Following two posts by Jonathan Adler, readers there are discussing CPSIA’s effects on vintage kids’ books and on rhinestones and crystals. More: Glenn Reynolds, Instapundit (with link to Adler), Megan McArdle (linking to my City Journal piece). And Joseph Bottum at First Things has generous words for our coverage of the story.
On July 17 the Consumer Product Safety Commission refused to exempt or stay the coverage of crystals, rhinestones and glass beads under the Consumer Product Safety Improvement Act of 2008. Although lead has long been an ingredient in the manufacture of all true crystals, most rhinestones and many glass beads, there seems to be a dearth of actual real-life instances of children contracting lead poisoning from licking, chewing or swallowing these baubles, apparently because the lead in question, unlike lead in metallic form or in paint pigments, is bound to other substances and not “biologically available”. “Even if you have it in stomach acids for weeks it does not come out,” said Michael Gale, director of the Fashion Jewelry Trade Association, in one recent story. Gale’s trade group had petitioned (PDF) for the regulatory relief. (Earlier background in our March 7 and Feb. 25 posts).
To a large extent the Commission’s hands were tied (PDF) by the absolutist, not to say fanatical, prescription of CPSIA itself, which directs that exemptions be turned down if they could lead to “any” — not “infinitesimal”, not “too small to worry about” — absorption of lead or public health risk. This point was recognized by both the commission’s career staff (PDF: “the staff would have recommended that the Commission not consider the product to be a hazardous substance to be regulated under the FHSA”) and by its three commissioners (Tenenbaum, Moore, Nord statements). CPSC Chairwoman Inez Tenenbaum, a Democrat, noted that the law “does not allow for the consideration of risk”. So it doesn’t matter that other jurisdictions, like Europe or California, may regulate this topic in a more realistic way, or that vast stocks of existing children’s clothing, from performance dance troupe outfits to 11-year-olds’ “blingwear”, will instantly be rendered worthless. It doesn’t even matter whether a kid’s health is at more risk (by way of traffic accidents) from being driven to the mall to buy a substitute garment than from going ahead and wearing the rhinestone-bedecked tiara or camisole in question (coverage: The Hill, ShopFloor, Manatt Phelps & Phillips, Rick Woldenberg, Way to Bow, Los Angeles Times).
As Commissioner Nancy Nord notes, the ban will inflict major economic losses, possibly extending to the disappearance of entire product lines, since consumers generally don’t like plastic substitutes for rhinestones as well as the real thing. America’s costume jewelry industry is based in Rhode Island, and the Providence Journal has led with the most serious newspaper coverage (“Kids can’t wear rhinestones“) of last month’s decision, which as usual has been entirely ignored by the New York Times and various other large papers. More: Justin Katz at Rhode Island blog Anchor Rising (“So, the economy is struggling, right? Well, what better time to beginning banning products that are acknowledged to be safe and for which there’s an active market?”). For the effects of the ban on one well-known purveyor of kids’ clothes, Gymboree, see this March Washington Post report, as well as our March 23 account. Although the CPSC is making noises about concentrating its enforcement on products for kids 6 and under — a cutoff mentioned nowhere in the law — Rick Woldenberg thinks this is doomed to fail as a step toward reassuring businesses, however well-intentioned it may be, since the goods remain flatly illegal for kids 7-12.
Hugh Hewitt (via Wood) draws a wider moral from politicians’ refusal to take responsibility for the series of disasters the law has brought about:
The refusal of Congress to move to clean up the mess it made with CPSIA also announces what will happen after Congress passes its magic wand over health care and blows up who knows what: nothing. Tough luck. Deal with it. They will all have campaigns to run which won’t want to focus on the new law’s failures and shortfalls.
At Forbes, meanwhile, Jeff Stier of the American Council on Science and Health points out that soil from the White House organic garden has higher concentrations of lead than many products banned under the new law.
PUBLIC DOMAIN IMAGES by illustrator Gordon Robinson from 1916 Samuel Gabriel & Sons reprint of Alice’s Adventures in Wonderland, courtesy ChildrensLibrary.org.
As a goodwill gesture, the president of the Eastern European nation gave the former Second Family some of the sorts of decorated blouses, wooden toys, and other crafted children’s items for which Ukrainian culture is renowned. But did Lynne Cheney risk flouting the intent of CPSIA by accepting them? [Carter Wood, ShopFloor; Al Kamen, Washington Post]
Good article in Arizona Republic on the difficulties besetting a Scottsdale diaper maker, a Chandler toy maker that has spent $400,000 on compliance efforts with no end in sight, a baby carrier maker in Mesa that expects to go under, and a maker of fabric products in Chandler who says she can’t keep up with the changing requirements. [Chase Purdy, “Companies feel strain of complying with safety law”, July 8]
On August 14, unless the Consumer Product Safety Commission acts to stay matters, a new set of CPSIA provisions will take effect requiring makers of children’s products to affix to their goods tracking labels intended to facilitate future recalls and other safety-related measures. As with many other aspects of this law, the tracking rules impose a burden that is perhaps bearable for many producers who operate on a large industrial scale; as noted in some detail two weeks ago, however, they are causing much hair-pulling — if not thoughts of retirement or bankruptcy — for many others that produce handmade, customized or small-batch items, or items not well suited in size, material, use or packaging to an individual labeling process. Kathleen Fasanella has a short account at Fashion Incubator explaining some of the steps that will be expected of those producing children’s apparel and sewn products, including makers who might have been turning out a dozen hats or cloth dolls a month at their kitchen tables:
…Each batch needs a unique identifying number.
