The Consumer Product Safety Improvement Act is officially in force today, and its "final" (to date) form has surprises for everyone. The Consumer Product Safety Commission granted a year's "stay of enforcement" for new lead and phthalate limits that requires companies to pinky swear adherence to the new laws but doesn't require them to test their products for the now-banned substances. The CPSC went on to respond to critics of this move, including ZRecs, by issuing additional guidance assuring companies that manufacturers and retailers would not be prosecuted unless they were notified of violations and then kept selling the product.

The CPSC's website has been up and down for the past few hours. Its latest guidance for retailers, a "Small Business Guide" released today, includes a table of product types and how much to trust their safety. Examples from the list include:

• Cheap children’s metal jewelry: Best to test, contact the manufacturer, or not sell


• Unpainted/untreated wood toys: OK to sell


• Painted wooden or metal toys: Best to test, contact the manufacturer, or not sell


• Toys with soft plastic that are made for infants: Should be OK to sell if made for sale after February 10, 2009. If older (or if the date of manufacture is unknown) check with manufacturer or do not sell


• Dyed or undyed children’s clothing made from natural, untreated cotton, silk, wool, hemp, flax, linen, and other untreated natural materials including coral, amber, feathers, fur and leather: OK to sell


• Clothes with rhinestones, metal or vinyl snaps, zippers, closures or appliqués: Best to test, contact the manufacturer, or not sell

The CPSC has been adjusting its language release by release to reassure retailers and resellers that they are not in danger of being massively fined. This latest uses the term "knowingly," although it is hard to see how that particular distinction would hold up in court.

Then late last week a New York district court threw out the CPSC's interpretation of the phthalates ban, which the CPSC had interpreted as not applying to existing inventory. In short, that means any children's products containing levels of phthalates in excess of the new limits are banned for sale as of today. This move comes to you courtesy of the Natural Resources Defense Council and Public Citizen.

We've been tracking a few companies for the ZRecs Guide which have been quite reluctant to release phthalates information to us for publication. We'll be watching as stuff drops off their websites, and adding products to the guide based on the materials used and the timing of their disappearance. No items will be labeled as "high" confidence for our ratings without independent verification of the phthalates status with the company - which, presumably, has an interest in halting sales of products that could earn them $100,000 fines. Thanks to President Obama's new directive to federal agencies regarding Freedom of Information Act requests, we're also hopeful we'll be able to crack open more of these regulatory conversations between the CPSC and companies as they go down. Interesting times.

The Consumer Product Safety Commission issued a one-year "stay of enforcement" for phthalate and lead testing by children's product manufacturers today.

Significant to makers of children’s products, the vote by the Commission provides limited relief from the testing and certification requirements which go into effect on February 10, 2009 for new total lead content limits (600 ppm), phthalates limits for certain products (1000 ppm), and mandatory toy standards, among other things. Manufacturers and importers – large and small – of children’s products will not need to test or certify to these new requirements, but will need to meet the lead and phthalates limits, mandatory toy standards and other requirements.

I know, gift horse and all, and an entire industry is breathing a collective sigh of relief, but do these terms give anyone else pause? The CPSC has just offered crafters, handmade toymakers, and corporate producers alike the same deal it already gave resellers earlier this month: You don't have to test the products you sell, but if we find one that doesn't meet the new standards, you're on the hook for fines - $100,000 per violation. From the stay of enforcement:

Handmade garment makers are cautioned to know whether the zippers, buttons and other fasteners they are using contain lead. Likewise, handmade toy manufacturers need to know whether their products, if using plastic or soft flexible vinyl, contain phthalates.

Or what? Well, or nothing. The CPSC is essentially saying it does not intend to enforce the ban it is mandated to enforce, for the period of one year. It can't actually say that it doesn't intend to enforce it. Here's what it can say:

The Commission trusts that State Attorneys General will respect the Commission's judgment that it is necessary to stay certain testing and certification requirements and will focus their own enforcement efforts on other provisions of the law, e.g. the sale of recalled products.

The gist of the CPSC's new ruling is this: "We cannot release you, the manufacturer (or crafter) from the requirement to meet these standards. We can relieve you of the obligation to prove to us that your products are safe, as we have now defined safety. However, we must state that you are still obligated to meet those safety requirements, even if we aren't requiring the testing; therefore, the ultimate burden of compliance remains with you, the manufacturer, although we do not intend to check, and are hoping that state agencies will follow our lead."

