Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘CPSIA and books’

CPSIA and vintage books, cont’d: slicing the past

The article I wrote for City Journal Thursday on the legal fate of pre-1985 children’s books has been drawing all sorts of attention, and all I can acknowledge are a few of the highlights. Education expert Jay Greene and Darleen Click at Protein Wisdom are among those put in mind of Ray Bradbury’s novel Fahrenheit 451. “Of all the risks facing American children, old books must rank very, very low,” writes leading education blogger Joanne Jacobs. Will Benton: “Every time I learn something new about the CPSIA, I get more enraged.” Illinois blogger T. Varner notices an ad for a local thrift store saying it would no longer accept donations of a “very long list” of items including “children’s books published before 1985”; only later does it click. Hector Owen: “This is what happens when Congress passes these bloated bills that nobody reads, and the President signs them, and then we start to find out what was in there. Oh dear, what did they just do last week?” JDub at Ace of Spades: “Overlawyered has pretty much flooded the zone on this — I don’t want to simply link all of the things he’s got, so give him a look. … Go. Read. Be angry.” And Mark Bennett, of criminal law blog Defending People, gives it a mention in the course of hosting Blawg Review no. 199.
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If you have time to read only one post from the weekend on the topic of CPSIA and books, however, make it Common Room‘s. She discusses, among other topics, the narrowness of the “collectibles for adult use” exception, the extra-vulnerable status of vintage kids’ nature and science books, which go out of print quickly and are seldom reprinted, and the fate of ex-library versions, beloved by book buyers on budgets. She also confesses to a temptation to slice the gorgeous illustrations out of certain books, a practice likely to be encouraged by CPSIA, if only because 1) the illustrations often have monetary value and might benefit from the defense that on their own they are not a product intended for children’s use; 2) the mutilated book that remains will be a less risky thing to donate, circulate or sell, since it is the color illustrations that are thought to pose the prime risk of containing infinitesimal lead exposures.* (More: as part of another good roundup, she calls our attention to this excellent Valerie Jacobsen post on why “marketing vintage children’s books as ‘adult collectibles’ will work for some children’s books, but only for a few.”)

Sierra Highlands, who like Common Room includes some beguiling illustrations, writes:

….so long as Google Books and Gutenberg are out there, the old books won’t be gone completely, but it hurts to hear of the beautiful old editions going out with tomorrow’s trash. It really, really hurts. There’s something about the physical presence of an old book that links us to our ancestors and to a world where books were loved enough to be put into beautiful editions. When I pick up an old book, often shabby on the surface but well handled, well made, well-loved, quiet but rich in form and content, I feel connected to the Permanent Things in body as well as spirit.

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The BookShopBlog owner’s removal of six boxes of older children’s books from her shelves, mentioned here, also started an Etsy thread. Another poster at the same location had an idea for a national read-in day of protest for vintage books on the last day of National Library Week, Apr. 18.

Also, I was linked by a resource page on Anne of Green Gables and her creator, L.M. Montgomery, which made my week all by itself. I’ve started a special tag for CPSIA and books, distinct from the general CPSIA tag.

*Just to clarify the legalities once more: CPSIA does not make it unlawful to own pre-1985 kids’ books, nor does it ban the sale of such books when, as is true for many millions of them, they contain no lead in their pigments. But resellers cannot be sure which do and which don’t, and the law exposes them to liability should they stock a book with lead even if the misstep was in good faith and even if (of course) no child is hurt. The CPSC’s guidance provides a conspicuous safe harbor for the sale of books printed after 1985.

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CPSIA: “Books, left out at the curb…”

Bedtime without books
Cecilia Leibovitz in our comments section:

Today I noticed a small box of books that had been left out at the curb of a thrift shop here in Vermont. All but two were children’s books printed prior to 1985.

Feel free in comments to add your sightings, positive or negative, of what is happening in the world of kids’ resale. (More: Bookseller Nora O’Neill took six boxes’ worth of kids’ books off the shelves in her store, retail value $2,500, and is not happy about that: “Yes, Alexander, it is a Terrible, Horrible, No Good, Very Bad Day.” She also has an earlier post).

