Challenge & Fun

URGENT: Last Day to Submit Comments to CPSC (Component Testing)

Today is the last day to submit comments to the CPSC regarding the appropriateness to allow certified or third party tested components to be used in lieu of costly final product testing. If you haven't done to, I strongly encourage you to submit your comments now. Take 1 minute and click here to access a prepared letter that all you have to do is add your name and address and click send. What could be easier? Do it now, the day will soon be over.

Here is a copy of the letter I submitted:

Mr. Todd Stevenson,Office of the Secretary

I am writing to express my very strong support for an interpretation of the third-party testing requirements under Section 102 of the Consumer Product Safety Improvement Act (CPSIA) that would permit testing and certification of component parts at the component level, rather than after the product is finished.

My company is an importer of natural toys, and we manufacture two wooden products here in Massachusetts. If we are forced to third party test each SKU rather than use certified compliant components, or test those components for compliance prior to production, our product range will plummet from 1,000 SKUs to less than 150. This will have serious implications on the viability of our business. We are not unique; other companies would face the same challenges, with many exiting the children’s products market, or closing down altogether.

As a company that has been dedicated to the quality and safety of its products since our inception, we feel strongly about ensuring product integrity. Among other things, we have been selling organic cotton dolls since 2001, before organic was in style, because of our concern about harmful pesticides (not lead, since lead is not found in cotton of any kind). We offer wooden toys painted with water based paints that meet a much stricter lead standard than even the CPSIA. We have done this long before toy safety was in the news, and have done it because it was the right thing to do.

It would be a natural, and reasonable practice to base CPSIA compliance program on the internationally recognized certifications of our materials, whether they be organic cotton (GOTS Certified), or otherwise. Where such certifications are not available, the manufacturer should have the option to have such materials third party tested prior to manufacture.

The idea that final products should be tested out of a fear of uncertified (“tainted”) materials being substituted assumes that since one large company substituted tainted materials, there is a reasonably risk that the rest of the children’s products industry are likely to do the same.

First, the vast majority of materials covered by the CPSIA do not even have a risk of containing lead in the first place. Second, with very few exceptions, the children’s products industry has proven itself capable of controlling its supply chain and the manufacture of its products. With the added awareness, rules, and disproportionate & draconian penalties for any error, it is highly unlikely that a company would make such substitutions.

Second, even if one takes the faulty position that the risk of substitution remains, testing based on the final product is the wrong solution. This is because, the very companies the CPSIA is trying to prevent from conducting non-compliant substitutions, are the same unscrupulous companies that could just as well substitute "tainted" finished products into the market.

It does not make sense to impose such extreme & expensive rules on businesses when those rules do not in any way ensure a different outcome versus more reasonable testing & certification procedures.

Additionally, component level testing affords companies the ability to correct product safety defects in a timely and inexpensive manner. If a company finds a safety flaw in a component, that component can quickly be substituted out with a safe alternative. But if testing is required to be done at the finished product stage, defective components will lead to a defective finished product.

Another critical argument in favor or component testing include the environmental impact of testing & destroying innumerable final products using harsh chemicals which then enter the environment.

It will also ensure the availability and safety of one of a kind and other low volume products which are critical to ensuring creativity and product diversity in the life of a child, and the survival of cottage industries so vital to the American economy and way of life.

Allowing the testing of components is a simple, yet vital, step in the right direction to save tens of thousands of companies negatively affected by the CPSIA. I urge the Commission to quickly adopt and promulgate a common sense rule that permits component level testing and certification under Section 102.

Sincerely,

Robert Wilson
Vice President, Challenge & Fun, Inc.
Founder & Administrator, CPSIA-Central.Ning.Com
Member, Handmade Toy Alliance

NAM Petition to Delay Feb 10th Deadline

Hot off the press...here is the NAM Petition. Please make sure your Congressman knows you support this petition along with the long list of signatories below.

NAM CPSC COALITION

January 28, 2009

VIA ELECTRONIC MAIL

Office of the Secretary
U.S. Consumer Product Safety Commission
4330 East-West Highway, Room 502
Bethesda, MD 20814-4408

Re: Request for Emergency Stay of Effective Date (CPSIA §101(a)(2))

Dear Mr. Stevenson:

On behalf of the Consumer Product Safety Commission Coalition of the National Association of Manufacturers (NAM CPSC Coalition), and the undersigned parties to this letter (hereinafter referred to collectively as (“the Requesters”), we respectfully request the Commission to issue an immediately effective emergency rule staying the effective date of limits on lead content in accessible parts and components in children’s products established under Section 101(a)(2) of the Consumer Product Safety Improvement Act of 2008 (“CPSIA”) (Pub. L. 110-314). The length of the requested stay is 185 days, or until 90 days after final comprehensive rules and interpretative regulations implementing Section 101 are issued, if later. We do not think that when it adopted the deadlines in the CPSIA Congress realized or intended to effectuate a massive economic dislocation at a time when so many businesses are teetering on the edge of financial ruin and we are suffering the largest job losses in decades.

