A bigger picture on CPSIA's stay of execution

Photo courtesy of Tiedyediva, you can buy this adorable hat here!

Last night the CPSC issued a stay of execution on the enforcement of the CPSIA. From 10 Feb 2009, the lead levels set by the CPSIA will still be in effect and legally binding, however, the onerous and expensive testing regime will not be enforced by the CPSC until 10 Feb 2010. Your items still have to comply with the law, but there has been a shift from 'guilty until proven innocent' to 'innocent until proven guilty'. Here is an excerpt from their press release:

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.

So how do you get the confidence that your items comply without a test to prove it? If your materials have been certified organic, you can reasonably assume it falls well within the same limits. Use suppliers that are willing to provide MSDS documentation with their own testing data, there is a massive thread on Etsy that lists suppliers who will (and won't) provide certification. The CPSC also gives the following advice:

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.

This is backed up by the XRF testing programme being carried out by The Smart Mama, who warns that the components most likely to fall above the 600 ppm limit are rhinestones, crystals, zipper pulls, zipper bases, zipper stops, grommets, snaps, metal closures, pearl or opalescent plastic buttons, vinyl stabilised with lead, and eyelets. So use your common sense, use responsible suppliers willing to provide MSDS certification, and if you don't know, have it XRF tested.

All of this is positive news, but don't celebrate yet. Firstly, it is only a stay of execution, unless it is amended by Congress we'll be in the same position a year from now: facing expensive redundant testing. The government has written and passed this law, the CPSC is there to enforce it. Which brings us to the second reason to exercise caution. It is my understanding that even the proposed stay is not guaranteed, there is a 30 day consultation period first. Walter Olson (from Overlawyer.com and author of the very good Forbes articles on the CPSIA) twittered soon after the CPSC's announcement yesterday that the consumer groups that lobbied for the law are likely to challenge the one year stay as illegal, and the courts could side with them. A legal challenge to the stay seems likely, check out this letter to Obama from 'a coalition of public interest organizations' urging for a change of leadership at the CPSC and a renewed call to enforce. Also, the CPSC can't promise not to enforce this law, they can only urge each state's Attorney General to follow the judgement of the CPSC with regard to the stay. Their release says:

"The Commission trusts that State Attorneys General will respect the Commission's judgement 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."

So it's not exactly cut and dry whether it will be enforced, that's for each state's attorney general to decide. And what are the penalties for non-compliance to the lead and phthalate limits? According to a post on Criminal Liability Under the CPSIA, $250,00 and / or 5 years in prison. Yikes. Is this offering of a stay by the CPSC any different than the line they took with second-hand / thrift stores? You can sell things without testing and certification, but if you are found to sell something that doesn't comply (through either ignorance or negligence), as the manufacturer you are liable. For me, I'm taking all my existing stock with zippers, snaps or button out of the US market. And I won't touch vintage supplies with a bargepole.

There are a couple of promising rumblings from Congress. Sen Jim DeMint has written a post on his blog entitled "Congress Must Keep Overreaching Consumer Products Safety Improvement Act From Harming Small Businesses, Families". He is introducing legislation next week that would be (if passed) the biggest victory against the CPSIA as it currently stands. He will recommend that component testing is suffice, prevent retro-active enforcement, instigate a good-faith exemption and require the CPSC to provide a clear compliance guide. He's a Republican in a Democratic Congress, so it's important for everyone to voice their support for him. And Orrin Hatch has just called for hearings on concerns raised about he CPSIA.

Overall, an incredibly busy day with all the developments in the CPSIA saga (I had a hard time writing this post as new things kept popping up!). Some promising, some definitely still cause for concern. My favourite comment so far on the announcement of the stay is courtesy of Hugh on overlawyered:

"While I am very happy to hear of a “stay” or some “modifications” to CPSIA, I feel that we may just be cutting off the crusts of a very large CRAP sandwich."

The stay is not a victory, it has just bought some time to get meaningful reforms discussed by Congress.

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