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First of all, let me clarify, in case there is ANY doubt, that I am not a lawyer and nothing here should be construed as legal advice. It's just my reading of the gobbledy gook that comes out of bureaucratic word processor sorts. This is long, long, long, and for those you like it short and sweet, I just have one question. Why do you read my longwinded self? No, seriously- an important point to remember:
This is NOT about items actually having lead or other noxious substances in them. It's about ALL children's products intended for use by children 12 and under being considered to have lead in them unless they have expensive third party testing and certification proving they don't. It's about vague, confusing wording, and overarching government freak-outs that don't actually address the problem they are supposed to fix.
And then some.
In my previous post, one commenter dismissed concerns about the Consumer Protection Act by using that same emotional catch phrase the government and other institutions and individuals have used to avoid logical discussion and justify over-reaching abuses of power for a very along time. Namely, "it's all about the children." That is supposed to suffice. Only moral cretins would be opposed to any government action taken 'for the children.' And anyway, objections to this bill are wrong headed and based on sensationalism and irresponsible journalism. Corey also talked a lot about sticks, but I couldn't figure out what that had to do with politicians once more passing a bill they clearly hadn't read and could not understand the consequences of (and yes, I ended that sentence with a preposition). The jist of the objections seem to be it's all for the children, and it's only about plastics and toys I don't like anyway, so what do I care? But it's not for the children, it's not limited to plastics and toys, and it is a bill that will put small businesses and cottage industries out of business. I don't understand the attitude that if it doesn't affect me personally or something I care about, I shouldn't care what the government does.
Here is some information from the government's website on the bill, though it's important to note that they do not encourage you to rely on their interpretation ("These FAQs are unofficial descriptions and interpretations of various features of CPSIA and do not replace or supersede the statutory requirements of the new legislation. These FAQs were prepared by CPSC staff, have not been reviewed or approved by, and may not necessarily reflect the views of, the Commission. Some FAQs may be subject to change based on Commission action."):
What is the definition of a children's product and how will the age cutoffs be determined?
A "children’s product" means a consumer product designed or intended primarily for children 12 years of age or younger.
Putting a label saying 'not for use by children under 12 won't be good enough because one of the criteria for deciding whether or not is a product for children under 12 is:
Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.
Corey says it's only about plastic/painted toys, but the government link Corey provided also says it's about books, board games, posters, CDs and other such items:
Does the new requirement for total lead on children's products apply to children's books, cassettes and CD's, printed game boards, posters and other printed goods used for children's education?
In general, yes. CPSIA defines children’s products as those products intended primarily for use by children 12 and under. Accordingly, these products would be subject to the lead limit for paint and surface coatings at 16 CFR part 1303 (and the 90 ppm lead paint limit effective August 14, 2009) as well as the new lead limits for children’s products containing lead (600 ppm lead limit effective February 10, 2009, and 300 ppm lead limit effective August 14, 2009). If the children’s products use printing inks or materials which actually become a part of the substrate, such as the pigment in a plastic article, or those materials which are actually bonded to the substrate, such as by electroplating or ceramic glazing, they would be excluded from the lead paint limit. However, these products are still considered to be lead containing products irrespective of whether such products are excluded from the lead paint limit and are subject to the lead limits for children’s products containing lead. For lead containing children’s products, CPSIA specifically provides that paint, coatings, or electroplating may not be considered a barrier that would render lead in the substrate inaccessible to a child.
So yes, books are included. And the testing is 3rd party, and certification is required.
The requirement for third party testing is onerous for small cottage industries:
When the lead paint limit is lowered to 90 ppm on August 14, 2009, third-party testing by accredited third party laboratories will be required for children’s products manufactured after that date.
Stuffed animals:
Does the CPSIA envision stuffed animals falling within the scope of the CPSIA’s lead limits or phthalate limits?
Most stuffed animals would be considered to be children’s products and presumably toys. A manufacturer would need to determine whether the design of the stuffed animals is such that it is subject to the lead paint limits, the lead content limits or the phthalate limits.
And packaging in some cases would require certification:
However, if the packaging is intended to be reused, or used in conjunction with the children’s product, such as a heavy gauge reusable bag used to hold blocks, it becomes a component or part of the product, and would be subject to the lead requirements of CPSIA.