The current effective date of February 10, 2009 for the new lead content requirements is less than two weeks away. The law requires manufacturers and importers of children’s products to issue certificates that newly manufactured or imported products comply with the lead content requirements. In addition, under an opinion issued by the CPSC General Counsel, previously manufactured products in existing inventory which do not comply with the lead content limit for accessible parts may no longer be distributed or sold.

It has become clear that compliance with these new lead content requirements will be a practical impossibility for thousands of manufacturers, distributors, retailers, and resellers on February 10, 2009. While the Commission has issued several notices of proposed rulemaking regarding the interpretation of which parts and components are considered to be accessible and thus subject to the lead content limits, proposing exclusions for a limited number of materials, and proposing procedures and criteria for making additional exclusion determinations, the comment period on these proposed regulations will extend beyond February 10, 2009. These rulemakings clearly cannot be completed until well after the current effective date. Moreover, realistically it will be many months before the Commission is likely to act on petitions for permanent exclusions. In practice, many types of materials or products that will not expose children to harmful amounts of lead and are thus perfectly safe, based on reasonably foreseeable use and abuse conditions, will as a result be banned due to the inability to process petitions for permanent exclusions before February 10, 2009. We are aware that some industry sectors are preparing petitions for temporary exclusions and we urge you to grant these petitions before February 10, 2009. Experience under appropriate temporary exclusions can provide additional, useful information for the Commission when it begins to review petitions for permanent exclusions after that process is finally established.

In addition, the Commission has yet to even propose specific designated test procedures for lead content for any materials other than metal in children’s jewelry and lead in paint, or to clarify the critically important role of component testing within a regime of third party testing of children’s products by accredited laboratories. Manufacturers and retailers of thousands of children’s products containing parts made of various types of plastic, rubber, wood, composites, paper, fabric and other materials have no designated test method under which to determine the accessibility or lead content, if any, of these products or components thereof. In addition the definitions of component parts subject to regulation have yet to be finally determined.

Given the impossibility for many manufacturers and retailers to determine with any degree of confidence that all accessible parts and components of a particular children’s product do not contain lead above 600 ppm, the clear prospect is for massive disruption in the consumer product distribution and retail system beginning on February 10, 2009. Large amounts of safe product inventory whose compliance with the lead content requirements cannot be confirmed will be pulled from retail inventory or withheld from distribution. In many cases retailers are requiring the manufacturer to take the product back and offer credit for the unsold goods. Aside from the immediate financial hardship of handling product returns – which may amount to hundreds of thousands of dollars in particular cases – once inventories are unsalable, lines of credit to retailers or manufacturers secured by financial institutions may be rescinded, leading to the potential for widespread bankruptcies.

The chaotic application of yet-to-be established legal requirements to current inventories at retail potentially threatens to render obsolete billions of dollars of legally produced products already introduced into interstate commerce. In addition, the threatened wholesale destruction on February 11, 2009 of inventory which cannot be verified as complying with newly established requirements could inflict additional damage to the U.S. economy and threatens the ability of small American manufacturers and retailers to remain in business. The environmental impact of widespread destruction of unverifiable merchandise should also be considered. Further, companies have reported that the testing for CPSIA lead levels is different from the testing required by the Environmental Protection Agency (EPA). Thus, in addition to destroying merchandise that may in fact be CPSIA compliant but is unverifiable, companies are also incurring costs to determine how to properly destroy that merchandise.

Considering the breadth of potentially affected types of children’s products - shoes, apparel, bedding, jewelry and accessories, books, educational materials, electronics, luggage, toys, housewares, sports equipment, bicycles, recreational vehicles and home furnishings - clearly developed final regulations are first necessary to enable compliance determinations and effective enforcement. Otherwise tens of thousands of businesses and hundreds of thousands of employees could be adversely impacted. This position is consistent with recent correspondence from Members of Congress to the CPSC indicating that they did not intend such consequences from a chaotic implementation of the CPSIA. This developing situation in which products which may ultimately be determined to be in full compliance with the lead content requirements are nonetheless pulled from shelves and in some instances even destroyed in the middle of the worst economic environment for businesses and consumers in decades clearly does not serve consumer safety, the welfare of the public at large, or market stability.

Under Section 3 of the CPSIA, the Commission has authority to “issue regulations, as necessary, to implement this Act and the amendments made by this Act.” The Commission should exercise its authority to grant the requested delay. Under the doctrine enunciated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-45 (1984), a regulatory agency is permitted to adopt a reasonable interpretation of a statute that Congress entrusts that agency to administer. In choosing among reasonable interpretations, an agency may consider their policy implications. Chevron, 467 U.S. at 843. Here, substantial policy implications point in favor of staying the effective date of Section 101(a)(2) until the final substantive rules and interpretative regulations can be established and regulated entities can, as a practical matter, determine whether particular new and existing products are in compliance with the lead content requirements.