Some reactions to my coverage of the threat to pre-1985 kids’ books, both at this site and in my new opinion piece at City Journal: famed sci-fi writer Jerry Pournelle (scroll to Feb. 12), Justin Taylor/Between Two Worlds, Series Books for Girls, Liberty Maven/DownsizeDC, Melissa Wiley, The Catholic Bubble, Carter Wood/ShopFloor, and Ella’s Deli. I also got a very nice note from Michael S. Hart, founder of old-text-preservation volunteer group Project Gutenberg, one of my favorite things about the Internet. And if you haven’t read Mark Bennett’s post at Defending People, linked earlier, go do so. (More: Dilettante’s Dilemma, Jeff Sypeck (test, toss, or evade?), Todd Seavey, International House of Bacon (“Again — the single worst piece of regulation in my lifetime”)).

Adapting a theme taken up by Deputy Headmistress, Love2Learn Blog has started a meme of “My Five Favorite Endangered Books” at risk of disappearing from the market under CPSIA. She makes the important point that even when pre-1985 children’s literature remains available in post-1985 reprint editions, the physical quality is often not the same: in many cases binding and paper quality is lesser, color illustrations missing or shrunken or rendered only in black and white, all of which can rob the works of their original magic. Wikipedia’s “Illustration” article is worth a look. Commenters at Common Room also suggest one group of public figures who might be prevailed upon to speak out against what the law is doing: namely, living authors of pre-1985 (and out-of-print/oop) kids’ books. It’s a group that would include some fairly big names and might get noticed in the press.

Public domain graphic: Grandma’s Graphics, Mabel Betsy Hill.

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CPSIA chronicles, February 13

Coping with strong winds

  • I’ve got a new opinion piece just up at City Journal on the pressure on thrift stores, inexpensive used-book dealers and other resellers to trash most of their stocks of pre-1985 children’s literature. Some of the ground it covers will be familiar to those who read Tuesday’s post at this site, as well as yesterday’s mention of CPSC commissioner Thomas Moore’s call last week (PDF) for some undefinedly large share of pre-1985 books to be “sequestered” until more is known about their dangers.

  • Several bloggers have pointed to this post at Semicolon Blog which reminds us that many post-1985 children’s books are also at risk of destruction, in particular those enhanced with decorative or amusement-providing elements in materials other than paper:

    My daughter works in a used bookstore. TODAY they pulled all the books from the children’s section that had any kind of metal or plastic or toy-like attachment, spiral bindings, balls or things attached, board books, anything that might be targeted under this law, and they very quietly trashed them all. I say “very quietly” because the bookstore had a meeting with employees and told them to be careful not to start a panic. If anyone asked what they were doing they were told to say that they were “rearranging their inventory.” No one was allowed to tell anyone about the new law, and no one was allowed to take any of the doomed-for-destruction books home or give them away.

    It should be noted that completely plain board books would be probably considered “ordinary” and thus safe to resell under the CPSC’s guidelines so long as they contain no special texturized elements such as rubber, foil, nubbly synthetic pretend-dinosaur-skin, genuine stink bugs encased in clear plastic, etc., etc.

    A lot of blogs have begun to notice the kids’ book issue, and I may round up highlights at some point. For now, start with Deputy Headmistress at Common Room;

  • Thanks to Esther of Design Loft for confirming something of which I’ve heard rumors for a while, namely that CPSIA bans ballpoint pens when designed or marketed for persons under 12, because of the irreducible minimum of lead in the mechanisms. Giving the kids adult ballpoint pens is still okay, but shipments of adult pens to, say, middle schools are at the very least under a legal cloud, and it is reasonably clear that pens with kid-oriented decorations on them have become unlawful to sell unless the decorations can be somehow expunged to do away with the kid appeal. A trade group called WIMA, the Writing Implement Manufacturers Association, is now petitioning for an exemption (PDF). I see that Deputy Headmistress is now on this in her usual thorough way;
  • Virginia Postrel’s superb piece at her Dynamist blog got a lot of attention, including links from leading bloggers Glenn Reynolds and Andrew Sullivan. She’s followed up with second and third posts, the latter of which asks:

    Why stop with products “primarily” for kids? Why not test everything a kid might encounter, from sofa cushions to bathroom mirrors?

