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Scrap The Consumer Product Safety Improvement Act--II

January 29, 2009

By Walter Olson

hy are Rep. Waxman and his allies so insensitive and deaf?

Last Friday, I wrote about how the testing requirements of the Consumer Product Safety Improvement Act (CPSIA) threaten to drive out of business tens of thousands of small makers of children's products; the law also menaces thrift shops with legal liability if they deal in children's secondhand goods, whether or not those goods put any child at real risk.

Just as the article went to press came a new development: The law's prime sponsors, Reps. Henry Waxman, D-Calif., and Bobby Rush, D-Ill., joined by Sens. Mark Pryor, D-Ark., and John D. Rockefeller IV, D-W.Va., sent a letter to Consumer Product Safety Commission (CPSC) Chairman Nancy Nord proposing to mitigate a few of the law's burdens through regulatory interpretation. Some critics of CPSIA saw reason for hope in this news.

After all, only days earlier, Waxman and Rush had dismissed the protests of craftspeople, thrift store owners and garment makers as the result of mere "confusion" and "inaccurate reporting." Had the two suddenly seen the light?

Alas for false hopes. Whatever its value as a political feint (don't blame us for what's coming!), the lawmakers' Jan. 16 letter does very little to avert the coming business calamity.

The letter proposes two specific new exemptions that are both arbitrary and narrow, and which make little sense except as a way to placate a few of the law's more visible and politically salient critics.

It is not clear that the CPSC, whose hands are tied by the law, in fact has legal authority to adopt even these modest exemptions—and in no case can it put them into practical effect before the looming deadline. What is significant is the ongoing bad news: Waxman and Rush remain dead set against the only real way forward, which is for Congress to revamp or repeal the law itself.

For those who came in late, a bit of background. As of Feb. 10, it will become unlawful to make or sell anything intended for use by children under 12 without a program to test the goods for lead—even if no items of their kind have ever been found to pose a lead risk, even if you make and sell only a few inexpensive items a year, even if you've sourced their materials from the most conscientious local suppliers and even if they're items toddlers seldom convey into their mouths, such as dartboards or bicycle tires.

In August, relatively lenient self-checks will give way to a much costlier mandate for "third-party" lab testing. That will mean testing every lot of goods—typically each style/size combination—at a cost of perhaps hundreds of dollars per lot for simple items, and potentially much more than that for items with multiple colors, components or materials.

Because there is at present no green light for once-for-all component testing, the same bit of elastic or fabric trim will have to be tested again and again as part of each lot.

Meanwhile, resellers (such as thrift stores and used-goods sellers on eBay (nasdaq: EBAY—news—people )), while not obliged to test, face liability if they inadvertently sell a vintage item with any component (the axle on a skateboard, the zipper on a size 10 jacket, the rhinestone on a doll's tiara) that flunks the tough new standards.

Since a broad-based testing regime will normally be incompatible with the economics of a thrift store, that will leave store managers with the unpleasant choice of : 1) ceasing to sell children's goods; or 2) predictably being in noncompliance on a lot of old items (without knowing which ones) and hoping no one ever decides to enforce the law against them.

"Short of not taking any more children's clothing and toys, there's no way we can be completely compliant," Sherri Collins, who operates three Other Mothers resale stores in the Phoenix area, explained to the Arizona Republic.

The law was written so as to make the exceptions process laborious and grudging. On Jan. 6, after much effort, the CPSC announced three exceptions to the testing regime: Makers would not have to test components encased well enough inside a product that a child would have no way of getting at them, electronic items impossible to make without lead and goods made of certain natural materials like cotton and wood—a less useful carve-out than it sounds since most such materials must go through at least some finishing process before being used in products, thus losing the exemption.

The result of the agency action was to begin a 30 day notice-and-comment period on the proposed exemptions—which meant, given the Feb. 10 deadline, that makers would not learn how things would turn out until too late. As for further exemptions such as those suggested by Waxman and Rush, at this point the notice and comment period would ensure that final action came only after goods had already been swept from the shelves.

In their new letter, Waxman and Rush propose exempting as generally safe two more product categories: children's apparel consisting "entirely" of fabric (and thus with no plastic or metal fasteners) and ordinary children's books. The first category might let off a few small fry like sock-knitters, while still imposing the full force of the law on most apparel crafters (who would still have to go on testing all 10 fabric components of the paneled sweater because of its solitary plastic button).

The semi-exemption for children's books—which would not extend to maps, birthday invitations, origami paper, homeschooling kits or drawing pads—is described by the congressmen at one point as covering books "that have no unusual components or materials beyond those of an ordinary book," and only a page later as covering books "that have no painted, plastic or metal components."

Apparently, as CPSIA critic Rick Woldenberg of Learning Resources Inc. has noted, it is not well known on Capitol Hill that ordinary children's books are often bound with staples.

Along the way, the letter also promotes one undeniably good idea—requiring identical components to be tested once only—but the best time for that bright idea would have been a year ago, and the letter admits the Commission may not be legally free to move as far as it would like in this direction.

At any rate, these piecemeal concessions don't begin to address the law's systematic problems. Woldenberg, on his blog, quotes an unnamed source alleging that the congressmen are refusing even to hold hearings on the law between now and its pending Feb. 10 deadline, as some other members of Congress have been urging them to do.

If true, this constitutes an astounding display of contempt for the voices now being raised in concern from coast to coast on this issue. And Waxman is an exceedingly powerful committee chairman; failing some "members' revolt" of colleagues to take the issue away from him—or an extremely vigorous effort to twist his arm by the incoming Obama administration—he will tend to get his way.

Why is Congress so deaf? And why has it taken parts of the press so long to catch up on the issue? One reason is that on the Hill, as in some quarters of the elite press, it's usual to turn for guidance on consumer issues to groups like Public Citizen or U.S. PIRG—the very groups who gave us CPSIA in the first place.

Even the somewhat less-politicized Consumers' Union continues to pooh-pooh concern about the regulatory burden, dismiss thrift store liability as something only bad guys need worry about and so forth.

ne might suspect that the heel-dragging and denials of these old Washington hands reflects in part a further calculation, conscious or not: If they can run out the clock for just a little longer, many of the protesters will be in less of a position to cause them political mischief—because they'll be broke, out of the kids' product business or both.

If we are to avert a disaster for American creativity and craft, the hour grows late.

Original Source: http://www.forbes.com/2009/01/22/cpsia-waxman-cpsc-oped-cx_wo_0122olson.html

 

 
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