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Subject: |
Paved With Good Intentions... |
| Date: |
2009-02-09
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Paved With Good
Intentions...
By Cliff Ennico
www.creators.com
“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 Friday (January 30, 2009), 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that will never be repealed, amended or superseded is the "law of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. Permission granted for use on DrLaura.com.
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