The CPSIA: Good in Theory, Hurting Small, Favorite Green Businesses in Practice

On August 14, 2008, President Bush signed into law the Consumer Product Safety Improvement Act (CPSIA).  It was drafted as a toy safety law in response, at least in part, to the numerous recalls in 2007 for lead in children’s toys and jewelry.  It was also drafted in response to the tragic death of a 4 year old after ingesting a charm that was almost pure lead.

It was designed to be a toy safety law, but its reach is much, much broader.  And, like all broadly written, reactionary laws, it has very significant, it appears largely unforeseen consequences.  Like perhaps putting out of business thousands of small manufacturers of children’s products, including some of my favorites – the small manufacturers of reusable cloth diapers, natural wood toys, handcrafted costumes, and innovative children’s products.

How can a law that was designed to protect us against the hazards of lead and phthalates result in closing the doors of the very companies that sell the alternative products I love?  

Well, let’s talk a little bit about the law.  Now, the CPSIA has several different provisions.  I’d like to focus on one.  The law creates a new standard for lead in children’s products.  In theory, a standard for lead in children’s products is great.  Everything I could ever want, especially since I routinely find lead in children’s products.  

The problem is in the implementation and testing to demonstrate compliance with that standard.  There are two groups of produts to which this standard applies:  the inventory in existence as of the date the standard becomes effective, and those products manufactured after the date the standard becomes effective.  The 600 parts per million (ppm) standard for children’s products becomes effective on February 10, 2009.  (Just a note – there is a separate standard for lead in paints and coatings.) 

First, let’s talk about what products are covered.  The standard applies to children’s products.  Children’s products are defined to be any product intended to use or marketed to children under the age of 12.  Clothing.  Toys.  Dress up costumes.  Sleeping bags.  Tableware.  Virtually any product that you can think of under the CPSC’s jurisdiction that is intended for use by children under the age of 12. 

Existing Inventory 

Existing inventory are those products already manufactured as of February 10, 2009.  The products on store shelves, on trucks and in boats, and sitting in warehouses.  According to an opinion issued by Cheryl Falvey, the Consumer Product Safety Commission’s (CPSC) general counsel, as of February 10, 2009, all children’s products that do not achieve the 600 ppm standard are considered banned hazardous substances and cannot be sold or distributed in commerce.  She states “[i]f children’s products with more than 600 ppm of lead are to be treated as banned hazardous substances, then the ban is applicable to that at the effective date of that treatment regardless of the date of manufacture of the product.”  Her conclusion?  “Products with more than 600 ppm of lead must come off the shelves no later than Febarury 10, 2009, 180 days after enactment.” 

So, this means all existing inventory as of that date must meet the standard or must be destroyed.  There is a sense of unfairness, since the law is retroactive.  You have to realize that the Spring lines have already been manufactured and shipped.  Many were manufactured and shipped before the law was even signed.  To be honest, I’m wondering if the retailers will seek a bailout.  Do you remember that after chlorinated Tris was banned, President Reagan signed legislation allowing companies to seek federal reimbursement of more than $50 milion in losses? 

Determining compliance for existing inventory is hard.  How do you demonstrate compliance for those products in inventory on February 10, 2009.  Just simply testing all of the products in inventory is expensive, and duplicative, if 10 retailers test the same product.  Third party certification is not required for this inventory, but a person or company will need to know if the products comply with the law.  The sellers at Etsy are up in arms.  So are the sellers on eBay.  There’s a blog out there focused on the CPSIA calling February 10, 2009 National Bankruptcy Day.  The Fashion-Incubator’s forum on the CPSIA has been opened to non-members. 

Part of the problem is that there is a lot of misinformation floating around about the CPSIA.  And one of the pieces of misinformation is that all inventory will have to be tested by an accredited third party at an enormous cost.  And yes, third party testing is extremely costly.  It would be prohibitive for most to complete 3rd party testing for existing inventory.  But it is not accurate to say that 3rd party testing is required for existing inventory – it is not required.  One option is to use an XRF analyzer as part of a reasonable testing program for existing inventory and to issue general conformity statements (for manufacturers).  The CPSC specifically stated this is an option in the FAQ’s for the CPSIA.  (Shameless plug – I can use my Niton XRF Analyzer to test existing inventory for lead.) 

But determining whether inventory meets the lead standard is extremely burdensome and very difficult for retailers, distributors and manufacturers.  Without testing, you really cannot know if a particular product meets the standard.  Plus, this doesn’t even address the financial implications related to loans on inventory – inventory which may not be worth anything. 

New Products 

The second part of the requirement is that all products must be tested by an accredited third party.  This provision applies differently because the CPSIA states that the testing requirement “shall apply to any children’s product manufactured more than 90 days” after the CPSC publishes a notice of the requirements for accreditation for 3rd party testing.  That requirement will apply 90 days after the CPSC publishes its notice – which the law requires that it do for the August 2009 lower standard of 300 ppm lead for children’s products no later than May 16, 2009. 

Until the notice is published, according to the CPSC’s Frequently Asked Questions, children’s products manufactured after 2/10/09, will need a general conformity certification based on a test of the product or a reasonable testing program for products.  (Shameless plug – which is good news for me since my Niton XRF Analyzer can be used to satisfy that requirement according to the CPSC.  So, if you need assistance testing your inventory, I do offer consulting & testing services.) 

But once that 3rd party testing is required, manufacturers, even small manufacturers, are going to have a very hard time.  That testing is expensive.  And how the testing must be performed makes it extremely expensive.  For a very clear explanation of what needs to be testing, what SKUs have to do with it, and unit v. batch testing, read Greco Woodcrafting’s Weblog entitled National Bankruptcy Day

But think about it – does it make sense for an organic cotton t-shirt maker without any decals or logos that might have lead test for lead?  Or a manufacturer of woods toy finished with beeswax test for lead? 

Selecta Spielzeug has already announced it is pulling out of the US market and will cease distributing as of December 31, 2008.  Its decision is based on cost – it cannot afford the new testing requirements for its beautiful wood toys finished with beeswax.  Z Recommends has the details on Selecta’s decision.  Plus, Z Recommends points out those Selecta products previously positively reviewed. 

HABA will not sell its jewelry in the US any longer.  

But I’m more concerned about the small manufacturers profiled at the Handmade Toy Alliance.  Like Fuzbaby, who will not be able to afford testing its resuable cloth diapers.  Or the absolutely adorable Kallisto Organic Bears from Challenge & Fun.  And lots of others too. 

I’ll be posting over at Healthy Child Healthy World on the phthalate portion of the CPSIA next. 

If you are inclined to be an activist, and I think we all need to be to protect the small manufacturers, including work at home moms, write to your legislators to address these implementation problems with the CPSIA.  Handmade Toy Alliance has tips for taking action.  Or submit letters using this link

Here’s the thing – no sane person wants unsafe children’s products.  But tell your legislators that products made from materials unlikely to contain lead should be exempt, such as unadorned textiles and beeswax finished wood.  If you need some pointers and some talking points, Nature’s Child has a great outline.

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