I see a few problems with this scenario.

1. The fundamental problem with the CPSIA's testing and certification requirements is that testing of various combinations of components makes it impossible for small producers to stay in business. A year delay does not solve this problem.


2. Producers who do take this year to develop a stronger awareness of their supply chain and the safety of the materials they use will not be in any better position to sustain the cost of testing a year from now. In other words, if I make children's clothes and I begin more carefully sourcing my snaps, buttons, zippers, and fabrics to ensure I am dealing with reputable companies that produce a quality product and perhaps even test themselves, I will still be required to do the same testing as someone who took no such steps. I may pass the test, where someone else would fail it, but the standards have never been the issue - it's the breadth of testing required in the first place.


3. Significant momentum has been building behind the need to fix this law, and some of that pressure will now be released.

It may be that this is the only way for the CPSC to offer relief this close to the February 10 deadline, and that they are just preparing the ground for Congress to take more time-consuming actions to fix the CPSIA over the next year. If that is the case, it might be legalistic to complain that they are making crafters, toymakers, and companies technically responsible for meeting a standard they now claim to be uninterested in enforcing.

But the law is the law. The state and federal government don't always walk lockstep on these issues - look at what happened in California with medical marijuana. What if some state - California, say, or Washington - decides to go ahead and test products and enforce the law? Or what if a consumer group that feels passionately about the new lead standards decides to do some independent testing and sue non-compliant companies for violating the new standard?

What do you think? Is this the best relief the handmade industry could hope for, or is it just one step towards fixing this legislation? If you're a producer, does your "responsibility" to be in compliance given these terms worry you, or are you comfortable assuming that you're safe until February 2010? Is there anything you'll try to do with this "extra" year on the assumption that the CPSIA itself might not get "fixed" by then?

From The Smart Mama, in answer to the question "Does Pres. Obama's rule freeze delay the CPSIA?"

No. The "rule" freeze is a freeze on regulations, not the law itself. The lead content limit and phthalate ban are in the text of the law itself - and remain unaffected by the regulatory freeze. In fact, the regulatory freeze is actually detrimental since the exemptions for natural products and lead in electronics are in the regulatory pipeline. So, these are delayed by Pres. Obama's order. [Link]

We suspected the freeze wouldn't impact CPSIA implementation when we last posted about this, but had no idea about the ramifications for changes to the CPSIA - by Jennifer's assessment, it's the "fine-tuning" itself that is frozen. This would mean that what exemptions have currently been made - for natural, untreated materials like wood and wool - will not be there to protect manufacturers or resellers on February 10.

Jennifer Taggart's blog The Smart Mama is a great resource for detailed analysis of the CPSIA, and she's quick on her feet. Check it out here, particularly if this legislation impacts your own business.

In case you thought the unintended consequences of the Consumer Product Safety Improvement Act (CPSIA) hadn't yet gotten surreal enough, the American Library Association (ALA) has put out the call that the new regulations of the CPSIA will restrict libraries' ability to make books available to children under 12 [via Baby Toolkit].

We had heard rumors of the CPSIA posing challenges to libraries, but it has never risen to the level of the ALA, which lends the interpretation considerable clout. And unlike private businesses, which may accrue legal liability under the CPSIA for actions that might still require judgment calls - judgment calls the CPSC seems quite comfortable telling companies to make - libraries are different. As public institutions, they will be under particular pressure to follow this law to the letter.

The assessment, published in the ALA Washington Office's "District Dispatch" blog, reads as follows (emphasis ours):

WASHINGTON, D.C. - The American Library Association (ALA) today expressed dissatisfaction with a public meeting held by the Consumer Product Safety Commission (CPSC) to discuss the Consumer Product Safety Improvement Act (CPSIA) and whether the law, which requires children’s products to undergo stringent testing for lead, should apply to ordinary, paper-based children’s books.

Under the current opinion issued by the General Counsel of the CPSC, the law would apply to books for children under the age of 12; therefore, public, school, academic and museum libraries would be required to either remove all their children’s books or ban all children under 12 from visiting the facilities as of February 10.

During the meeting, members of a panel including representatives of the American Association of Publishers (AAP) as well as major book publishers and ink manufacturers, addressed questions raised by the CPSC rulemaking committee regarding the testing procedures and methodologies currently exercised in the production of an ordinary book.

