means that small businesses that sell hand-made products are likely to be wiped out. Their “production runs” may be only dozens of items at a time. They cannot afford to test every spool of thread of each and every color, every delivery of buttons and snaps, and every can of paint they buy. The testing could far exceed the cost of manufacturing. And some of those things, such as the paint, haven’t legally had lead content in them for decades.

CPSIA should have been designed to drive the testing requirements towards the start of the manufacturing process, not at its conclusion. The reason is simple economics. The original manufacturers of materials and components could test small quantities of their large production runs and provide certificates of conformity and test results to their buyers. These could be filed and tracked by electronic means, with abbreviated testing conformity stamps, stickers, or papers supplied with each order of materials shipped. The testing conformity indicators could be used by the buyers to look up the test results and verify that the materials and components they received were in fact tested according to their original manufacturers. While this still adds some cost, it is nowhere near having to test samples of every component from every finished production run of a product.

To add an additional measure of safety without undo costs on small businesses, the government could use some of the $600+ million in CPSC funding authorized by CPSIA to randomly test materials and components for violations. Some of the costs could be recouped by random testing fees on businesses based upon the number of employees and by fines when violations are found. For instance, charge $100 for a random spot test for a manufacturer with 10 employees on up to $10,000 for more thorough testing for a manufacturer with 10,000 employees or more.

To cover concerns regarding production line contamination apart from source materials and components, manufacturers could be given an option to either do the finished product testing as currently specified or to test environmental samples obtained from their operating production lines or manufacturing facilities to show that they have levels of lead and phthalates that are consistent with safe limits in finished products.

The number of tests required could be based upon the number of sites and the production volume or number of employees. Small manufacturers building 100 toy rocking horses per year in a garage-based “plant” with one owner-employee might be subject to one test per year. Big manufacturers building 10,000,000 toy dolls in 6 factories employing 1000 workers would require more tests, perhaps monthly tests at each plant for a total of 72 per year. Assuming these tests cost about $300 each, they would add $3 to the cost of those toy rocking horses and perhaps less than a penny per doll. This may still not be ideal for small volume children’s product manufacturers, but it at least gives them a shot of staying in business while still taking some precautions to ensure that mass sales of unsafe products do not occur.

However, with the impending February 10, 2009, “doomsday” nearly here, there isn’t enough time to competently fix the messed up law by slow-minded government agencies and committees. The only real answers are to use blanket exemptions and delays in enforcement until the monster that is CPSIA can be domesticated to the point it won’t cause more harm than good.

Where to protest CPSIA 2008:

Petition: Save Kid’s Clothing Resale, Consignment & Thrift Stores from Closing!

Contact Information for US Senators

Contact US House of Representatives

Contact the Consumer Products Safety Commission

Handmade Toy Alliance

Save Small Business from CPSIA!

Further reading:

National Bankruptcy Day

New Lead Law Has Some Sellers Fearing For Survival

Publisher’s Weekly: Children’s Book Safety Issue Heats Up (2009-Jan-23)

Publisher’s Weekly: The Very Latest on CPSIA and Books (2009-Jan-15)

Publisher’s Weekly: Industry Scrambling to Comply with Child Safety Act (2009-Jan-09)