    But maybe I shouldn’t say that. Public Citizen might get ideas.

  • More from Deputy Headmistress: “FedEx now requires a Certificate of Conformity as required by the CPSIA before they will accept any imported products,” with a roundup on motorcycles, substitute chemicals, and other topics. And I predict Public Citizen is going to rue the day it ever got the D.H.Mrs. on its case with its misrepresentations about the law;
  • Journalist Radley Balko blogs on the law at The Agitator (and also has kind words for my coverage, for which thanks). And Katherine Mangu-Ward reveals that she’s going to have an article on the law in an upcoming issue of Reason;
  • Who knew that the New York Times was so bad at covering the problems of the book, design and garment trades, and so good at covering crises in the world of motorcycles? But the proof continues;
  • Reader Adam L., fresh from this thread at PhillyBlog, writes:

    I was discussing your City Journal article with someone and
    they pointed out this Snopes article, which would seem to contradict
    yours. I am curious about your view.

    To which I wrote back:

    Snopes botched it. It’s true there was an erroneous rumor going around a few weeks ago that resellers would be legally required to do lead testing. The CPSC and others corrected this and pointed out that although resellers would be liable for selling anything over the lead ppm limit, they were not legally obliged to test, that is, they could take their chances. Hence Snopes is literally correct when it points out testing is not required, but flatly misses the wider story, which is that fear of liability is by no means an imaginary phenomenon since many older items (including some books) do flunk the new standards, even if posing no material risk to kids, and reliance on CPSC enforcement forbearance is chancy, especially since the CPSC is not the only source of enforcement for the law.

    Many people have written to Snopes in recent weeks asking them to correct their item, but they have done nothing.

    And then I pointed him to coverage at this site and elsewhere on thrift stores’ removal of books and other merchandise that pose no risk to kids but that cannot readily be known to comply with the law.

    I keep waiting for Snopes to correct, and they keep not doing so, even after the past week’s coverage of convulsions in the thrift store world. This is highly damaging because so many writers and editors check Snopes as a quick way to dismiss false alarms — I’ve done so myself many times, though I am less inclined to do so again. Is it time for someone to set up a “Shame on Snopes” page? (More: reader Meredith Wright wrote to Snopes and got a highly unsatisfactory response, reprinted in comments below);

  • Wisconsin bookseller Valerie Jacobsen charges Sen. Claire McCaskill (D-Mo.) with telling a “goofy whopper” about the safety problems that led up to the law’s passage;
  • Jacobsen also correctly pinpoints one of the key questions in the unfolding political struggle under CPSIA: will there be a hearing in Washington around which public and media interest might crystallize, and if so will it be under the full control of those who want to keep the law as it is, or will dissenting voices be heard too? She writes:

    Henry Waxman, chairman of the [House] Committee on Energy & Commerce and Bobby Rush, chairman of the Subcommittee on Commerce, Trade, and Consumer Protection, don’t want any reasonable amendment and are refusing to allow any discussion.

    They don’t want more hearings. They don’t want more talk. They want compliance. Waxman and Rush are the original sponsors of CPSIA, so you can see why they don’t want the damage they’ve caused to go on the record.

  • Attorney Sandra Ezell, Bowman & Brooke: “There are a lot of excellent products and excellent companies” that won’t survive CPSIA even though “they basically had no dog in the fight”. [Inside Counsel]

Public domain illustration: Ruth Mary Hallock, Grandma’s Graphics.

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CPSIA and vintage books

As readers are aware, the Consumer Product Safety Commission yesterday advised thrift stores and other resellers and distributors of used goods to discard (unless they wished to test for lead or take other typically unpractical steps such as contacting manufacturers) children’s books printed before 1985 and a very wide range of other children’s products, including apparel and playthings.
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According to a commenter at a very busy Etsy thread on the subject, stores are already beginning to act on this advice:

I just came back from my local thrift store with tears in my eyes! I watched as boxes and boxes of children’s books were thrown into the garbage! Today was the deadline and I just can’t believe it! Every book they had on the shelves prior to 1985 was destroyed! I managed to grab a 1967 edition of “The Outsiders” from the top of the box, but so many!