As we noted, Section 3 of the CPSIA reaffirms that “[t]he Commission may issue regulations, as necessary, to implement this Act and the amendments made by this Act.” Moreover, the CPSIA adds, in Section 101, that a product containing more lead than the new limits “shall be treated as a banned hazardous substance under the Federal Hazardous Substances Act,” § 101(a)(1), and that a ban or rule pursuant to Section 101(a) “shall be considered a regulation of the Commission promulgated under or for the enforcement of section 2(q) of the Federal Hazardous Substances Act,” § 101(g). The Federal Hazardous Substances Act, in turn, requires the Commission in classifying an article or substance as a banned hazardous substance to craft a regulation that “imposes the least burdensome requirement which prevents or adequately reduces the risk of injury for which the regulation is being promulgated.” 15 U.S.C. § 1262(i)(2). Congress also left it to the CPSC to develop, as part of the overall regulatory scheme, regulations reasonably defining the scope of products and components subject to the regulation itself; the exclusions to be afforded, as mandated by Congress, to inaccessible components, excluded material and electronic components (CPSIA Section 101(b)); and the applicable test methodology to be employed. None of these requirements have yet been finalized for lead “content.”

The Administrative Procedure Act, 5 U.S.C. §553(b), authorizes the Commission to exclude rules from otherwise applicable notice and comment procedures where the agency for good cause finds such procedures are impractical or contrary to the public interest. Although well intentioned, piecemeal interpretative rulemakings that have a substantive impact on the marketplace require adherence to such due process procedures . Given the short time until the February 10, 2009, effective date and the absence of comprehensive final regulatory guidance on compliance, however, notice and comment procedures in this particular case are both impractical and contrary to the public interest and the Commission should issue an immediate final rule extending the deadline.

The Requesters fully support government efforts under the CPSIA to safeguard consumers and reduce their exposure to lead or other materials that could affect their health and safety based on sound scientific principles. However, retaining the current February 10, 2009 effective date for the lead content limit in accessible components will create massive marketplace confusion and business disruption without any commensurate benefit to consumer safety.

The business community appreciates the enormous effort the Commission staff has made since last August to complete the many rulemakings and other tasks that Congress required under the CPSIA. However, you and we are faced with an impossible situation. Time is needed for the Commission to complete the many rulemakings necessary to provide clarity on the Act’s requirements. Requesters hereby respectfully request that the Commission, on an emergency basis, use the discretion afforded it to issue an immediately effective rule delaying for 185 days, or until 90 days after final comprehensive rules and interpretative regulations implementing Section 101 are issued, if later, the effective date of lead content limits for accessible parts and components in children’s products.

Respectfully submitted,

American Apparel & Footwear Association (AAFA)
American Fiber Manufacturers Association
American Home Furnishings Alliance
American Specialty Toy Retailing Association
Amusement & Music Operators Association
Association for Safe Glass and Ceramicware
Association of American Publishers
Association of Home Appliance Manufacturers
Bicycle Product Suppliers Association
Book Manufacturing Institute, Inc.
California Fashion Association
California Retailers Association
Coalition for Safe and Affordable Childrenswear, Inc.
Coalition for Safe and Responsible ATV Use
Consumer Electronics Association (CEA)
Consumer Electronics Retailers Coalition (CERC)
Craft Yarn Council of America (CYCA)
Fashion Incubator Association
Fashion Jewelry Trade Association
Footwear Distributors and Retailers of America
Georgia Retail Association
Gift and Home Trade Association
Greeting Card Association
Handmade Toy Alliance
Illinois Retail Merchants Association
INDA, Association of the Nonwoven Fabrics Industry
Information Technology Industry Council (ITI)
International Association for the Leisure & Entertainment Industry (IALEI)
International Association of Amusement Parks & Attractions
International Sleep Products Association
IPC – Association Connecting Electronics Industries
Louisiana Retailers Association
Maine Merchants Association
Minnesota Retailers Association
Missouri Retailers Association
Motorcycle Industry Council
National Association of Manufacturers
National Bulk Vendors Association
National Council of Textile Organizations (NCTO)
National Retail Federation
National Textile Association
New Jersey Retail Merchants Association
Ohio Council of Retail Merchants
Outdoor Industry Association
Pennsylvania Retailers’ Association
Printing Industries of America
Promotional Products Association International
Real Diaper Industry Association
Retail Association of Nevada
Retail Industry Leaders Association
Retail Merchants of Hawaii
Retailers Association of Massachusetts
Retail Merchants Association of New Hampshire
Secondary Materials and Recycled Textiles (SMART)
Specialty Graphic Imaging Association
Specialty Vehicle Institute of America
Sporting Goods Manufacturers Association
The Hosiery Association
The International Snowmobile Manufacturers Association
The Juvenile Products Manufacturers Association (JPMA)
The National Cotton Council
Toy Industry Association
Travel Goods Association (TGA)
United States Association of Importers of Textiles and Apparel
U.S. Chamber of Commerce
Virginia Retail Merchants Association
Washington Retail Association

Update From New York

I recently received an email from a customer (and member of CPSIA-Central) placing an order and noting I had not been very visible on CPSIA-Central lately.  While this is a correct observation, I want you to know I haven't been absent from the cause.  As I get sucked into my trade show season, I am having to balance by CPSIA activities with my actual work.

From the perspective of CPSIA-Central, I am gratified to see that many people have stepped up to the plate and are participating by posting blogs, news links, commenting in groups, etc. 