Drawstring bags for blocks, cars, or paperdolls would be packaging intended for reuse.
It's not just toys:
What furniture articles are exempt under CPSC regulations? Do the lead paint limits apply to furniture whether or not the furniture is intended for children?
16 C.F.R. § 1303.1 provides that the lead paint limits apply to toys and other articles intended for use by children, as well as furniture articles for consumer use that bear lead-containing paint. Furniture articles include, but are not limited to beds, bookcases, chairs, chests, tables, dressers, desks, pianos, console televisions, and sofas.
Note- toys and other articles intended for use by children, and the open ended 'not limited to....'
It does appear that items manufactures prior to November may be alright:
What certifications are required for children’s products that are tested for lead content?
Children’s products manufactured after February 10, 2009, when the lead limit may not exceed 600 ppm, will need a general conformity certification based on a test of the product or a reasonable testing program for products after that date. Children’s products manufactured after August 14, 2009, when the lead limit may not exceed 300 ppm, will have to be certified based on third-party testing of the product by accredited third party laboratories after that date.
If you have a "children’s product" with possible lead content, do you have to have a certificate on November 12, 2008, even though the lead rule is not effective?
No. The lead content limits for children’s products do not go into effect until February 10, 2009. As stated above, children’s products manufactured after February 10, 2009 (600 ppm), will need a general conformity certification based on a test of the product or a reasonable testing program for products and children’s products manufactured after August 14, 2009 (300 ppm), will have to be certified based on third-party testing of the product by accredited third party laboratories.
Whoops- not so. Here's a letter found on the government's website stating:
In light of requests for guidance at our public meeting on September 4, 2008, you have
asked the Office of the General Counsel to provide you with this advisory opinion to provide to
the public on whether section 101 regarding lead in the Consumer Product Safety Improvement
Act of 2008, Public Law 110-314, 122 Stat. 3016 (August 14, 2008) ("CPSIA") applies to
product in inventory or on stores shelves prior to the effective date of those provisions, February
10, 2009, or only to product manufactured after that date. This memorandum sets forth the legal
analysis supporting our conclusions that products that contain lead above the limit set in the
CPSIA cannot be sold from inventory or on store shelves after February 10, 2009.
But it's important to note that 'possible lead content' in the earlier quote doesn't really mean possible, and certainly not probable, lead count. 'Possible' lead count would cover everything that isn't certified, as items for children 12 and under will be considered to have lead in them unless the expensive and onerous third party testing is done. It would be more accurate to say, "Items that haven't been certified." All items are guilty until proven innocent. So it's not that products that contain lead cannot be sold- that would be reasonable enough- it's that products that haven't been tested and certified cannot be sold from inventory.
It's unclear to me whether the retroactive application is actually legal, nor is it clear whether or not it applies to products that actually are known to contain lead or only to products that haven't been certified- the letter seems to me to state both things.
Under Playground equipment we find this:
In addition section 101, entitled "Children’s products containing lead; lead paint rule" imposes lead content limits on all children’s products, which includes outdoor playground equipment.
Two points- adaptive equipment for disabled children includes a lot of specially equipped playground and therapy equipment, much of it made with products that don't contain lead in the first place. That won't matter under these guidelines. And note that very comprehensive "ALL children's products" are covered under section 101.
It seems clear to me as well that they aren't really simply saying "no lead products," which sounds all nice and 'for the children' noble. But many of the products that fall under these requirements do not have any lead to begin with. What I understand these rules to truly mean is this rule "imposes testing and certification requirements on all children's products regardless of the likelihood that they contain any lead," which is not the same thing.
Individual components, such as rivets (which are not normally plastic or painted):
How will the lead in substrate provision be applied to products like strollers, playpens and other juvenile products? Will it be applied to every single part, including rivets?
The new lead limits will apply to the total lead content by weight for any part of the product. Some children’s products or component part of products may be exempted or excluded from the new lead limits if the parts containing lead are inaccessible. Inaccessible parts do not need to meet the lead limits and the Commission will provide guidance by rule within one year on what component parts are considered inaccessible. Until that time, it is the manufacturer’s responsibility to determine which parts of its products are accessible and therefore must meet the statutory lead limits.
I don't know the science behind this, but what I find interesting is that manufacturers are responsible for following the law while the government hasn't even worked out the details yet:
Is the use of XRF analysis for compliance testing with regard to lead in substrates under consideration or will wet chemistry be the only method used for testing lead content in substrates?
The use of XRF analysis for lead content is being considered. CPSC Directorate for Laboratory Sciences, Chemistry Division (LSC) will post the methods it will be using on the CPSC website in the next few months.
Beads and other craft supplies (question: Do children's clothes ever have beads on them? Why, yes, yes they do. I know crafters who make beautiful beaded crocheted socks with dozens of different beads crocheted into the sock cuffs)
We sell craft materials, some packages of beads can have 12 or more colors of beads. Can we composite 3 or more colors at a time to test the beads?
No. Compositing to combine different paints or substrates from one or more samples to reduce the number of tests run may fail to detect excessive levels of lead in one individual paint or substrate because of the effect of dilution by non-lead-containing samples. This approach is therefore currently not acceptable. The only exception to "compositing" is when labs have to combine like paint from several like parts or products to obtain a sufficient sample size for analysis because there is an insufficient quantity of paint on one item to perform the testing.
Some pens may be covered:
The tip on ball point pens are made from leaded brass and there is no source for materials as the lead in the brass is required to machine. Is it ok for children to use ball point pens?
The lead ban is applicable to children’s products containing lead. The term "children’s product" means a consumer product designed or intended primarily for children 12 years of age or younger. Accordingly, to the extent that these pens are general purpose items not being marketed to, or advertised as being intended for use by children 12 years or younger, these pens would not be subject to the lead limits under CPSIA.
Clothing? I still haven't seen any reason to suppose they are excluded. Nothing I've seen yet says so, and if backpacks are covered (and they are), why wouldn't other fabric items?
A bag factory in China has told me that the new requirement of lead content in the material for children’s bags (we are looking at backpacks specifically) is 300 ppm, effective August 14th. Is this a general requirement referred to in the CPSIA legislation or is there somewhere where bags and/or bag materials are referred to specifically? Is there a complete list of products that can be searched and then linked to specific rules for that product, testing requirements, etc.?
Section 101 of the CPSIA provides that any children’s product designed or intended for children 12 years of age or younger, which would also include children’s bags, must meet the lead limits. Bags and bag materials are not discussed separately in the legislation. Testing and certification requirements are set forth under section 102 of the CPSIA and are being announced on the CPSC website at http://www.cpsc.gov/about/cpsia/cpsia.html.
See, to me a better fix would be to consider all items of Chinese manufacture to be lead-based until proven otherwise, since the Chinese manufacturers are the source of the lead items that have had to be recalled.
Reading over the FAQ, there were a disturbing number of issues 'to be determined,' or subject to change. I don't, as I have said, even believe Congress knows what it passed. This makes the following attitude extremely irksome:
On what does my certification have to be based?
The general conformity certification must be based on a test of each product or a reasonable testing program.
Where must these certificates be filed?
A certificate does not have to be filed with the government. As noted above, the certificate must "accompany" the product shipment, and be "furnished" to distributors and retailers, and be furnished to CPSC upon request.
Will the CPSC review my products and determine for me: (a) whether new or previously existing regulations, standards or bans apply to my products; (b) whether I need a certificate of compliance; and (c) whether the product complies with all applicable laws?
No. The CPSC has received hundreds of requests to evaluate specific individual products and specify what bans, standards, regulations, etc., apply to those products. The Commission does not “pre-approve” products for compliance with its standards, bans, regulations or rules. It is the responsibility of the manufacturer of the product, as a normal part of doing business, to know what legal requirements of the Commission or otherwise apply to its products. The CPSC Web site provides detailed information for businesses regarding the specific products and tables of regulated products for which CPSC has issued mandatory standards (http://www.cpsc.gov/businfo/regsbyproduct.html).
When the law makers refuse to make themselves responsible for knowing the laws they pass, how is it reasonable to burden their victims with such a responsibility? Ignorance of the law is no longer no excuse, it's unavoidable.
Are tracking labels required on domestically made products or are they only required for imported products?
Tracking labels are required for all children’s products manufactured one year after enactment of the CPSIA (August 14, 2009) regardless of whether they are domestic or imported products.
Will the tracking label requirement be met if premiums are labeled with a date of distribution, a production date and trademark information?
Section 103 of the CPSIA requires that the tracking label provide, "to the extent practicable," marks that will enable the ultimate purchaser to ascertain the manufacturer or private labeler, the location and date of production of the product and cohort information. A label stating only the date of distribution, a production date and trademark information would not satisfy the requirements of section 103. Such a label would lack information identifying the manufacturer or private labeler, the place of production and cohort information.
Could hangtags and adhesive labels be used as tracking labels for textile-type items?
No. The law requires that markings with the specified information be permanent. Hangtags and adhesive labels are not permanent.
Hmmmm. Textile-type items? That sure doesn't sound like this bill is limited to plastics and junky toys, does it?
The law requires manufacturers to start labeling product and packaging one year after enactment. Does that mean it would affect products manufactured for the 2010 retail season or that items in retail stores would already have to have tracking labels as of August 2009?
The law requires that one year after enactment, or August 14, 2009, manufacturers of children’s products must place permanent marks on their product providing the information specified. Thus, the Commission staff believes that the tracking label requirement applies to children’s products manufactured on or after August 14, 2009.
Will the Commission be providing specifications or guidelines as to size, location and format of the tracking information required by section 103? Or as to the meaning of "to the extent practicable"?
The Commission may issue implementing guidance on these issues. It should be noted, however, that the requirement to provide tracking information is mandatory regardless of whether the Commission provides such guidance.
That's rich.
Translation: "We don't really know what the legal requirements would be or how you should meet them. We believe it applies thus and so, but we can't make a firm determination. We're not going to define vague terms like 'to the extent practicable,' either. You just have to hope you read our minds and guess right."
This seems to indicate clothing is excluded, but I don't see how, then, stuffed animals, board games, CDS, or posters are included but clothing isn't:
Will infants’ crib bedding, blankets, bath textiles, and apparel fall under the heading of "durable product"?
No. Congress did not define the term "durable," but it is commonly understood to mean able to exist for a long time without significant deterioration. Cloth/textile items are generally not considered to be durable goods. None of the items Congress specified in section 104 as examples of durable products are items made entirely of cloth, rather they are primarily made from rigid materials (e.g., cribs, toddler beds, high chairs, strollers, bath seats).
I've found sheets and clothes much more durable than plenty of children's toys, and certainly more durable than posters (which are covered).
And then we go back to the components, issues like beads, zippers, buttons, and trim.
Here's a prize example of all that is wrong with the bureaucracy we have today (and this bill):
A shoe intended for a child would be a children's product for purposes of the lead provisions of the CPSIA but not a toy within the meaning of section 108's limits on phthalates unless it has some play value, eg, a shoe made for a doll.
The views expressed in this letter are my own and not reviewed or approved by the Commission.... They may be superseded at any time by the General Counsel, by the Commission, or by operation of law.
So shoes are required to have the lead certification, whether or not there is any reason to supposed they might have lead in them. Many cottage crafters do make children's shoes (see here or here for examples)
They do not have to meet the phthalate certification- but shoes made for dolls would because they are now toys. Well, what about doll-clothes? Are those considered 'toys?'
It is appalling that the Commission is unable to give a definitive answer about what and isn't covered.
Here you can read a letter Amazon sent to a vendor. Take away quote:
"Any children's products which are not so confirmed are subject to removal from the Amazon.com catalog, and Amazon.com will be entitled to return to you for a full refund (including shipping costs)..."
'So confirmed' is a reference to the required certification- the item is considered to include lead unless you can prove otherwise.
Here's a blogger writing about it (thanks to Heather).
Here's a link to a blog post with a survey to show the economic impact this will have on small cottage industries, as well as a host of links ot other articles on the CPSIA mess.
I would suggest also checking in at the Etsy forums on a regular basis- search for CPSIA for discussions.
That's where I found this link, which has some fascinating information, especially of you read between the lines:
The Consumer Product Safety Commission voted to exempt electronic goods and products with lead embedded inside from new rules banning the metal in toys.
The two-member commission, reacting to complaints from manufacturers, also agreed to exempt natural products such as gems and cotton from mandatory testing for lead. The proposal, given initial approval today, will be open for public comment for a month and may be altered.
[...]
The CPSC exempted wool, cotton, silk, gemstones and pearls in its proposal today.
Points: THIS IS A TWO MEMBER COMMISSION? TWO members? That's all?
IF they had to VOTE to exempt cotton, silk, and wool just today, (and these things are textiles) this means that up until today, cotton, silk, and wool were INCLUDED under the testing and certification requirements. Felt toys, stuffed animals, soft shoes, and on, and on, and on.
Does anybody think they would have had such a vote if the crafting and toy manufacturing communities had not been publicizing what is happening and speaking out about it? I don't.
BOOKS, again, are definitely included:
That expansion has ensnared makers of products such as bicycles and books that never thought of themselves as toymakers, said Ed Krenik, a lobbyist at Bracewell & Giuliani LLP in Washington.
The law also forces all makers of children’s products to get independent tests of their toys to prove they don’t contain lead.
What expansion? This one:
"this act provides the greatest expansion of the Consumer Product Safety Commission's ("CPSC's") authority since Congress first established the agency in 1972."
You should probably read the entire thing. I didn't find it very reassuring. I'm even less reassured upon discovery that this is a two member oligarchy.
Here's an important blog to bookmark. Here are some talking points for those who wish to contact their Congress Critters and ask them to recall this bill, which is as damaging as the lead it is supposed to eliminate:
a. The CPSIA is harmful because the reach of its lead rules is too great. The notorious recalls of 2007 related to lead-in-paint (already illegal) and lead jewelry for kids. These are the only instances of lead in children's products for which there is a documented link to ACTUAL injuries. In other words, the concept of "total lead" has never been linked to real, documented injuries (injuries that have names, addresses and descriptions attached). By overreaching the real risks, huge problems occurred for everyone concerned with being compliant with law. Under the CPSIA, everything is suspect, even though common sense and common experience informs us that the risk is virtually nonexistent with the above limited exceptions. Had the law been tailored to address lead instances that actually present a known risk of injury, MANY industries and businesses would have been spared coverage by this law. The cost of compliance would have come down significantly as well.
b. The CPSIA also overreaches in the definition of children's products. By sweeping in ALL products intended for children up to age 12, the law draws in far too many products with making any rational relationship to known, actual risks. It is well-documented by the CPSC that children over three don't put toys in their mouths - so why extend the age range all the way to 12 years old? When discussing this issue with legislators over the past year, the rational presented to support this term is that 12 year olds "often have a two-year-old sibling who may get into their [toys]". This is patently absurd on several levels. First of all, the risk of unsupervised toddlers is controlled by PARENTS, not manufacturers. There shouldn't be an obligation that all children's product be designed to permit absentee parenting. Second, there is little or no data to suggest that this theoretical risk of injury actually results in injury. Yes, little kids can hurt themselves by getting into Big Brother's stuff - but do they? No. Third, the notion that little kids will likely get into the older kids' stuff - but not the parents' stuff (unregulated) or other household items (what about Fido's toys - which look just like Junior's?) is simply contemptible. Two-year-olds are not known to prefer chewing on the shoes of pre-teens over Daddy's slippers, and if anything would be attracted to dog toys which are always found on the floor in easy reach. Think about it - did Congress endorse gruesome injury from those other items, but thumbed its nose at injury from a sibling's possessions? Come on - their exclusion of those other items from the lead standards is a tacit acknowledgement of the arbritrary placement of the line.
More links and updates here.
A big thanks to those of you who have passed on links.
Updated to add:
HotAir gets on board and reports on the CPSIA act:
It’s for the kids. Those four words can justify all sorts of mischief in expansion of government powers, and the new Consumer Protection Safety Improvement Act is the latest example.
See Hot Air for more-
Updated to add: I've been googling and found some very interesting political history behind this bill. See here for more.