People who deal more systematically in children’s books for a livelihood now face unpleasant choices. From our comments section, Valerie Jacobsen:

We own a small, local used bookstore and have been selling used books on the Internet since 1995.

Last year we shipped over 4500 used books to nearly 50 countries. (Note that CPSIA not only regulates distribution and sale but export as well.)

Our bookstore is the sole means of income for our family, and we currently have over 7000 books catalogued. In our children’s department, 35% of our picture books and 65% of our chapter books were printed before 1985.

Many of our older children’s books have painted decorative titles and other cover embellishment, which decoration is an extremely small quantity and which may or may not contain over 600 ppm lead. (The limits for each accessible part or paint layer are going to 300 ppm in August and 100 ppm in 2011.)

We have read the legislation, called our representative, called our senator, contacted the CPSC (no answer), read all of the CPSC press releases, and contacted a lawyer. We still honestly have no idea what is legal to sell, but we cannot simply discard a wealth of our culture’s nineteenth and twentieth children’s literature over this.

And from the same commenter today, following up after the CPSC’s issuance of guidance to small businesses last night:

I wasn’t thrilled with the exception stating that we can sell pre-1985 children’s books as long as they are pricey vintage collectibles for adult collectors. Um, great, but most of our children’s books, even our older children’s books, are sold for children to read. And read them, they do.

We ran an audit in our bookstore today. We have about 7000 books catalogued. Of our children’s chapter books, about 65% are pre-1985. Of our children’s picture books, about 35% are pre-1985. Most of these sell for under $10 and are stocked as children’s reading.

As an ethical matter, I really can’t discard our cultural heritage just because the CPSC has decreed that books published through *1984* may or may not still form a legal part of the canon of children’s literature for our culture.

I was willing to resist the censorship of 1984 and the Fire Department of Fahrenheit 451 long before I became a bookseller, so I’d love to run a black market in quality children’s books–but at the same time it’s not like the CPSC has never destroyed a small, harmless company before. It’s a scary thing to know that what you are doing is a positive good for the community–and yet possibly, strangely illegal.

Also, I am comforted by no promises from Nord and Moore that are not clear consequences of CPSIA itself. The membership of the commission will probably be changed this year, and if Waxman gets much input into the new membership, we could end up with five first rate cuckoos.

To which commenter Carol Baicker-McKee responds:

Valerie, please, for the sake of children and history hang onto your books! I kept thinking this law would go away, but now I’m worried that an important part of our heritage is genuinely threatened. Many, many children’s books printed before 1985 are now out of print and do not exist still in a form that would make them easy to republish (printing plates are usually destroyed when a book goes out of print and older books did not have electronic versions). Many books, though of enduring value to children and social scientists, may not exist in conditions or simply don’t fall into categories that make them appealing to collectors, the one group besides packrats that I guess is still allowed to own them. Although organizations like the Gutenberg Project have been working to scan and preserve many older children’s books in electronic form, they can only target books that are no longer copyright protected, a very small portion of the children’s books printed since 1985.

If nothing happens to change this law soon, I promise I will spend whatever money and devote whatever space I can to buying up these older books. I’ll be happy to label myself a collector (and I’m subversive enough to leave the books lying around where kids might “accidentally” read them).

A “relabel everything as collectible” strategy is, however, of limited legal help to retailers, because the law provides that they are liable if they sell a product which will commonly be understood as destined for use by children, whether or not they label it as such.

Deputy Headmistress at Common Room, who has been a key CPSIA blogger, deals in second-hand books and has now pulled many of her listings off Amazon; she has a big roundup as well as this. She also points out, citing testing done by Jennifer Taggart, that color illustrations in some old children’s books do flunk the new and stringent rules set by CPSIA for lead content; this does not necessarily mean they pose any hazard to actual children, provided the children use the books for reading and visual enjoyment rather than as something to chew, lick, or devour holes through, Very-Hungry-Caterpillar style. There continues to be an extreme shortage (as in: zero) of cited instances of children in this country being in fact poisoned by the lead in old book illustrations.