For your information, here are some of the things I have been working on and some of my random thoughts:

NY Gift Fair:  I have been talking with other exhibitors and some attendees about CPSIA. All the exhibitors I spoke to know about CPSIA.  Although, I know that others are in denial (Jill from Craftybaby has reported this to me).  Some are "compliant already" others are struggling.  All agree the law is ludicrous. Most of those that are "compliant already" seem content to go on with their business without much of a fight.  Others don't seem to be aware of our fight.  I spoke to Hansa (they make cool, likelike stuffed animals) and they say they are compliant but are interested in joining our cause and helping at our Toy Fair CPSIA booth (which is good...we are still looking for more volunteers).

I have created a flyer which I have given go some exhibitors, and will distribute tomorrow morning so it is there when exhibitors arrive in the morning.  I will post it in the NY Gift Fair group if you want to see it, or adapt it for your own use. The important aspect of it is for people to realize there is a fight going on and there are things they can do.  We are not helpless... AND things are progressing.  We need to continue to speak up and invite others to speak up.

I also spoke with show management, but I don't know if they are committed to joining the fight.  At least it won't be a surprise for them when 50% of the handmade & kidstuff section doesn't renew their booth space.

I was able to make contact with the Gift & Home Trade Association (thanks to Cathy of the NY Gift Show management).  They agreed to be signatories on the new NAM petition due to be released at any time. 

I spoke with a buyer that had been in Atlanta and he said that many (I think he said as many as 30) companies at that show told him they are not compliant, and some said they simply cannot become so.  Interestingly, one of those companies is a mass producer of stuffed animals, and based on their tight margins, even they will not be able to afford the testing.  This affects all types of companies.  All of which contribute(d) to our economy.

I also heard that the Kidstuff section in Atlanta was missing many exhibitors, with booth spaces draped over, and other exhibitors being asked to expand into adjacent booth spaces.  Due to the economy, or the CPSIA?  Probably a good dose of both.  As for the NY Gift Fair, it has been very slow show.  Not too surprising considering the economy.  But...do we really need the CPSIA to exacerbate the slowdown?

I have also been communicating with the my Congressman's staffer responsible for Commerce.  I have expressed my disappointment with the letter I received from James McGovern where he praised the Waxman letter to CPSC calling for them to clarify the CPSIA.  I told her that much of the CPSIA is all too clear.  What we need are reforms, and that requires an act of Congress.  We talked further about the coming February 10th deadline, and I explained about the economic disaster awaiting many companies.  Eventually she agreed that she should arrange a call for me with her "boss." 

The important thing to take from this isn't the details of what was said, it is the importance of identifying and developing regular correspondence with Congressional Aides (Commerce), and their counterparts that work for your Senators.  Our best chances of influencing policy is by discourse with those that have influence, and these aides typically influence their bosses.  Since most of us are not able to have a regular discourse (2 way conversation) with our Congressmen & Senators, this is a very good approach.

CPSIA Blogin---This Blog Entry Should be Posted across internet today

As parents and concerned citizens I’m sure most of us at one time or another have been confronted with the question of lead poisoning. But have you asked yourself what your government is doing to protect your children from lead contained in toys? The answer? They're banning toys, taking books from schools and libraries, hurting low income families, killing entrepreneurial spirit and risking putting the economy in an even greater depression than we've seen in decades. I'd like to introduce you to their solution: the CPSIA. Do you know about the CPSIA? No? Then I ask you to take a few minutes to find out about it. The CPSIA stands for Consumer Product Safety Improvement Act, a new set of laws that will come into effect on 10 February, 2009 and will impact many, many people in a negative way. Make no mistake, this is very real. View it for yourself. If Forbes, the American Library Association and numerous other media are paying attention, perhaps you should too. How will these new laws affect you? Well, here are a few examples: To the Parents of Young Students: Due to the new law, expect to see the cost of school supplies sky rocket. While those paper clips weren't originally intended for your student to use, they will need to be tested now that your 11-year-old needs them for his school project. This law applies to any and all school supplies (textbooks, pencils, crayons, paper, etc.) being used by children under 12. To the Avid Reader: Due to the new law, all children's books will be pulled from library and school shelves, as there is no exemption for them. That’s okay though, there's always television. Our children don’t need to learn the love of reading after all. Article from the American Library Association http://www.wo.ala.org/districtdispatch/?p=1322 To the Lover of All Things Handmade: Due to the new law, you will now be given a cotton ball and an instruction manual so you can make it yourself since that blanket you originally had your eye on for $50 will now cost you around $1,000 after it's passed testing. It won't even be the one-of-a-kind blanket you were hoping for. Items are destroyed in the testing process making one-of-a-kind items virtually impossible. So that gorgeous hand-knit hat you bought your child this past winter won’t be available next winter. To the Environmentalist: Due to the new law, all items in non-compliance will now be dumped into our already overflowing landfills. Imagine not just products from the small business owners, but the Big Box Stores as well. You can't sell it so you must toss it. Or be potentially sued for selling it. You can't even give them away. If you are caught, it is still a violation. To the Second-Hand Shopper: Due to the new law, you will now need to spend $20 for that brand new pair of jeans for your 2-year old, rather than shop at the Goodwill for second hand. Many resale shops are eliminating children's items all together to avoid future lawsuits. To the Entrepreneur: Due to this new law, you will be forced to adhere to strict testing of your unique products or discontinue to make and/or sell them. Small businesses will be likely to be unable to afford the cost of testing and be forced to close up shop. Due to the current economic state, you'll have to hope for the best when it comes to finding a new job in Corporate America. To the Antique Toy Collector: Due to the new law, you'd better start buying now because it's all going to private collection and will no longer be available to purchase. “Because the new rules apply retroactively, toys and clothes already on the shelf will have to be thrown out if they aren't certified as safe.” http://online.wsj.com/article/SB123189645948879745.html To the American Economy: Already struggling under an economy that hasn’t been this weak in decades, the American economy will be hit harder with the inevitable loss of jobs and revenues from suppliers, small businesses and consumers. The required testing is far too costly and restrictive for small businesses or individuals to undertake. To the Worldwide Economy: Due to this new law, many foreign manufacturers have already pulled out of the US market. You can imagine the impact of this on their businesses. If you think this is exaggerating, here is a recent article from Forbes http://www.forbes.com/2009/01/16/cpsia-safety-toys-oped-cx_wo_0116olson.html And for those of you prepared to be stupefied and boggled, The New Law http://www.cpsc.gov/about/cpsia/cpsia.html Did you know? If this upsets or alarms you, please react.

