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Toymakers, Craftspeople Up in Arms Over New Safety Law

Will new testing requirements really put independent sellers out of work?

By Martin H. Bosworth
ConsumerAffairs.com

January 12, 2009

• Mattel Settles Suits Over Dangerous Toys • Target To Pay $600,000 For Violating Lead Paint Ban • Tougher Safety Requirements For Children's Products Now In Effect • Toys 'R' Us Launches Unsafe Baby Products Awareness Program • New Safety Agency Chief Pledges Greater Openness • Obama Names New Consumer Product Safety Chair, Boosts Budget • Toymaker Fined $1.1 Million For Consumer Violations • Maryland Stores Stop Selling Toys With Lead Paint • Toymakers, Craftspeople Up In Arms Over New Safety Law • Thrift Stores Protest Ban on Lead Toys • Target Launches In-Store Recall System • Do's and Don'ts of Holiday Decorating • New Jersey Finds Recalled Toys in Four Stores • Mattel Agrees to Lower Lead Paint Levels in Toys • Consumers Cautioned About Dangerous Toys • Soon-To-Be-Banned Plastic Toys Flooding the Market • Safety Agency Warns of Safety Hazards in Cribs --- • More Consumer Safety News • Recall Notices

Veronica Kennedy spends her days as an information technology consultant in Virginia, but she also has a passion for making clothes and products out of fiber. "I knit, crochet, and sew," she told ConsumerAffairs.Com. "I have been starting to get items together to set up an [online] shop. Additionally, I do a lot of commissioned work for baby clothes and personal gifts and whatnot."

Thus she was shocked to hear that she might not be able to continue her side business after February 10. According to reports from other toymakers and craftspeople, the Consumer Product Safety Improvement Act (CPSIA) &mdash scheduled to take effect February 10 &mdash would force people like her to pay thousands of dollars to test every product she made for lead content, which could bankrupt professionals who make their living selling self-made products.

"I am really concerned for the testing issue (can't afford it) and if it turns out to be just really broad stroke legislation- the amount of loop holes that some one could take advantage of and sue me over," she said. "What are my rights? What/ where are my protections as a micro-manufacturer? What in the world were they smoking when they threw this together?!"

A groundswell of opposition has risen against the CPSIA in recent months, with supporters of handmade crafts and secondhand stores banding together to protest what they consider excessively burdensome regulations. Handmade crafts seller site Etsy posted an open letter on its blog urging vendors to contact Congress asking for assistance and clarification on the issue.

"Our members would like to better understand how the CPSIA took into account these smaller businesses operating with fewer resources for testing and compliance," the company said. "We believe Etsy artisans are pro-testing and pro-safety; the problem is the prohibitive certification costs relative to their small businesses' incomes."

Kathleen Fasanella, who runs the "Fashion Incubator" site devoted to improving factory manufacturing practices, set up a site called "National Bankruptcy Day" — that being February 10, when many businesses will collapse from having to pay for the testing costs regulated by the CPSIA. "It is my OPINION -not fact- that the law is unsustainable whether it’s because it can’t be enforced with smaller vendors or the number of bankruptcies. Either way, my OPINION is that they will change the law," she wrote.

"Not closing down thrift stores"

The CPSIA was signed into law in August 2008 as a response to the ongoing crisis of imported toys containing lead, phthalates and other dangerous chemicals being sold in big-box retail stores. Despite continual attempts by multiple industries to weaken the bill, it passed both houses of Congress by huge margins.

Senator Mark Pryor (D-AR) was the primary sponsor of the bill in the Senate. According to his press secretary Lisa Ackerman, the bill is "not designed to close down thrift or consignment stores, or independent craftspeople."

"Retailers had a seat at the table throughout this process," she said. "The focus was on making sure major manfacturers were in compliance with the new laws — we didn't want any more cribs and toys falling apart."

Pryor's legislative director Andy York agreed. "The enforcement priority was on big-box retailers, not small manufacturers and thrift shops," he said. "Independent product makers certainly shouldn't not comply with the law, but the [Consumer Product Safety Commission] isn't going to be banging down the door of thrift shops on February 11."

The most common criticism of the law was that it may be written too broadly. According to Ackerman and York, that was intentional. "Congress passes the law in broad strokes, but we leave it up to the enforcing agency to handle specifics," York said. "The law was written to give the CPSC interpretation on how to enforce it," Ackerman said.

No clear answers

The CPSC has been historically underfunded and undermanned for much of its existence, most recently hobbled by a lack of a quorum for the commission and a revolving door of acting chairmen. It was that very lack of ability to enforce consumer safety standards that contributed to the proliferation of unsafe products on shelves.

Multiple consumer organizations have petitioned the CPSC to offer more clarification on how the law will be implemented and enforced. "The vacuum of implementation information, as well as the proliferation of misinformation regarding actual testing requirements and the cost of testing is leading to confusion and fear," they said.

"[The] CPSC must take the initiative to allay their fears by providing prompt, common-sense, and explicit interpretations regarding exemptions to CPSIA stipulations, guidance as to the realistic cost of testing, and education regarding compliance with the CPSIA for retailers, including thrift and consignment stores," they said.

The CPSC put out a press release on January 8 stating that resellers were not required to test products for unsafe lead content — but that "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."

The agency also put out a request for public comment on Section 102 of the CPSIA, which requires third-party testing for products, to determine its effect on businesses and individual proprietorships. The comment period closes January 30.

Representatives of the CPSC were unavailable to comment to ConsumerAffairs.com on how the law would affect individual product makers.

"There needs to be clarification"

For now, it seems that the vocal protests against the law have had some effect, and the CPSC is working to modify the most controversial sections, ensuring that handmade product makers and sellers alike will not have to shut their doors come February 11.

But for many people living on the margins, who can only afford to buy secondhand or thrift clothes, the possibility of losing that avenue remains worrisome. Shelli Zink, a bookkeeper from Triangle, Virginia, says she "never pays full price for anything, ever," and worries about the long-term environmental and economic effects of small vendors going out of business.

"[I] don't want to see products with lead or phthalates in the market, hurting kids, but what about hurting them by stifling the market, increasing costs, and more damage to the environment from an increase of waste to landfills and increased manufacturing needs?," she said. "There needs to be clarification, are used items at risk? Craftsters? Small manufacturers? Is this an all or nothing or do we accept that the better option is small risk with small businesses?"

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