Design Loft carefully examines some of the implications for libraries, fiscal and otherwise, of trying to CPSIA-proof pre-1985 holdings. For weeks now librarian and bookseller groups have been sounding the alarm about the law’s coverage of books: Library Journal, Publisher’s Weekly and earlier, and ZRecommends, the American Library Association and more (PDF), Rick Woldenberg. Perhaps this activism helped stimulate the CPSC’s “post-1985 = relatively safe” guidance, but that guidance has only served to underscore the corresponding message of “pre-1985 = not legally safe”.

More: Mark Riffey, Iain Murray, CEI “Open Market”. And the American Library Association, contrary to what was heard earlier, is now taking the position that the law does not apply to libraries unless it hears otherwise. I think at this point if I were them I would take that position too, wouldn’t you?

More: Reactions from Houston criminal defense blogger Mark Bennett at Defending People and again at Blawg Review #199, Carter Wood at NAM ShopFloor and again, David Foster at Chicago Boyz, Der Schweizer Narr (from Switzerland, in German), The Anchoress, Todd Seavey, Open Your Ears and Eyes, Blackadder’s Lair, John Holbo/Crooked Timber, 5 Kids and a Dog, International House of Bacon (CPSIA “the single worst piece of regulation in my lifetime”), Vivian Zabel/Brain Cells and Bubble Wrap, She’s Right, Joey and Aleethea, Dewey’s Treehouse, Sherry/Semicolon Blog, and Classic Housewife.

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CPSIA chronicles, February 10

RaggedyAnnAndyFalling
Major provisions of the Consumer Product Safety Improvement Act take effect today, and last night the responsible federal agency, the Consumer Product Safety Commission, released a 13-page set of guidelines (PDF, updated link) for manufacturers and resellers, who thus enjoyed a generous few hours in which to review its myriad of bewildering details before opening for business on Tuesday and risking fines and prison terms under the law.

In general, the rules appear to hold little that is surprising or new, and thus serve to confirm that the law will prove a disaster unless quickly revisited and reformed by the U.S. Congress. To take just one example, that of resale, thrift and consignment stores, the CPSC guidance advises that such stores discard, or refuse to accept donations of, a very wide range of children’s items unless they are willing to test the items for lead or call their original manufacturer — neither of which steps is consistent with the economics of an ordinary small thrift store. Included in the suspect list are most children’s clothing (because most of it has snaps, buttons, zippers, grommets or other closures with unknown/unproved metal or plastic content), most books that were printed before 1985 or that (even if more recent) include metal or plastic elements such as staples* or spiral binders; most playthings (dolls, balls, trains, toy cars, etc.), most shoes and hair ornaments, most sporting goods, outdoor play items and wagons, board games when including any plastic spinners, tokens or other items, all bicycles and tricycles in kids’ sizes, most decorations for kids’ rooms, nearly everything with metal or synthetic applique, most school, art and science supplies, and on and on. A much diminished assortment of t-shirts, pullover sweaters, slip-on canvas shoes, unpainted/untreated wood blocks, post-1985 glued-spine books and a few like items might remain on the shelves, but for the most part, it now seems clear, the U.S. Congress in its wisdom has decided to banish the business of kids’ resale to the realm of outlawry, even when carried on by non-profits with unpaid volunteers.

I’ll have more later in the day. In the mean time, let me mention that Forbes.com has now published, in altered form, my 50-state survey of business distress, legal irrationality, and protest arising from CPSIA, which had earlier appeared here (on Sunday) as a blog post. Go check it out now!

*Although the 13-page guidance booklet itself is silent on the subject of staples, note the footnote to section 5 in the separate guidance on lead limits: “The term ‘ordinary book’ in this context means one that is published on cardboard or paper printed by conventional methods and intended to be read. It excludes children’s books that have plastic, metal or electronic parts.”