CPSIA-Central Seeks to Educate Children’s Gift Industry and Lobby for Immediate Reforms to Devastating New Law

Testing and certification requirements may prove too costly for many small businesses that, ironically, aim to provide safer products for kids.

New York City, New York, January 25, 2009:  CPSIA-Central will be discussing issues related to the Consumer Product Safety Improvement Act of 2008 (CPSIA) at the Challenge & Fun booth (#1848) at the New York International Gift Fair (January 25-29), and (#1249) at the American International Toy Fair (February 15-18). The purpose is to educate those impacted by the new law, and to invite industry professionals to join in the effort to lobby for immediate reforms to CPSIA.

Responding to consumers’ fears following the spate of lead-related toy recalls in recent years, Congress swiftly and unanimously passed the Consumer Product Safety Improvement Act of 2008 (CPSIA). Few businesses affected by the CPSIA were even aware of it until the 2008 holiday season, when they learned that the new testing and certification requirements would go into effect on February 10, 2009. Many of those who will be negatively impacted by the new law – including designers, manufacturers, retailers, resellers, and consumers – are unaware of its implications and unprepared to respond to its requirements.

There has been widespread confusion regarding what types of products and businesses are affected. The answer is, all products designed to appeal to children aged twelve and under, all businesses that make or sell them, and all consumers of products geared towards children twelve and under.

No one wants to see unsafe children’s products on the market. However, the CPSIA requires costly, third-party testing and certification – beyond what is necessary to prove most products safe, and beyond the financial and practical means of many small businesses. Its implementation, as written, will result in higher cost of goods, widespread bankruptcy among small business owners, and loss of jobs in a time when unemployment rates are climbing.

CPSIA-Central is taking steps to educate those in the children's products industry about what the law means to them in terms of certifying existing inventory; duplicate third-party testing of the same materials used to make multiple products; certification and application of permanent markings, and more.

CPSIA-Central is a growing organization with over 500 members.

Contact: Rob Wilson Vice President Challenge & Fun, Inc. Founder & Administrator CPSIA-Central Phone: 508-881-7500 Fax: 508-881-5627 Email: cpsia@challengeandfun.com Web: http://www.cpsia-central.ning.com http://www.challengeandfun.typepad.com

PO Box 222 Ashland, MA  01721 Phone: 508-881-7500 Fax: 508-881-5627

Uncle Sam vs. your favorite toys | csmonitor.com

Uncle Sam vs. your favorite toys | csmonitor.com

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Letter from Rick Woldenberg to US Government (CPSIA)

Below is a copy of an email I received from Rick Woldenberg that was broadcast to government and industry leaders.  I want to share it with you:

I am writing in response to the letter dated January 16 to Commissioners Nord and Moore of the CPSC signed by Reps. Henry Waxman and Bobby Rush and Senators Rockefeller and Pryor (January 16 Letter).  See http://energycommerce.house.gov/images/stories/Documents/PDF/Newsroom/nord%20moore%202009%201%2016.pdf. In this letter, Congressional leaders urge the CPSC to clarify "confusion and misinformation" under the CPSIA in a "clear and understandable manner" and specifically, to address the application of the new law to certain books and clothing items, resellers like thrift and consignment stores and component testing and to provide guidance to small businesses.  Notably, the letter counsels that "greater communication and expedited action by the Commission will improve compliance with the law and lead to more effective and efficient achievement of the law's goals."  I respectfully disagree.  In large part, I believe this letter mischaracterizes the nature of the problem with the CPSIA by implying that with a few regulatory tweaks and a little more guidance, everything will be "fine".  This is patently untrue and misleading in itself.  Furthermore, with economic conditions as they are today (see http://video.forbes.com/fvn/business/er_retailers011409 - 200,000 stores are expected to close in 2009), the negative economic implications of this law have the potential to be catastrophic without an IMMEDIATE serious reconsideration of legislative approach.  See also http://www.forbes.com/opinions/2009/01/16/cpsia-safety-toys-oped-cx_wo_0116olson.html and http://www.forbes.com/entrepreneurs/2009/01/15/toys-lead-retail-ent-law-cx_rb_0115bovarnicksafetylaw.html?partner=relatedstoriesbox.  By attempting to prop up a poorly-conceived law, I believe that Congress is fiddling while Rome burns. This did not work out well for Rome or Nero, and will not work out well for the United States in this case.