The panel presented a collection of data reinforcing their position that ordinary books pose no inherent threat. This information can be viewed here. Though the CPSC acknowledged that the current deadlines are unrealistic and potentially damaging, the General Counsel gave no clear indication as to when an official ruling would be made and could offer no definite direction to libraries at this point.

“It is completely irresponsible and unacceptable for the CPSC to continue to leave this matter unresolved with the February 10th deadline drawing closer each day,” ALA President Jim Rettig said.

“It is apparent that the CPSC does not fully understand the ramifications this law will have for libraries - and for children - if libraries are not granted an exemption. At this point, we are advising libraries not to take drastic action, such as removing or destroying books, as we continue to hope this matter will be rectified and that the attention will be paid to the products that pose a true threat to children. However, we find it disappointing and shameful that a government agency would continue to leave this matter unsettled when clearly the outcome would virtually shut down our nation’s school and public libraries.” [Source]

The ALA has also published a call to action, with detailed points to cover with Acting Commissioner Nancy Nord's office.

If libraries - which do not sell products to consumers but lend them out for free - are on the chopping block, then there's another group that should be coming up in conversations soon: Schools.

Our overall assessment of this train wreck has not changed: The law is broad to the point of ridiculousness, and will cause an astonishing level of economic hardship if it is allowed to go into effect as written. It may be tempting to assume that corrections will be made - no one wants to keep kids out of libraries! - but the question is how much disruption our private and public sector will be forced to bear in the meantime, how much of our nation's productive capacity will be squandered, and how many working Americans will go out of business while we wait for the government to fix the mess they've made with a well-meaning piece of legislation.

First, kudos to Houston's ABC affiliate (KTRK). They interviewed a local crafter who runs a kids' clothing boutique that will close down on February 10, and she walked through all of the elements that will have to be tested on individual handmade garments to be in compliance with the law - upwards of ten different parts of a single garment, of which there are dozens if not hundreds in her shop. I spoke to her on the phone an hour ago and she noted that the documentation alone would make running a shop like hers impossible. She is among the many (us included) who find it ridiculous that individual elements - thread, elastic, fabrics - must each be tested in each end product, not because they might be unsafe individually (for then crafters could simply purchase materials that had already been certified) but because they might form a harmful substance, or rise above prohibited levels, only in combination. This is not real-world legislation. Here's her blog - if you're a crafter making children's products in the Houston or Austin area, you should get in touch with her.

Second, outgoing CPSC Public Affairs Director Julie Vallese held a pretty odd sit-down with Baltimore's NBC affiliate, WBAL in which she managed to say with a relatively straight face that the nation's thrift store and consignment shop owners had no obligation to test products, but that they should make "a business decision" and have "confidence" that the products they are selling meet the new laws, because if they are caught selling ones that aren't, they get a big fat fine (last I heard was $100,000, but she didn't say). I can only think of one "business decision" to make under such a business arrangement. Thanks to SaveKidsResale alerting us to this arresting, if maddening, interview. Heckuva job managing public information on that CPSIA bit, Julie. Heckuva job.

Read more about this issue in our predictions for the CPSIA's effect on the children's product industry.

There is a lot of fear about what will happen on February 10, 2009 - the day provisions of the Consumer Product Safety Improvement Act go into effect, and the day many in the small-business community are now calling National Bankruptcy Day. (Read this Christian Science Monitor article if you have any doubt about what's at stake here.)

As the CPSC muddles through these issues in the weeks before they drop the "Feb-bomb" on the entire children's products industry, many of us have lost confidence in their ability to work with Congress to make the needed adjustments that will offer the best consumer protection available under a saner set of rules. Instead, they have elected to selectively interpret sections of the Act and offer minor concessions that do little good. Exempting a series of natural materials, for example, comes with the stipulation that they not be painted or dyed, even with substances proven to be of little or no risk to consumers (plant-based pigments, beeswax). Reassuring resellers that they are not required to test products comes with the warning that they will be liable for big fines if a product they sell is discovered to violate the standard.

We'd like to go ahead and make some predictions about what the CPSIA will do to U.S. businesses and consumer choice in 2009, in addition to helping protect children from lead and phthalates, if the law stands as currently written. These predictions are offered in the hopes that any we'd like to avoid could be avoided, especially if enough consumers take action.

