Is relief in reach for small business owners under the CPSIA?

Relief may be forthcoming for some business owners under the Consumer Product Safety Improvement Act (CPSIA).  If you aren’t caught up on the CPSIA and its ramifications yet, I urge you to read about the sweeping change coming February 10, 2009.  The forthcoming lead content limit that will be applied to all children’s products under the Consumer Product Safety Commission’s (CPSC) jurisdiction has people concerned that they will be forced out of business.  (If you want to catch some of the concerns, just search CPSIA in twitter and you’ll see.)

But, we may see some relief. An article from ABC News in Colorado reports that the CPSC has been flooded with calls and emails from concerned small business owners.  But, importantly, it quotes Scott Wolfson, deputy director of the CPSC, as saying “we are very sensitive to the concerns they have and this week we are starting to deliberate and think about, ‘Does the law provide us with some options?’ or ‘Is the law written in such as way where we have to enforce it as is?”

And that certainly indicates that the efforts of groups such as the Handmade Toy Alliance, the Real Diaper Industry Association and Fashion Incubator are having some success.  More information on efforts to reform the CPSIA are at CPSIA-Central.

But CPSC’s hands may be somewhat tied. Why do I say this? Because one of the biggest complaints has been about the retroactive component of the lead content ban.  On February 10, 2009, the CPSIA establishes a lead content limit of 600 parts per million (ppm) for all children’s products.  It does this by defining those products that don’t meet the 600 ppm limit as being “banned hazardous substances” under the Federal Hazardous Substances Act (FHSA).  (See CPSIA section 101(a).)  The FHSA prohibits the introduction or delivery for introduction into interstate commerce of a banned hazardous substance.  (15 USC section 1263.)  Also, CPSIA section 216 makes it unlawful for any person to “sell, offer for sale, manufacture for sale, distribute in commerce, or import into the US” any product that is a banned hazardous substance.

So, in other words, the CPSC believes that it can’t go contrary to these provisions.  I know that there are lawyers out there advocating that the CPSC’s position is wrong. But, at least in the CPSC’s opinion, the fact that children’s products out in commerce – whether on retailers shelves or in thrift stores – are banned hazardous substances if they contain more than 600 ppm lead on February 10, 2009, regardless of when they were manufactured has to be fixed by Congress.  The CPSC’s General Counsel has made her opinion pretty clear on this issue.

But the CPSC has some options.  It can exempt by regulation products or materals that don’t result in absorption of lead or have another adverse impact on public health or safety.  That the basis for the natural materials exemption.  It could look at more products or materials under that provision.  And I’m sure there are more options.

But at least the CPSC is considering the impacts.  So keep pestering the CPSC.  And pester your elected officials.

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