 

Fixing the Law Exception-by-Exception Will Not Succeed.  I am confounded by the notion that by drafting a list of exceptions, the CPSC will address the fundamental compliance issues under the CPSIA. As the January 16 Letter notes, the only permitted exceptions are those items which "do not contain lead or contain lead at levels that do not or would not exceed the law's limits" - in other words, the only exception criteria under this law is lead levels, NOT risk.  This rule is the source of much of the problem, as it sweeps into the law many items and item categories that are well-known to be safe.  No amount of rule-making will reconstruct an economy based on selling safe products that happen to have lead as a trace element.  The diversity of products, markets and channels in our economy will defy every attempt to build a workable law that makes everything illegal without regard to risk except as defined.  The absurdity of this effort is illustrated by the January 16 letter itself in which Congressional leaders request special rules for children's apparel consisting "entirely of dyed or undyed fabric", in other words hats, socks and underwear.  Perhaps the requested rule will be known as the Hats, Socks and Underwear Exception. Frankly, this does not solve the problem for those of us living in cold Chicago.  Likewise, the January 16 Letter's request to create exceptions for books is limited to "ordinary" books made entirely of paper - staples, glue, thread, laminates and other components of books (not apparently well-known to Congress) will make most books ineligible in this non-risk-based exception.  However, all books comprised of loose sheets of paper should fall comfortably within the recommended exception. I am sure libraries will appreciate this helpful loophole.

 

A safety law that is divorced from risk assessment cannot be fixed by exceptions.  Congress needs to recognize this serious flaw in the CPSIA and take immediate action to fix it.

 

The Proposed Actions in the January 16 Letter Will Increase Complexity.   The CPSIA is already one of the most complex pieces of legislation in American history.  For companies like ours which are committed to complying with law, the CPSIA presents a unique business challenge to conquer.  Now Congress is suggesting that the CPSC add to the confusion by making the law even more complex with a series of detailed exceptions for various industries, channels of trade, products, features, and other unspecified circumstances. In other words, if American businesses didn't understand how the law worked before, the solution is to make it more complicated. This concept is embedded in the CPSIA, which instructs the CPSC to carve out limited exceptions for products which could not possibly violate the new standards. The legislative construct is entirely wrongheaded, as the approach to safety should be risk-based and further, is incredibly divorced from reality. For instance, the January 16 Letter does not request that resellers of used merchandise be relieved of any responsibility under the law, just that they be coached better.  I suggest that Congress write a book called "How to Run A Thrift Store under the CPSIA."  Perhaps then, and only then, will we understand the procedures such stores must undertake to ensure compliance when selling old merchandise. 

 

Complexity itself is the enemy of compliance with law.  Even a simple rule like the lead-in-paint ban has proven surprisingly resistant to universal compliance despite the fact that there is no economic incentive to use leaded paint in children's products. [Notably, as violations of the laws prohibiting murder illustrate, compliance problems are not unusual in American jurisprudence and are certainly not restricted to children's products companies.] Under this new legislative regime, the blazingly complex CPSIA and its attendant CPSC exceptions, rules and regulations, FAQs, opinions, interpretations, private letter advice and so on will make compliance with law a false promise to the American people, and at the same act as a high-octane stimulus package for the legal industry.  Even if more $600-per-hour lawyers is a good thing for our economy, I rather doubt this will be a workable solution for any American business, including the largest, wealthiest and most sophisticated companies.  For perspective, I suggest you contact the legal department of your nearest thrift store for their opinion.

 

The Approaching February 10 Deadline is Incredibly Unrealistic.  The January 16 letter posits a fantastic resolution to the CPSIA problem, namely that the CPSC should just issue a lot of rules and regulations in the next few days to resolve the painful concerns expressed by constituents of late. Even if this were possible, the idea that it would resolve the issue is, frankly, delusional. The United States has literally hundreds of thousands of businesses affected by the CPSIA. They tend to vary in size and sophistication and many depend on a small, low-cost labor force. Despite the outpouring of concern over this law, Congress has heard from only a miniscule percentage of the affected businesses - many of the silent companies are very likely oblivious to the law and its implications.  Is the concept here that when the CPSC issues a stack of rules a few days ahead of the deadline, every affected business will instantly and perfectly absorb the news, properly interpret the regulations and their application to its economic activity, rejigger processes, repair damaged relations in its supply chain overnight, and so on?  I think the timeline of public reaction to the CPSIA since the law was written and signed into law informs us that this is a wholly unrealistic scenario.  A series of rulings by the CPSC in the next few days will not do much to stop the economic carnage.  About the only remedy that the CPSC can implement before February 10 to stop this train wreck is a broad STAY OF ENFORCEMENT. The solution of a stay ("hitting the pause button") would offer the advantage of both bringing overnight relief to the affected industries, and provide time for an open public debate over how to fix this law, whether by amendment, further regulation or some combination thereof.  A stay for one year (or more) would also have the advantage of unifying the lead standards with more time to plan and sell-off inventory, thus eliminating the problem of retroactive application of the law against product with total lead levels between 300 ppm and 600 ppm which will be legal for only six months (February 10 - August 9).