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CPSIA: fifty stars and an asterisk

Fifty glimpses of the law and its impact, plus one at the end for D.C:

Hawaii: Kailua doll shop closes despite CPSC enforcement stay (w/video); Honolulu Honey Baby shakes leis and hula skirts in dismay;
Alaska: “Why you should care about CPSIA, and what you can do about it”.
Washington: Don’t miss this helmet anecdote from Whitman County;
Oregon: Milagros Boutique of Portland: “One of our local vendors has decided to throw in the towel rather than wait and see if the CPSIA is amended.”
California: Thanks to stay, Whimsical Walney will close down only temporarily, not permanently;
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Utah: “We will have to lock our doors and file for bankruptcy,” said Shauna Sloan, founder of Utah-based children’s resale chain Kid to Kid. Glory Quilts: “My longest blog post ever — and the most angry“;

Colorado: Emily Werner: “Today, I have diaper making to do. But I also am ready to stuff envelopes“;
Idaho: Squares of Flair, from Eagle, is on the Endangered Whimsy list. And if you’re thinking of making something bulky for children, like a furniture line, have you considered that none of the nation’s lead testing labs are anywhere near Idaho?
Nevada: Let’s hope Sen. Harry Reid is listening to constituent Molly Orr;

Wyoming: For Kooky Dolls it’s a distinctly non-kooky issue;
Montana: Mark Riffey’s Business is Personal (Rescue Marketing) has helped focus blog attention;
Arizona: “No way” Other Mothers resale stores “can be completely compliant”;
New Mexico: Fashion Incubator and National Bankruptcy Day;

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Oklahoma: Farewell jingle dresses, powwow dance clothes, buckskin leggings, concho belts and other Native American celebratory kids’ gear;
Texas: Distress sale at My Pink Zebra Boutique in Katy;
Kansas: Owner of Baxter Springs company that makes organic nursing pillows doesn’t think threat of being “hauled off to prison” is very constructive;
Nebraska: Omaha-connected Baby Leather Moks is on Endangered Whimsy list;
North Dakota: Sunrise Hill Decor, making blocks for play or display, is member of the Handmade Toy Alliance;
South Dakota: Question after our own heart: what would Laura Ingalls Wilder have thought of this law?

Iowa: I may know there are no phthalates or lead in that whimsical chenille baby bib, and you may know it, but have you documented it to the satisfaction of the wary retailer’s lawyers?
Minnesota: Things seem to be going great, with your product line featured on the Martha Stewart show. And then this happens (auto-plays video);
Missouri: Fleece scarves, going too cheap;
Illinois: List-keeping in Naperville. Oprah, please help!
Wisconsin: Owner of Jacobsen Books in Clinton is also worried about small-run adaptive devices used by special needs children;
Indiana: Rebecca Holloway gives ’em a deserved slamming; doll outfits and hair bows;

Ohio: Nicer-than-mass-produced diaper covers; Toledo Physical Education Supply takes a hit;
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Michigan: Brandi Pahl wonders: What are they thinking?; NARTS efforts couldn’t save Ionia resale store;
Arkansas: Closing of A Kidd’s Dream consignment shop in Conway doesn’t seem to have done much to change Sen. Mark Pryor’s mind;
Louisiana: The stay: “Hope but no solution“, kids’ Mardi Gras masks;
Mississippi: Sen. Roger Wicker is co-sponsoring DeMint reform bill;
Alabama: About that stay: “Read the fine print“; at least the pink whale got adopted;
Florida: “Many stores have fallen for the false report from the media that consignment stores are exempt.”
Georgia: Thank you, 11 Alive News, for listening to consignment sellers;

Tennessee: eBay seamstresses and Spanish baby gift sellers watching with concern;
South Carolina: Rock and mineral kits: do not eat contents unless you are at least 12 years of age;
North Carolina: Quilt Baby appeals to reason;
Kentucky: Menace of soft texture block set probably overrated;

