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Criminal craftsmen and outlawed toys

I’ve been researching a forum post by Howard Acheson today that has alerted me to some information that might have an impact on you — especially if you sell wooden toys. Because some of it is time-sensitive, I thought I’d get it into a blog post ASAP:

There’s been increasing alarm over the looming implementation of certain parts of the Consumer Product Safety Improvement Act (CPSIA). The CPSIA was enacted in reaction to the 2007 lead scares that were tied to children’s toys and other products being imported primarily from China.

Among other things, the act, passed in August 2008, requires that manufacturers test and certify that any products intended for children aged 12 and under meet federal requirements for lead and phthalate content.

For lead content, the new rules go into effect February 10, 2009. After an initial period during which manufacturers can self-certify that they have tested lead-free, they will begin to be required to secure independent, 3rd-party testing and certification of their products.

Now, generally everyone (and especially politicians in an election year) can agree that a law that protects children from lead poisoning is a good thing. The panic started setting in when people began to realize that the very broad language of the CPSIA meant it was going to affect products from toys, clothes, and shoes, to books, school supplies, jewelry, and electronics.

Jill Chuckas, owner of Crafty Baby says that she was blindsided by the new act. “We were told it wouldn’t affect us. It was only aimed at plastics and lead in paint. Or imported items. Then, in mid-December, I had my first wholesale account ask for a certificate of compliance.”

As requests for compliance began to roll in from retailers, small toymakers began looking into the cost of testing their products — anywhere from $100s to $1000s of dollars per product, depending on its complexity — and many quickly realized that it would be cheaper to shutter their shops completely than comply with the new law. Non-compliers risk penalties including felony jail time and $100,000 fines.

After her frantic Internet research revealed the potential impact of the new law, Chuckas and other small toymakers formed the Handmade Toy Alliance (HTA), a grassroots effort to inform the public and politicians about the effects of the CPSIA. They’ve banded together with other industry groups to push for quick reform to the CPSIA. While they agree with the goals of the CPSIA, they feel that its scope makes it completely miss its original intent.

From their website: “Congress in its wisdom decided that a problem caused by irresponsible mass-market toymakers should be solved with a one-size-fits-all solution for dozens of industries totally unrelated to toys. All of these changes will be fairly easy for large, multinational toy manufacturers to comply with. The CPSIA simply forgot to exclude the class of children’s goods that have earned and kept the public’s trust: Toys, clothes, and accessories made by small businesses. The result, unless the law is modified, is that handmade children’s products will no longer be legal in the US.

They suggest certain changes that would lessen the adverse impact to small business owners, such as:
• Allowing for component testing rather than unit testing. This would relieve the manufacturer of certifying every product if they could demonstrate that the components were lead-free.
• Certain exceptions for “low-volume” companies, such as random testing in place of some of the burdensome testing/certification processes.
• Exemptions for certain natural components (such as wood) which are known by science to contain no lead.
• Scaling back the language of the act to focus on the products that were an issue in the first place.

The Consumer Product Safety Commission (CPSC), charged with enforcing the CPSIA, has been flooded with questions and concerns over the new law. They are currently working through the stages of the rulemaking process which will establish and clarify the procedures necessary for compliance.

Under pressure from resellers such as Goodwill Inc., the CPSC issued a statement exempting resellers from certain aspects of the law. The American Library Association is seeking similar exemptions and issued a letter to Congress that read “If the CPSIA is applied to books and paper-based materials, public, school and museum libraries will have to either remove all their books or ban all children under 12 from visiting. This cannot be what the Congress intended.

The mounting pressure from citizens and organizations has begun to see reaction in Congress. Several members of the US House and Senate have written to the CPSC in the past week urging haste in clarifying the law before it impacts small business owners. Yesterday, members of the House Committee on Energy and Commerce sent a letter to the chairman calling for a delay of implementation of the law until it could be refined to be less damaging to small business owners.

Faced with the enormity of the controversy, what’s a small craftsman to do? Scott Wolfson, a CPSC spokesman, says that because the CPSC is in the rulemaking phase, there is still time to impact the law.

“Some of the key requirements when it comes to the testing of lead goes into effect on Feb 10th,” he says. “There are crafters that will be impacted. There are basically two options still available to influence the direction of the CPSIA. First, submit comments. Now is the time to tell us how they use wood. There is now an open comment period for them to share with us their knowledge and information about how these toys and products are crafted, what materials are used and why they may be under the belief that there is no lead used in the manufacturing process. This comment period is specifically regarding possible exemptions that are inherently lead-free.”

“At the same time, they need to be reaching out to Congress, to local representives,” Wolfson says.

Chuckas’ response: “I don’t think ‘call your congressperson’ gives a lot of comfort to your average person. The average handcrafter doesn’t like to feel like they’re out of control, and this feels completely out of our control. The sheer volume of emails is very important to let them know we’re out here and we need help. But the reality is that it’s who you know in Washington. We don’t know how to manage these systems.”

The CPSC’s request for comments regarding third-party testing can be found here. (PDF)

Comments can be submitted by email to Sec102ComponentPartsTesting@cpsc.gov
The current comments period ends January 30th, however, so don’t wait.

To contact your U.S. Representative, click here.
To contact your U.S. Senator, click here.
To read the full text of the CPSIA as well as summaries of the sections, click here.

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