 

Congress Seems to Want to Do the CPSC's Job.  The CPSIA establishes new standards for safety in children's products in a number of now well-known ways.  Prior to the CPSIA, it was the responsibility of the CPSC to make a risk-based determination for safety hazards.  The January 16 letter continues the new tradition of Congress in supplanting the CPSC as the arbiter of safety risks.  I do not understand what qualifies Congress to make the judgment, first that books are illegal until proven legal, and then that some kinds of books are in fact okay.  Did Congress hold hearings or does it have some other way to make this assessment of risk?  I believe that Congress should not be in the same business as the CPSC, and by micro-managing the activities of the Commission, it has meaningfully contributed to creating the morass that it complains about today.  The CPSC is qualified to manage the process of assessing safety risk and writing sensible rules for the administration of those risks.  If Congress persists in looking over the shoulder of the CPSC and critiquing its judgments down to the level of buttons, snaps and other "metal, plastic or painted components", it should not express dismay over the slow, tedious and tentative process that results.  Congress is teaching the CPSC that the determination of risk is a Congressional Subcommittee responsibility now. 

 

And What about State Attorney Generals?  I want to point out that in a post-CPSIA world, having empowered the State AGs to meddle in and enforce federal safety laws; companies like ours are now faced with 51 CPSC’s (plus Congressional Subcommittees).  Is this someone's idea of a more efficient way to run an economy?  Has Congress thought about the practical effect of this change in our Federal system, or the risk that it imposes on businesses?  The exponential expansion in regulatory bodies under the CPSIA increases the complexity of compliance to mind-boggling levels that outstrip literally everyone's ability to process - American businesses are in effect forced to ignore State laws because they can't manage compliance with them as a practical matter - and introduces significant externalities (uncontrolled risks) that cannot be managed in any way.  State AGs do not answer to the CPSC and are now empowered by the CPSIA to take matters into their hands if, in their judgment, the CPSC is not enforcing the law. Great.  See, e.g., http://www.azag.gov/press_releases/dec/2008/Mattel%20CJ.pdf. In Eighth Grade, I learned about the Federal system and thought this was how the Founding Fathers intended to organize our economy for maximum efficiency and equitable treatment under the law.  I believe the CPSIA has rendered my Eighth Grade civics education obsolete.  We are nevertheless hopeful that Congress will act before the CPSIA makes our company obsolete, too.

 

While I appreciate the hard work and good intentions behind the CPSIA and its passage last summer, the time has come to stop defending a defective bill and its defective process and acknowledge the reality of the law's weaknesses. I am personally convinced that there is more than one way to legislate improved safety in children's products, and that the CPSIA can be safely amended without ripping the fabric of our society. A revised bill can be built to strike the problematic overly-broad provisions that contribute nothing to the safety of children's products, and replace them with a simple, sensible, risk-based approach that will provide reasonable assurance of the safety and appropriateness of children's products in our economy. 

 

We are facing a historic economic crisis in our country.  It is time for non-partisan leadership to bring our country out of this terrible situation. The CPSIA is part of the problem and needs to be fixed.  I urge Congress to face this reality, stop blaming the CPSC for a doomed attempt to make a defective law workable and get to work on amending the CPSIA for the good of our country.

 

Sincerely,

 

Richard Woldenberg

Chairman

Learning Resources, Inc.

The Wisdom of an 11-Year Old

It is scary to think that an 11-year old has more common sense than Congress. Here is a letter that was sent to Congress by one of our CPSIA-Central member's daughter, Natalia.

Dear Congress,

I am writing on behalf of the CPSIA law. My name is Natalia, I am eleven years old and have a 2 year old brother. I am in 6th grade.

I know about the law because my mom owns a baby clothing company, Chapter One Organics and wrote a children's book. It is a small company. My mom has written some letters to understand and still doesn't so I decided to write one too.

Do you think we eat our books and clothes? I'm confused. In the 6th grade we read a lot, we write papers on our laptops, and do cool science experiments but we don't eat anything other then food.

I have a 2 year old brother that is going to school next year. When I went to pre-school I had a good education because they taught me how to read. Who is going to want to make kids things anymore? Everyone says in the
future that kids are going to have a better education but the future isn't five or ten years from now, it can mean tomorrow, next week or next month. So I wonder what is my brother's education going to be like next year with
this law.

I understand for baby toys because I have a 9 month old step-sister who puts things in her mouth even things she shouldn't like my cell phone.

But my brother is two and he does not put anything in his mouth except food. I don't understand the law. How does it keep me safe? I wonder if our library at school will have to throw books away. I don't understand.

In conclusion, I think this law is stupid.

Your friend,

Natalia

"Is There Something Else I Can Do?"