However, if in the course of making the products, you have to break into a separate box of buttons that has a separate batch or lot number itself, even if the product is otherwise identical, this is a separate batch and you need a separate new label for it with its own batch number that you assign. … It is conceivable [if you incorporate variations into the product] every item you produce is its own batch and each needs its own number and label. …
You will need to do “batch control”. You need to create a separate BOM [Bill of Materials] for each batch. You can keep this electronically in a database or spreadsheet. It is my understanding you need to keep these records for three years.
The CPSC has issued no guidance on the tracking label requirements, which means producers can only guess as to exactly what will prove acceptable, with the price of guessing wrong set very high indeed. A hearing by the commission in May aired a sampling of the expectations of disaster from various affected businesses around the country.
Per ShopFloor, “the National Association of Manufacturers and the CPSC Coalition have submitted another request for an emergency, one-year stay of enforcement” of CPSIA’s Section 103, which imposes the requirement; the commission has (after much agonizing) agreed to stay some of the law’s other impractical mandates for periods of a year or two, but a petition to stay the tracking-label rules failed in March when the then-two-member commission split 1-1 on it. Now, however, a third member has joined in the person of newly confirmed Chairman Inez Tenenbaum, whose opinion may prove decisive. Reform voice Rick Woldenberg argues that the CPSC should adopt at least a one-year stay and indeed go further than that so as to avert a “fiasco” that “creates enormous burdens for industry and is in many ways pointless and unjustifiable”.
Or Congress could step in, admit it went too far last year, and set about fixing things. Just kidding! We know it won’t.
Public domain paper doll images courtesy Karen’s Whimsy.
A bill to extend intellectual-property concepts — and litigation based on those concepts — into the world of fashion and design is pending in Congress. Kathleen Fasanella, whose Fashion Incubator site has done much to advance the CPSIA fight, warns the law will be enough to sink many small apparel and fabric firms that can’t afford lawyers to fight big firms’ infringement claims — and that it could spell an end to her own advisory/website business as well. “If CPSIA was an amputation, the Design Piracy Prohibition Act is a beheading.” A view in favor of the legislation: Counterfeit Chic. The Council of Fashion Designers of America, representing many big-name fashion design houses, has pushed for the bill, while “the largest industry group, the venerable American Apparel and Footwear Association” is opposed, predicting it will lead to “an environment of ubiquitous lawsuits between legitimate companies”.
More on CPSIA’s costs: “Even though there is no evidence that his company’s hosiery contains lead, his company will be forced to pay more than $500,000 on lead testing over the next year,” said David McCubbin of Oklahoma’s McCubbin Hosiery. And so long, giraffe teethers:
Suzanne Lang, owner of Starbright Baby Teething Giraffes in Boalsburg, Pa., created 36 patterns of giraffes last year. To test each of these items for lead and phthalates would cost up to $81,000, she said. She only grossed $4,500 last year.
Unless the law is changed, “thousands of small businesses and crafters will be put out of business in this already tough economic climate,” Lang said.
Last month the office of Rep. Diana DeGette (D-Colo.), a co-sponsor of the measure, “said the bill is doing exactly what it is meant to do“.
The testing requirements of the Consumer Product Safety Improvement Act are due to go into effect nine months from now, when the temporary stay expires. Here’s what they’ll do [AmendTheCPSIA.com] to the economics of one Bay Area designer who specializes in “100% natural, locally-made, completely adorable peapod-shaped baby sleep sacks”, a product line relatively well suited to absorb the costs of a testing program since the item sells for a fairly high price and doesn’t have many component parts:
If I were to have each batch of my current inventory tested by CPSC-approved third party, I would have to pay $57 per print and batch for 3rd party lead testing, and $278 per print & batch for phthalates, totaling $4,690 altogether. If I were to increase my price point based on cost increases to cover this 3rd party testing, I’d have to raise my price point by $19.14 each. My precious baby sleepsacks are barely selling at $53.95, so charging $73.09 each in these tough economic times would surely put me out of business.
[…Or I could instead produce] a single batch of sleepsacks (ONE PRINT). I’d then have it 3rd party tested for lead and phthalates, and increase the price point to $57.95. With an increased price point and only one style/print in my line, I could hardly remain competitive in the marketplace!
- At long last a House committee — the one on Small Business — has announced a hearing on CPSIA’s impact on small business, to take place Thursday. (I’m almost hesitant to report this as good news since the last time I did so it took only hours for the event to be called off). The Small Business panel does not have primary legislative authority in the area; that is vested in Rep. Henry Waxman’s Energy and Commerce Committee, whose CPSIA-overseeing subcommittee has chosen instead to hold hearings on that very urgent subject of public concern, college bowl championships. Rick Woldenberg recalls the fingers-in-ears techniques the House has used to shut out unwanted information up to now: first Waxman/Rush staffers prearranged “hearings” that heard nothing, after which they (successfully up to now) maneuvered to make sure critics of the law would not obtain any official Hill forum at which to air their grievances as public outrage built.
