Today's the big day: CPSIA is here

Picture taken from Fashion-Incubator forum, no credit I could find!

I've been in a bit of a creative funk lately due to lack of sleep, negativity, and the looming approach of the CPSIA. Well, today's the day, so where so we stand? The truth: no one really knows. The CPSC issued a set of last minute guidelines last night to clarify some of the issues people have been raising. Which is only a little bit helpful, as it has the following disclosure:

"This information was prepared by CPSC staff, has not been reviewed or approved by, and many [sic] not necessarily reflect the views of, the Commission. It may be subject to change based on Commission action."

This just about sums up the fundamental problem with the CPSIA: there is no clarity or permanence. Manufacturers and retailers have to comply with the law (that much is clear), but the goalposts keep changing. In fact, since my last CPSIA post the phthlate element of the stay has been challenged and overturned. This doesn't directly affect me as I don't make toys or feeding / sleeping accessories but what sort of confidence can anyone have that this law won't take another lurch in a different direction? How can anyone make provisions for compliance when standards are proposed then overturned, and guidance notes on the CPSC website aren't even official? And Congress and the CPSC play hot potato as to who's responsible for this mess?

Another red herring was contained within the guidance notes in the list of materials that are exempt. I felt all warm and fuzzy for a minute when I read that finally some textiles have been exempted:

"Dyed or undyed textiles (cotton, wool, hemp, nylon, etc.), including children’s fabric products, such as baby blankets, and non‐metallic thread and trim. This does not include products that have rhinestones or other ornaments that may contain lead or that have fasteners with possible lead content (such as buttons, metal snaps, zippers or grommets)."

See the catch there? The addition of buttons, snaps, or zippers moves it right back into the 'danger zone'. Methinks we'll be seeing a lot of pullover tops and elasticated trousers!... Or will we? Right now there are a lot of people scrambling around trying to figure out if elastic is okay.

Need something else to worry about? Even if you are being super vigilant and getting your testing done yourself, you still might not sleep easy at night. My favourite person, Walter Olson, posted this on Overlawyered:

"There are naturally occurring variations in lead content within a given run of metal alloy snaps, clasps or grommets. So even if all 20 that you test happen to score below CPSIA’s permitted threshold, you may still wind up incorporating some that fail into your line of garments. And the first you hear about that may be the press release from the state attorney general or private operator angling for settlement money. Aren’t you glad CPSIA was written to include such harsh penalties for inadvertent and unintended violations?"

And then there's the whole enforcement issue. The fact that the Attorney General of each State decides how to enforce the stay is a logistical nightmare. It was reported in my parent's local paper that Connecticut's AG (who was also instrumental in reintroducing the retroactive element of the ban) has said:

"My office will take whatever steps are necessary to ensure this phthalate ban is enforced.”

Compare that with Michigan's AG who has said:

"...many issues still need to be addressed with respect to the CPSIA. Until these issues are clarified, it would be an inefficient use of already-strained state resources to devote significant time to monitoring compliance with the CPSIA with respect to small operations..."

Will I need to keep a database of which States are okay to ship to?!

So where does that leave me (other than with a sore head and heavy heart)? This is what I see my opinions to be with regard to my Etsy shop:

1. Leave it exactly as it was six months ago, with no mention of CPSIA. Stick my head in the sand until when / if I have an order.
2. Leave it exactly as it was six months ago. State that I have not had XRF testing and leave it up to the consumer as to whether my elasticated peasant tops or fabric covered buttons are dangerous.
3. Leave it exactly as it was six months ago. State that the clothes are for child-sized dolls.
4. Leave it exactly as it was six months ago. State that I will not ship anything to the US except my patterns.
5. Have a streamlined shop with no items with buttons, snaps or zips.
6. Remove everything except my patterns.
7. Set up separate shops for patterns and apparel to keep US and non-US customers separate so that it's easier to draw the line on shipping options.

For the moment I removed anything with snaps, plastic buttons or zips and left only things with elastication or fabric covered button closure. I didn't really even want to do that, a significant portion of my business (maybe 10% or so?) of apparel orders have been outside of the US so if I remove them no one's able to buy them. Over the weekend I had a full shop and an announcement that I regretfully wouldn't ship apparel to the States anymore but I just felt so awful about that (and worried it would alienate people) that I took it down. I would love some advice from my generous readers!