As the administrator of CPSIA-CentraI, I receive regular emails from our members expressing their concerns, asking questions, etc. I received one from a member that I would like to share a portion of the email with you, and post my answer here, for all to consider.

I have been watching this site daily, and have emailed every other crafter I know, I've written to my 2 senators and my representative--twice infact. I've annoyed friends and family so that everyone is aware of what is going on. I've signed the petition and voted on Change. ...I commend your work and efforts. Is there something else I can do, other than respond to emails/links that come my way?

What more can we do? Some of your may feel at a loss as to what else can be done. I want to urge you all to think beyond the norm. Think about how we can best get our message out to the media, politicians, and consumers. Part of me wants to say..."what are you good at?" "what do you like doing?" Do you lke to write? Help write press releases, or blogs. Do you like videography, make a video. And so on. I think this is a valid approach.

How about...."what do you want to learn about?" This crisis has opened up many new horizons for many people. I have never created a social networking site. I have never submitted an OpEd before. I have never been on national radio before, etc. If there is a silver lining on any of this, it is the community that is being built and the individual stories of people reaching inside of themselves and saying "I can do this." I am sure many of you were very nervous when the TV News crews showed up at your stores. But you have all done great.

Here are some things we can all do, some will prefer one thing over another...no problem. Just keep doing.

1. Sign up for Twitter. Follow the conversation (search "cpsia") and when you tweet, refer to #cpsia. Send tweets to the news organizations, etc. Don't know how? Ask fellow twitterers. (you will find me as "challengeandfun").

2. Do you have a craft fair coming up? Hand out flyers to attendees and other vendors.

3. Do you like to write? Offer to write a press release, or write a blog (don't have a blog? you can post it here).

4. Make a video. What you're not a videographer? Do you have a simple video camera or webcam? Tell the world your story and post it to youtube. Don't know how? Create a forum and ask your questions...others will help.

5. You have written to your Representative in Congress & you Senators. Call their offices. Ask to speak with the staffer that deals with commerce. Have a chat with them. Develop a relationship with them. Ask their email. Feed them news stories on a regular basis, and send regular emails to encourage them to stand up and support a repeal or amendment to the CPSIA.

6. Email national news programs with your pitch for a story on the CPSIA. See my media section for ideas, and brainstorm your own angles on the CPSIA.

7. Walk through your downtown and visit local children's stores (clothing, toys, resellers, gifts, stationery, etc). Talk to the owners about the CPSIA (you could take copies of the national news articles with you to leave with them). Form local groups, then call your legislators back and ask for a meeting. Or call the local media and invite them to visit the stores (have a mini press conference).

Much can be done. You don't need to ask permission from anyone to do any of these things, or practically any other ideas that you come up with. Need some help with an idea? Post your idea as a blog or forum entry, and ask for help from the community here. That is why we have this website.

So the question to you the reader....what are you doing? What do you want to do? What are your ideas? What would you like to see on this site, that you haven't seen yet? How can you help to make that happen? If you had no limitations, what would you do? Please share...

Get out the Vote!

It may be winter, but the CPSIA effort is heating up. Consumers, politicians, the media, and of course the entire children's product industry is waking up to the effects of this law. We have all been working hard, and getting the word out. Let's keep going. I know many of you have already sent out emails to everyone in your address book. Perhaps some have not. Perhaps, those that received your first email, need another.

Perhaps this time they need a video too. There are plenty to choose from on this site and on youtube (search CPSIA). I have added a link to a video that I made last night. It encourages everyone to vote on change.org. I sent out an email today to my family, friends, politicians & staffers that I have in my address book, media I have been in contact with, even Hitha Prabhaker (why not, it didn't cost extra, and hopefully she will learn something about the CPSIA. I wrote something like this (sorry, I didn't have time to link to the newspaper articles). I encourage you to send this to media outlets, including Bill O'Reilly, Oprah, or other shows. If they see enough emails on the subject they will realize this is for real:

Dear Family, Friends, Politicians, & Media:

As you may know, I have been working on lobbying the government to make changes to the Consumer Product Safety Improvement Act (CPSIA). This law was intended to protect us from lead paint in toys, but instead requires expensive, redundant, and often unnecessary testing. The administrative rules of compliance are costly, and administratively overwhelming for a small business. This law treats small businesses as criminals until they can prove their innocence.

The net result of the law will be widespread bankruptcies of companies of all sizes, from work at home moms, to larger companies that employ thousands of people. Many of these companies supply products that we value as a society, such as natural toys, organic clothes, crafts, educational materials, and much more. The law will also make it difficult for thrift stores to sell children's products, and even Native Americans to produce products essential to their cultural heritage.

We have made alot of progress. News articles recently have appeared in national newspapers such as the USA Today, Wall Street Journal, Washington Post and the LA Times. This is becoming a national story, and I ask you to help send it to the top of the headlines.

I want to pass this video on to you to help show you just a peek of what is at stake for not just my company, but for our society as a whole.

http://www.youtube.com/watch?v=oqKjJgdUZ3E

PLEASE pass this on to everyone you can and please vote for change at:

http://www.change.org/ideas/view/save_handmade_toys_from_the_cpsia

Sincerely,

(your name)

Again, change this in any way you want. But please send it out to everyone you know, and more.