- The Consumer Product Safety Commission has released new guidance (PDF) for thrift shops and other product resellers on compliance with CPSIA and other laws overseen by the agency. According to Ian at Musings at a Catholic Bookstore , the manual lays out policies that differ only slightly from what was known before, often by spelling out what will be made an enforcement priority, since the commission has no power to alter the law’s actual requirements. Thus it seems phthalates in older kids’ playthings, the kind unlikely to be placed in the mouth, are not going to be a high priority in reseller enforcement — which still doesn’t make it legal to resell those items. For many outside readers the biggest surprise seems to have been that the agency views its authority as extending to yard sales. As Ian notes, this isn’t actually news; it’s just that the new manual is spelling it out in a more visible way than it did at some earlier times.
- “Toy Story 3: Emperor Uncle Sam Puts You Out of Business” [Rep. Joe Barton (R-Tex.), The Hill]
- In the ongoing series of crises that is CPSIA, the next major crisis is due on or around August 14, as of which date newly made children’s goods must comply with new tracking and labeling requirements (touched on briefly in this space last month). The intent is to make it easier to trace and contain safety problems, enable recalls and so forth. For makers of children’s apparel, Kathleen Fasanella explains the complicated and sometimes expensive implications in posts here, here, and here. And apparel makers have it relatively easy, in part because they are already used to affixing permanent labels to most products, unlike many makers of items such as wooden toys and pencils, straw dolls, ceramic wall plaques, rubber spiders or bouncy balls, glass bead craft items, and so forth. Toy importer Rob Wilson writes, “this one clause will be enough to finish off a good majority of the companies that the other provisions of the law do not kill first. I personally know of many companies that are planning to close by August 15th if this provision is not amended.” The National Association of Manufacturers has requested (PDF) an emergency stay on the tracking and labeling rules; the CPSC has put off consideration of the request. Rick Woldenberg comments here and here. And tomorrow (Tues., May 12) at 1 p.m., the CPSC is holding a meeting, to which any interested member of the public is invited, to discuss the tracking and labeling rules. (Update: CPSC hearing is online as a webcast (h/t Woldenberg). Kathleen Fasanella has more, including links to more than 500 pages of protest letters, PDF, received by the CPSC on the issue).
- Cutting across multiple lines: per the Bulletin in Bend, Oregon, a local resident whose son got sick from salmonella (and recovered) appeared with Rep. Henry Waxman at a press conference to promote more effective federal food safety regulations; at the same time, though, “Christoferson said she can sympathize with the harm that poorly written rules can do to businesses” because her own resale store in the city of Bend, Stone Soup, has been harmed by CPSIA.
- Whimsical Walney, who has written with passion about the CPSIA fight, has announced that she is closing the doors of her children’s business.
Public domain paper doll images courtesy Karen’s Whimsy.
- Understatement alert: per the official Congressional Research Service on Capitol Hill, “For the moment…one thing seems certain: implementation of the CPSIA is not going well.” [report in PDF format courtesy ShopFloor]
- In Wisconsin, the Madison Children’s Museum has for the past 21 years based its annual fundraiser (July 18, this year) on a big discount sale of American Girl dolls and accessories. Worse luck for them.
- “Anti-recycling”, maybe? Is there a word for what happens when you yank perfectly safe, useful products off shelves by the ton and send them instead to landfills?
- Blast from the past dept.: if you think Public Citizen has made a mess of the risk and science issues in its advocacy on behalf of CPSIA, you should check out the world-class mess it made when it enlisted in the trial lawyer campaign against silicone breast implants, to name but such one campaign of many.
- Powersports dealers wary of whether new stay of enforcement really protects them [DealerNews, Sioux City (Iowa) Journal]
- The first senior, influential Senate Democrat to acknowledge that CPSIA needs fixing? Montana’s Max Baucus is willing at least to sign on to a legalize-minibikes bill.
- In the comments section on NPR’s phthalates story earlier this month, one of the most-recommended comments was that by Steven Tesney of Houston, who wrote, “As a result of CPSIA and the surrounding political grandstanding, my small home-based company will be going out of business. I design clothing for ‘Alternative’ families with infants, toddlers & kids. My products are organic and use natural dyes but because of new testing requirements that are completely cost prohibitive, I will be forced – along with hundreds of thousands of crafters, artisans and other small business owners – to close my doors. The only companies that will be able to afford the testing will be large corporations (many from China). Mass produced goods win while homemade, handcrafted goods lose. Say goodbye to the charming hand carved wooden toys & crocheted baby caps that you take to baby showers. Say hello to a plethora of licensed products staring back at your children.”
- “CPSIA and the black market” [Wacky Hermit]
Public domain image courtesy ChildrensLibrary.org: Walter Crane, illustrator, The Baby’s Aesop (1887)