It figures, doesn't it? You wait decades for the Consumer Products Safety Commission to finally get some legislative spine, and what happens? Their brand new lead testing regulations drive every maker of children's products--except for Mattel and Dorel--out of business on February 10th, 2009. At least that's what I'm hearing.
Over the last couple of weeks, I've gotten urgent emails from all over, warning of dire consequences for everyone from wooden toymakers to etsy.com sellers to 50-year-old educational toy companies when stricter lead paint and lead content rules for children's products passed this summer as part of the Consumer Product Safety Improvement Act [CPSIA] take effect.
It's been hard to figure out what the real potential problem is. As with any new legislation, a lot of the devil is in the deep, deep details, the rulemaking stage where an agency like the CPSC translates Congress's language into day-to-day regulations. With the CPSIA, there are many definitions, exceptions and testing and certification procedures to be worked out, but that hasn't stopped the clock from ticking down toward Feb. 10th, when, uh, something lead-related takes effect.
For the shortest summary of the lead situation, Melanie Trottman's story in the Wall Street Journal is probably the best place to start.
Nancy Kathleen Fasanella's Nov. 21 blog post, National Bankruptcy Day is a more impassioned call to action.
Now the CPSIA story's been picking up speed this week, as members of the hurriedly created Handmade Toy Alliance started letting their customers know, as did a few crafters and sellers on etsy.com--a marketplace which could theoretically be stripped bare of all products for kids 12 years old and under if the law is implemented as feared. Mothering Magazine picked up on it, and today, so did BoingBoing.
Basically, the February disaster is being caused by the CPSIA's newly expanded lead testing requirements, which cover all childrens products--all, clothes, toys, furniture, everything--be tested for lead, not just in paint, but in all accessible parts of a product. Clothing makers are saying that every color and pattern variation must be tested separately. Toy makers are not clear what constitutes an accessible part, and even the testing methodologies are not set yet. As a result of this uncertainty, the reported cost of each test varies from $150-500 for clothes to $1500-3000 for toys. [Of course, now I see the HTA has rounded that up to $4,000/toy.]
The thing is, for the lead testing, Cheryl Falvey, theCPSC's General Counsel, ruled a couple of months ago [pdf] that the Feb. 2009 CPSIA testing requirements would apply to all products sold from that date, not all products manufactured from that date. In other words, product in the pipeline and in transit and on shelves right now--to the extent it has not been tested and certified as lead-free by third parties--would be technically illegal on Feb. 2009. Never mind that the vast majority of it is presumably lead-free. [update: I didn't get this quite right, see the comments for an expert clarification]
Lawyers for some unnamed toy manufacturers presented what seems to me [and IANAL, of course] to be compelling and thorough arguments that the CPSIA lead testing rules were only intended to apply [pdf]--or at least, the court-recognized practice in such cases is to apply them--proactively, i.e., going forward, covering items manufactured after Feb. 10th.
What's crazy--or crazier, since this whole thing seems like a morass of uncertainty and conflicting interpretations of a confusing and even self-contradictory piece of legislation--is that the Falvey ruled exactly the opposite way on the CPSIA's provisions for phthalates. [pdf] That ruling prompted Senators Barbara Boxer and Diane Feinstein to issue angry statements denouncing "this Administration" and their "pathetic and transparent attempt to avoid enforcing this law."
Never mind that Falvey appears to be a Hillary Clinton supporter. Boxer & Feinstein have just a few more weeks to make political hay out of this mess before a president of their party inherits it. And unless something is done to clear it all up, it'll be the Obama adminstration who gets credit for National Bankruptcy Day.
Which seems like the inevitable result, since the CPSC as yet has no additional resources to decide implementation of CPSIA. According to a Hong Kong Trade Development Council summary of a CPSC public meeting in September, the agency said it did not receive any new funding or staff yet, it recognizes that CPSIA is "incredibly complex," and "CPSC also does not know full impact of the law." [emphasis added]
Sounds like a lot of fun, unless there happens to be a severe recession going on, manufacturers and retailers suffer from poor holiday sales, and then they face crushingly expensive new testing requirements. Oops.
Coming up next: a look at what might realistically be done about the CPSIA and its impact on juvenile product manufacturers of various sizes. And hey-ho, a look at what the industry trade groups, including the JPMA, the Toy Industry Association, and newcomers like the HTA are doing about CPSIA.
And after the jump, a few links of stuff that's been sitting in my browser for almost two weeks now while I waited for the JPMA to get return my calls and emails.
CPSC-hosted current roundup of CPSIA information [cpsc.gov], including: