CPSIA – Paved with good intentions – by Cliff Ennico (02 Feb 09)

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“For the past several years, I have been making doll clothes and teddy bear outfits in my spare time and selling them on eBay, Amazon and other more specialized handicrafts sites such as etsy.com.  I understand there’s a new law that would require me to have my products professionally tested before I sell them to make sure there are no harmful chemicals or lead in them.  While the law applies primarily to mass market ‘manufacturers’, such as Chinese toy companies, there seems to be no exception for small businesses like mine.  There’s no way I can comply with this law – is the Government trying to put me out of business?”

Until last Friday (January 30), the short answer to this reader’s question was “yes”.

In August 2008, Congress passed the Consumer Product Safety Improvement Act (CPSIA) which, among other things, prohibits the sale of certain items intended for consumption by children 12 years of age or younger.  Specifically, beginning February 10, 2009, children’s products cannot be sold if they contain more than 600 parts per million (ppm) of lead.  Also, certain children’s products manufactured on or after February 10, 2009 cannot be sold if they contain more than 0.1% of certain specific phthalates (chemicals that are added to plastics to give them more flexibility).

CPSIA requires manufacturers of children’s products to have them tested for compliance with the law, and to certify in writing to distributors and retailers that the CPSIA’s requirements have been met.  There’s only one problem:  the CPSIA did not define – and still has not defined — the term “manufacturer”.  Clearly, a toy factory in Asia qualifies.  But so does someone working out of their home making doll clothes from leftover cloth.

Now, I don’t think anyone can argue with the basic premise of CPSIA – that keeping kids away from lead and harmful chemicals in toys, dolls and other kid stuff is a REALLY good idea.

But the people who drafted CPSIA forgot one thing.  One of the few laws that will never be repealed, amended or superseded is the “law of unintended consequences.”  Perhaps the best expression of this law is the old saying “the road to Hell is paved with good intentions”, attributed to the medieval cleric Bernard of Clairvaux (1091-1153).  Sometimes, when trying to do good for some people, legislators and lawmakers effect harm on other people.  Most of the time, this is unintentional – laws and regulations are often passed quickly, under deadline pressure and heat from the media, to respond to an immediate need or public concern.  But when it happens, it still hurts.

Last month, the U.S. Consumer Product Safety Commission (CPSC), the federal government agency responsible for implementing and enforcing CPSIA, began to get the idea that the “testing and certification” requirement wasn’t going to work for a lot of people.  It issued a policy statement clarifying that “sellers of used children’s products, such as thrift stores and consignment stores, are not required to certify that those products meet the new lead limits, phthalates standard or new toy standards.”

Good news for people selling doll clothes and teddy bear outfits on eBay, but only if they didn’t actually make the stuff themselves. Even then, there could be trouble.  The CPSC added the following cryptic warning:  “resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.”

So, are resellers off the hook as long as they stay away from certain toys — such as metal soldiers — that are likely to contain some lead, or must they educate themselves to recognize the CPSIA’s banned chemicals?  How many questions must they ask their vendors or consignors, who probably don’t know the answers themselves?  No answers, at least not yet.

Even assuming resellers are off the hook, what about the home handicrafters, who could still be considered “manufacturers” under CPSIA?  Since Congress did not give any guidance when they passed the law, the CPSC did the only thing they could do under the circumstances:

They deferred the “testing and certification” requirement for one year, until February 10, 2010, in order to “give the [CPSC] staff more time to finalize four proposed rules which could relieve certain materials and products from lead testing and to issue more guidance on when testing is required and how it is to be conducted.”

Whew!  So is it safe to start sewing teddy bear outfits again?  Probably.  But if you’re making children’s jewelry items, make sure there’s absolutely no lead in them – that specific ban is not subject to the one-year stay.

For more information on CPSIA, go to www.cpsc.gov/about/cpsia/cpsia.html.  But don’t expect answers, or clarity.

Cliff Ennico (cennico@legalcareer.com) is a syndicated columnist, author and former host of the PBS television series ‘Money Hunt’.  This column is no substitute for legal, tax or financial advice, which can be furnished only by a qualified professional licensed in your state.  To find out more about Cliff Ennico and other Creators Syndicate writers and cartoonists, visit our Web page at www.creators.com.  COPYRIGHT 2009 CLIFFORD R. ENNICO.  DISTRIBUTED BY CREATORS SYNDICATE, INC.

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