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Maine: Any reform will come too late for Farmington’s Blessed Baby Boutique, shut down last weekend;
New Hampshire: As Commerce Secretary, d’you think Sen. Gregg could help?
Massachusetts: Rob Wilson of Ashland, importer of earth-friendly toys, has done much to spread the word, and impact on libraries noted in Newburyport;
Vermont: “Somewhere in the neighborhood of 95 percent of the merchants on our site would have to shut down,” says Michael Secore of Craftsbury Kids, with co-owner Cecilia Leibovitz a major spreader of word about the law, ditto Barre’s Polkadot Patch;
Rhode Island: Sens. Sheldon Whitehouse and Jack Reed “don’t seem terribly concerned“.
Connecticut: Stamford maker faces $400 testing bill for each $360 run of bibs and napkins, while paperback exchange owner in Bethel terms application of law “insane“;

New York: Issue has captured attention of book publishers, if not of certain newspaper publishers;
New Jersey: You made play food for kids out of felt? No wonder Rep. Waxman is so worried they’ll eat it!
Delaware: Wilmington store Yo-Yo Joe’s is a member of the Handmade Toy Alliance;
Pennsylvania: Going out on a limb, Somerset librarian contends most kids are old enough to know not to put the books in their mouths;
Maryland: The Baltimore Etsy Street Team is on the wing;
West Virginia: Project Linus, which does great charity work in the donation of quilts and blankets, puts on a brave face but its friends are worried;

Virginia: Back away from that ribbon hair bow slowly, now, and we’ll just wait for the hazmat team to arrive;

*District of Columbia: Almost forgot Washington, D.C.! Well, in Washington, D.C., it’s easy to get them to pay attention to problems like these. For example, less than a month ago, the offices of Reps. Henry Waxman and Bobby Rush were instructing colleagues that if they get calls from constituents “who believe they may be adversely impacted by the new law,” it was because the constituents had fallen victim to “confusion” and “inaccurate reporting”. The most important advocacy group behind the law, the implacable Public Citizen, has launched a new campaign to defend it from critics; it was PC’s David Arkush who in December notoriously assailed (scroll to #1) “hysteria” about the law on the part of crafters and small businesses, broadly hinting that they were serving as dupes and stooges of Big Toy interests — perish the thought that they might have figured the issue out on their own! Trial-lawyer-defense groups like the misnamed Center for Justice and Democracy (along with their friends) chimed in with the thought that critics of the law needed to “grow up” (no, don’t bother commenting). CPSC Commissioner Thomas Moore, hewing to a similar line, blames the ongoing ruckus on “orchestrated campaigns to undermine the Act” that “are sowing the seeds of confusion that are upsetting so many small businesses.” Lobbyists and trade associations for mass-production importers and merchandisers are eager to prove their cooperation with the powers that be: “We were early proponents of mandatory laws to require toy testing,” said a Toy Industry Association spokesman the other day.

Washington, D.C. always does so well at listening to the rest of the country.

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CPSIA: What will be enforced?


To cap a week of bewilderingly rapid developments, the Consumer Product Safety Commission yesterday announced new guidelines somewhat widening the scope of products that it will consider presumptively lawful to sell (unless a merchant is actually on notice that they contain hazards) when the law’s major provisions take effect three days from now, on Tuesday, Feb. 10. From a quick once-over — and all this is subject to correction by lawyers expert in the matter — the new guidelines appear most useful for the children’s publishing business and for makers of children’s garments and electronics, although fraught with difficult problems even for them; they do little to help many other businesses and small manufacturers affected by the law, and are most ominous as regards two major constituencies affected by the act, resale stores and public libraries.