The mass market

• Fewer choices from fewer brands. The big companies in infant care, children's toys, and apparel will begin reducing the variety of "styles" of individual products, and cut some less-profitable lines entirely rather than pay for redundant testing. This means a single model of sippy cup will suddenly come in two color choices instead of six, a pacifier in one style instead of four, and a lunch box in two licensed-character lines, one for boys and one for girls, instead of a half-dozen different characters plus a couple of generic models. Your local big-box store's sleepwear section will have half the number of fabrics, and you'll suddenly have trouble finding that yellow or green onesie to welcome a baby whose gender isn't known, and go with white instead. Brands that produce some kids' products but don't rely on them exclusively (high-end designers, furniture makers, and small companies with a range of small-batch products) may abandon the children's product market completely. Parent companies will shuffle their holdings. Startups will thin out, with fewer new entrants into the market, even than in past periods of recession.


• The 8-to-12 toy gap. Although it is illegal to claim that a product intended for children is only intended for adults, a major gray area exists in the 8-to-12-year-old market. New products that would traditionally be marketed as "8 and up" will suddenly be labeled as "13 and up" or "over 12." The CPSC will challenge a few of these claims, but only the most egregious cases, because those are the only fights they can win. Other companies may choose to strengthen divisions offering products for older children at the expense of those for younger children. Either way, parents will face fewer choices as well as diminished rights for those they buy for "off-label" use.


• Increased prices. Safety costs money and is worth our investment as consumers. But companies, at least initially, will be more concerned with protecting profits than competing on price. Depending on company strategy, these increases may be gradual or may hit in about six months.


• The green purge. Consumers and retailers will remain confused regarding which product types can still be sold from current stock, and for how long; as a result, more products will showcase non-plastic materials, undergo stricter voluntary materials testing (Oeko-Tex), and promote themselves as "free" of banned chemicals. Book publishers will shy away specifically from synthetic covers, vinyl infant books, and integrated toy-book gimmicks. Meanwhile, vast quantities of unsold children's merchandise will be exported or destroyed. Companies doing business in the developing world will dump products there at cut-rate prices. Those that don't will send them directly into landfills, where they will slowly leach their banned substances into the environment. Non-compliant products will be retired as quietly as possible to minimize customer complaints and attempted returns.


• Booby traps. Manufacturers who believed the CPSIA had no bearing on their product area will have a rude awakening. Congress will pass new laws to exclude them.

The used market

• Online reselling will get safer. eBay, Craigslist, and other peer-to-peer sales services will see fewer listings of recalled items as top sellers are investigated and a few prosecuted, resulting in an overall increased safety level for cribs, high chairs, and toys offered through such services.


• Online swapping will get more secretive. Many small and hobbyist forums for swapping between parents currently permit the viewing of posts by outsiders. Most of these will go fully private, often in response to requests from members, to help decrease participants' chances of being targeted for prosecution. Moderators will develop new methods for vetting members or require referrals for new members.


• Thrift store profiling. Resellers are not required to test products, but are liable for the products they sell. This will likely result in product "profiling" strategies that vary wildly from store to store, but products obviously made from softened PVC (backpacks, play yards) will become difficult to find used and will go directly into landfills without being reused or passed on. Painted and plastic toys by unknown brands will also be broadly rejected. Few, if any, will conduct any testing.

The handmade and craft market

• The handmade industry will contract and undergo a broad cultural shift. Consumer options and volume will both be significantly reduced as work-at-home artisans are forced to choose between going out of business and flaunting a law they feel is unjust. Those who stop selling will tend to be older, and have more to lose from the risk of prosecution - homes, assets - while those who remain will tend to be younger, and will absorb the new business while pressing the "handmade movement" into more pointed political service. The most active agitators will help articulate the movement's goals using techniques from edge communities and will improve their skills at drawing media attention, which will protect them from prosecution to some degree. DC-area crafters will hold crafting sit-ins at public hearings and agency meetings. Sales of Civil Disobedience will rise. Those who leave may find other work, or may wait, and even produce goods, while they wait for a fix.


• The mass media will speak up about the issue. An ill-informed spike in television news coverage will miss much of the point and overhype the rest. Oprah will get involved, Martha might, and when they do, they'll nail it.

A few questions for you, any of which you're welcome to respond to in the comments:

• What do you think of the planned CPSIA regulations?


• What do you think of the CPSC's handling of the public concern and confusion surrounding these issues?


• Do you have any predictions to add to the list, or any of ours you think won't come to pass?


• What have you done, or could you still do, to make an impact on this issue?

Photos, from top, by Hey Het, photophonic, and tegurity. ZRecs.com cover image by phlora. All photos shared via Flickr.