I really don't have the time to go into how this is affecting resale / thrift shops, charities, libraries and children's boutiques, but it's big. Children's books made pre-1985 are pretty much contraband unless you have the resources to test. There are reports of thrift stores throwing all their children's toys and apparel into dumpsters. You might even struggle to buy your kid a bike. If you feel like reading more (as if!), here is some more interesting reading:

Fashion Incubator

Forbes's round-up of how the CPSIA effects each of the 50 States

Overlawyered's CPSIA Chronicles: February 10

CPSIA Cheerleader

600ppm: The CPSIA Blog (if nothing else, check it out just for this picture)

NB. After three days of negative posts, I hope it's worked it's way out of my system and normal irreverant, sarky posts can resume tomorrow!

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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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Bloggers unite: CPSIA Blog-in

Less than two weeks to go now to the crucial date of Feb 10, when the CPSIA comes into effect. This far-reaching act is starting to be noticed by more than just the sellers it affects directly, with coverage in some news programmes and the US national press. I agreed to do a CPSIA post today as part of a group of Etsy sellers that are affected by this law (thread is here). As it currently stands, the following extract of text will be posted on 165 blogs today, but the number is growing rapidly.

"As parents and concerned citizens I’m sure most of us at one time or another have been confronted with the question of lead poisoning. But have you asked yourself what your government is doing to protect your children from lead contained in toys? The answer? They're banning toys, taking books from schools and libraries, hurting low income families, killing entrepreneurial spirit and risking putting the economy in an even greater depression than we've seen in decades. I'd like to introduce you to their solution: the CPSIA.

Do you know about the CPSIA? No? Then I ask you to take a few minutes to find out about it.The CPSIA stands for Consumer Product Safety Improvement Act, a new set of laws that will come into effect on 10 February, 2009 and will impact many, many people in a negative way. Make no mistake, this is very real. View it for yourself. If Forbes, the American Library Association and numerous other media are paying attention, perhaps you should too.

How will these new laws affect you? Well, here are a few examples:

To the Parents of Young Students:

Due to the new law, expect to see the cost of school supplies sky rocket. While those paper clips weren't originally intended for your student to use, they will need to be tested now that your 11-year-old needs them for his school project. This law applies to any and all school supplies (textbooks, pencils, crayons, paper, etc.) being used by children under 12.

To the Avid Reader:

Due to the new law, all children's books will be pulled from library and school shelves, as there is no exemption for them. That’s okay though, there's always television. Our children don’t need to learn the love of reading after all.Article from the American Library Association http://www.wo.ala.org/districtdispatch/?p=1322

To the Lover of All Things Handmade:

Due to the new law, you will now be given a cotton ball and an instruction manual so you can make it yourself since that blanket you originally had your eye on for $50 will now cost you around $1,000 after it's passed testing. It won't even be the one-of-a-kind blanket you were hoping for. Items are destroyed in the testing process making one-of-a-kind items virtually impossible. So that gorgeous hand-knit hat you bought your child this past winter won’t be available next winter.

To the Environmentalist:

Due to the new law, all items in non-compliance will now be dumped into our already overflowing landfills. Imagine not just products from the small business owners, but the Big Box Stores as well. You can't sell it so you must toss it. Or be potentially sued for selling it. You can't even give them away. If you are caught, it is still a violation.

To the Second-Hand Shopper:

Due to the new law, you will now need to spend $20 for that brand new pair of jeans for your 2-year old, rather than shop at the Goodwill for second hand. Many resale shops are eliminating children's items all together to avoid future lawsuits.

To the Entrepreneur:

Due to this new law, you will be forced to adhere to strict testing of your unique products or discontinue to make and/or sell them. Small businesses will be likely to be unable to afford the cost of testing and be forced to close up shop. Due to the current economic state, you'll have to hope for the best when it comes to finding a new job in Corporate America.