First, a bit of background. In a February 4 post, “The Blame Game“, Rick Woldenberg has laid out the “noose-like” tightness with which the drafters of the CPSIA sought to prevent the CPSC from granting exemptions from the standards; they also provided that liability under the law would not be suspended just because a request for exemption was under consideration. In short, the CPSIA is purposely drafted to place many advantages in the hands of consumer groups or other litigants who might wish to challenge an exemption in court. Since the CPSC cannot be sure of having the last word — its attempt to carve out an exemption for pre-Feb. 10 phthalate inventories was just struck down — it would be incautious for producers or retailers to rely overmuch on its policy pronouncements, especially since, while it obviously has some discretion over its own enforcement efforts, it cannot prevent others (like state attorneys general) from bringing their own actions. One of those state AGs, Richard Blumenthal of Connecticut, just issued a press release crowing over the consumer groups’ phthalate victory and warning retailers, thrift stores presumably included, that “My office will take whatever steps are necessary [emphasis added] to ensure this phthalate ban is enforced.” (Note that while the phthalate ban was often argued for on the basis of the “precautionary principle” — even if no actual harm to humans has been proved, shouldn’t we alter the formulas for making the items to be safe rather than sorry? — Blumenthal & co. now seek to redefine millions of existing playthings in American homes as “toxic toys”.) It should be noted that private activist and lawyer groups often shop potential cases to state AGs’ offices, and in turn are made monetary beneficiaries of resulting fines and settlements (more on California’s CEH here).

In any event, the CPSC now edges into daring and legally uncharted territory by declaring that it will presumptively excuse not just untreated beige cotton, wool and other materials, but also dyed fabrics, as well as certain innocuous varieties of trim. This is of help to garment makers, who will still of course face possible legal exposure on their plastic buttons, metal snaps, and other nonfabric components. Electronics makers will benefit because the commission will adopt a more lenient view of when components are inaccessible, that is, not reachable by a child even after an effort to smash and break the object. Certain metals and alloys known not to contain lead will also be listed as presumptively safe. Finally, “ordinary” children’s books (it is not clear whether books with staples qualify) will be presumptively lawful if published since 1985.

Published since when?

That’s right, since 1985. It seems before that year some books were printed with lead-containing inks. None of the discussion I’ve seen of the issue seems to report that any American child has ever been injured by eating the ink in books. But the implication is pretty clear for books published before 1985: unless you’d care to put them through testing, title by title and edition by edition, it’s now legally safer to throw ’em out. One might propose vast bonfires in public squares, if not for the fear of violating air quality regulations.

It is not unusual for small independent booksellers to have in inventory still-unsold books of pre-1985 vintage. Perhaps these can be saved from landfills through the use of stickers reading, “Sold as a collectible only — under no account to be used by persons under 12”, as sellers of, say, vintage plastic dolls may do. But that doesn’t solve the problem for libraries. Their holdings include millions of pre-1985 children’s books, and if they stock them in children’s sections and allow them to be checked out at children’s request, they can’t very well play the “adult collectible” card. Beyond that, book sales are a major source of financial support for libraries, and inevitably include many of those ultra-terrifying, handle-with-lab-gloves pre-1985 children’s books.

Finally, thrift and resale stores remain in an unenviable position. Relatively few of the children’s goods they sell are composed entirely of materials on the hastily-assembled safe list. Most of the garments have snaps, zippers or plastic buttons; most of the sports items, board games and action toys have metal, vinyl or plastic components that might possibly (even if they probably do not) contain some admixture of lead or phthalates; who knows whether the jigsaw puzzles or spiral-bound art pads were printed before 1985, or, for that matter, would count as a “book”? Don’t even ask about bikes, trikes, strollers, car seats, backpacks, or things with rhinestones. And now you’ve got Richard Blumenthal and his allies vowing to “take whatever steps are necessary” — armed with those $100,000 penalties and those jail terms — against anyone who sells or resells items that a short time ago were a normal and, so far as anyone has been able to prove, harmless part of childhood.

Further discussion from Common Room (with particular attention to pre-1985 books: “I think the CPSC just turned my library into contraband. Or something.”) and Ian at Musings of a Catholic Bookstore. Rumor has it that CPSC will issue further guidance on thrift stores and resellers on or before Tuesday, but as Common Room cautions, “There’s a Difference Between a Policy and a Law“.

P.S. Note, incidentally, that the phthalate ban applies to a different (and generally narrower) range of products than does the lead ban: in particular, playthings and child care items. Peas and Bananas has reprinted the details (& welcome Publisher’s Weekly readers).

Public domain image: Grandma’s Graphics, Mabel Betsy Hill.

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