To the Antique Toy Collector:

Due to the new law, you'd better start buying now because it's all going to private collection and will no longer be available to purchase. “Because the new rules apply retroactively, toys and clothes already on the shelf will have to be thrown out if they aren't certified as safe.” http://online.wsj.com/article/SB123189645948879745.html

To the American Economy:

Already struggling under an economy that hasn’t been this weak in decades, the American economy will be hit harder with the inevitable loss of jobs and revenues from suppliers, small businesses and consumers. The required testing is far too costly and restrictive for small businesses or individuals to undertake.

To the Worldwide Economy:

Due to this new law, many foreign manufacturers have already pulled out of the US market. You can imagine the impact of this on their businesses.

If you think this is exaggerating, here is a recent article from Forbes: http://www.forbes.com/2009/01/16/cpsia-safety-toys-oped-cx_wo_0116olson.html

And for those of you prepared to be stupefied and boggled, The New Law: http://www.cpsc.gov/about/cpsia/cpsia.html

Did you know? If this upsets or alarms you, please react.

I'm in the UK, so why do I care enough to blog about it? Firstly, it will affect me as an international seller, although it's still unclear how... Some people say it's okay to sell to the States as we're not duty bound to comply to US law, others say that Customs will destroy items as without the requisite testing and certificates they will be deemed 'hazardous'. Unlike American sellers on Etsy, I will at least still be able to advertise my apparel as available to ship to other countries outside the States; strictly speaking I don't believe American sellers are able to export non-tested / non-certified items. I have made a lot of friends through Etsy and Craftster who will likely lose their precious and hard-earned livelihoods.

Secondly, I have family in the States that appreciate hand-crafted, independant alternatives to mass-produced goods. It makes me sad to think that my niece won't be able to flaunt her own individual style with the small batch productions offered by Etsy designers. Or add to her collection of quirky and educational toys, books and dolls.
If you would like to show your support for cause, feel free to copy any or all of the text of this post into your own blog and spread the word!

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CPSIA worries...

Official response in Etsy Storque article

Being in the States for the last month or so, and unactive in blogs and forums, I didn't hear about the impending legislation that will be in effect from 10 February. I'm desperately trying to find out as much as I can about how it will affect my business, but there is so much conflicting information and opinions being posted all over the place.

In response the the recent lead-paint debacle in children's toys from China, the US government passed legislation to safeguard products intended for (or likely used by) children under the age of twelve. The CPSIA demands that from 10 February, all apparel, toys etc have to have every component independantly lab tested for lead. So far, so sensible... Surely I can't argue against protecting children from lead poisoning, right!?

Problem is though, the testing is prohibitively expensive. And you can't rely on certificates provided by suppliers, anything for children has to be end-tested by the maker, at their expense. My current understanding is that if I was to sell a reversible coat to the American market, I would have to have each fabric tested, buttons, interfacing, interlining... for each colourway or material that I had in a style. For every style I had in a range.

Etsy sellers are in an uproar, if enforced ($100,000 fine per non-tested item) it will drive many, many WAHMs out of business. Or at least the fear of it will. Many are already despairingly launching huge sales just now and then closing up shop at the Feb deadline. If you want more information about how people are feeling in Etsy, here are a couple of useful threads:
http://www.etsy.com/forums_thread.php?thread_id=5935443&page=1
http://www.etsy.com/forums_thread.php?thread_id=5935591

There has even been a website (actually I've found many websites created specifically in response to this law) called National Bankruptcy Day. Find out on there how to challenge this law by signing a petition, writing to the CSPC, or to your legislator (if you are in the US). Or join a Facebook group. You can even tell Obama.

The position of international crafters selling into the American market is even more unclear, and the news has made it into a post on Folksy. There is a lot of ambiguity about who is responsible for the certificate in these cases, the maker (me) or the importer (an American re-saler or technically, even the consumer, e.g. the parents!). I'm not sure how I would go about getting the testing in the UK. And would it be valid / recognised? Everyone seems to be adopting a wait and see approach...

All of it makes my head hurt! I'm really not sure what to do with my stock and Etsy shop... Better get cracking on my getting my patterns out for sale!

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