Nancy Nord and the CPSC responded to Rep. Dingell’s questions about the CPSIA today. You should take a look, they had a lot to say. There were so many recommendations made all the way through the letter that would provide badly needed relief, that I have to admit I was disappointed that it ended with just three bullet points promoted:

“We conclude that the following three changes would resolve many of the major difficulties identified above:

• Limit the applicability of new requirements to products manufactured after the effective date, except in circumstances where the Commission decides that exposure to a product presents a health and safety risk to children.
• Lower the age limit used in the definition of children’s products to better reflect exposure and give the CPSC discretion to set a higher age for certain materials or classes of products that pose a risk to older children or to younger ones in the same household.
• Allow the CPSC to address certification, tracking labels and other issues on a product class or other logical basis, using risk-assessment methodologies to establish need, priorities and a phase-in schedule.”

The 21-page response did also note (my interpretation):

• They have been underfunded and understaffed, crippling implementation and other duties
• The spectrum of industries affected is enormously broad
• Risk assessment should be used to establish priorities
• Implementation deadlines should be extended
• The cost to businesses, especially small and micro-businesses is significant
• Toxic substance limits should be based on “the possibility of exposure in relation to age” rather than total content
• The law should not be retroactive
• Age limits should be lowered and established by product class
• The CPSC should have more discretion in implementation, to grant exclusions and set age limits

They discussed books at length, including my favorite passage:

“At this time the Commission staff has not had the time or resources to prove that books made more than twenty years ago do not exceed the lead limits as staff has needed to focus its resources on its investigations of deaths and injuries to children and other emerging risks and health hazards.” Since those deaths and injuries are not occurring in libraries filled with old books, this is obviously a huge waste of time. OK, I added that last part, but seriously.

I also enjoyed the full page of legal citations refuting the claims of “Those who argue that common sense exclusions are permitted by the CPSIA”.

This is generally good, but I guess I’m left unsatisfied because while the challenges for small and micro-businesses (crafters are mentioned specifically on memo page 9) are recognized and articulated, the proposed solutions for us are sketchy at best:

“Recognizing that the Commission always has the ability to take action to address unsafe products in the marketplace, Congress could take many different approaches to mitigate the effects on small businesses. Congress could apply the new lead and phthalates limits prospectively to mitigate the impact on inventory existing prior to enactment. It could allow for a more flexible exception process based on balancing of risks against the burdens of the costs of testing and certification but that could overburden staff. Another option would be to allow the Commission the flexibility to decide what children’s products require testing and certification.”

Which basically sounds like the viability of our businesses is tied up in the third bullet of their conclusion, and may ultimately be left up to the discretion of the overburdened, understaffed CPSC, should Congress grant them that discretion. Not exactly a silver bullet.

Note: on page 9 of the memo, I’m thinking that’s supposed to be 763, not 963.

If you haven’t read Congressman Dingell’s letter to the CPSC, you must. This is sharply different from anything else I’ve heard out of Democrats in Congress, in that he admits that there are problems with the CPSIA that merit immediate attention, and is apparently open to resolving them legislatively. His letter poses several intelligent questions to the CPSC about the problems and possible solutions, and requests an urgent response by this Friday, 3/13.

Get busy: If you are negatively impacted by the CPSIA, respond to his questions directly so he will know first-hand how the CPSIA is working in the real world.

Rick Woldenberg posted an email address on his excellent blog, CPSIA – Comments & Observations where you can send your response to Rep. Dingell’s letter and it will be delivered to both the CPSC and Rep. Dingell’s office along with all the other responses sent in. This is a great way to make sure your letter is noticed and has impact. Start writing!

When you are done with that, you might stop by Reform CPSIA, where they are collecting the stories of those impacted by the CPSIA in order to showcase the literal impact this law is having. I think it’s a great step toward making our plight more tangible.

I know it’s a lot of work, but if you only do one thing, at least write to Rep. Dingell and let him know how critically his support for amending this legislation is needed. He’s the first to open the door, let’s be sure to get our foot in.

Dear Mr. President:

Like so many others, I worked hard to get you elected, and I’m thrilled that our collective efforts were fruitful. Solutions to real problems require a measured, thoughtful and reasoned assessment of myriad issues too often top-lined for the sake of media sound bites or political sparring. Your ability to both weigh and articulate complexities is one of the reasons I voted for you.

So I am asking you now to apply that skill to the very real problems with the CPSIA. This is not a business vs. children issue, as it has been portrayed. As a mother, a liberal, an environmentalist and small business owner, I welcome the new limits on harmful materials in children’s products, just as ardently as I oppose the irresponsible and destructive aspects of this law, which do not improve safety. These include:

RETROACTIVE APPLICATION OF NEW STANDARDS has created immoral and unnecessary waste, not to mention lost profits and productivity, confusion and closed businesses. Wasted unsalable new inventory and used goods. Businesses, non-profits and individuals scramble to follow the law and the CPSC’s specific directions to sequester books published before 1985, and dispose of, rather than donate or sell used clothing bearing buttons, snaps or zippers, as well as untested toys and other products. This is particularly unconscionable considering that there are no reported injuries attributed to these products. Products found to cause injury have already been recalled, and are therefore already unlawful to sell, making this completely unnecessary and shamefully wasteful.

END PRODUCT TESTING has forced small producers out of the market, ironically leaving the spoils to the same large companies – manufacturing overseas – who are guilty of the very offenses that spurred Congress to create the CPSIA in the first place. While it may seem reasonable to test each component of a completed made-in-China “Dora” doll before selling millions of them, that logic does not hold up when applied to testing each component of a completed domestic handmade dress before selling three of them. Expensive third-party testing is simply not practicable for small producers, and as their products have not been shown to be the offenders, imposing regulations that force them out of the market is unfair, un-American and considering the current economy, unwise. What does make sense, affords greater safety and efficiency, is requiring manufacturers to use CPSIA compliant materials and manufacturing processes.

I have had to close my hair accessory business because testing is simply not an attainable option for a small producer of custom products. Congress has made it painfully clear how expendable and insignificant they consider my plight through their profound lack of response to my repeated requests for CPSIA reform. But I believe my situation is representative of thousands, and worth a closer look.

If family integrity is revered at all, the entrepreneurial efforts of mothers providing their families with needed income while home caring for their children should be valued and encouraged, not ignored, disparaged, or regulated out of existence. And it goes well beyond moms like me, working from home. My local consignment shop, a 26 year old family business, has stopped selling children’s items – previously the largest portion of their sales. I’m afraid to sell my own kids’ outgrown clothing, which typically funds their next year’s wardrobe. Our school district and local library are biting their nails, waiting, hoping for reasonable reform before the stay of enforcement expires. Even many domestic manufacturers far larger than myself can’t afford to comply with testing requirements and are on the brink of collapse. Personally, I have lost my disposable income, and with it, my ability to stimulate the local economy. Multiply these experiences by tens of thousands across the country.

And while businesses hobble along, crippled by the CPSIA, close up completely, or operate unknowingly in violation (risking significant liability) Congress deflects responsibility and plays politics with the CPSC. The complete unwillingness of Democratic lawmakers to even concede there is more to the story than big business vs. children’s safety is excruciatingly disheartening to me as a liberal, forsaken by my own party.

I beg you to intervene. Please make CPSIA reform an urgent priority, for the sake of small business, consumer safety, and our children. Far more of them will be compromised by their parents’ loss of income than could ever be compromised by reading old books or wearing jeans with zippers.

Sincerely,

Jen DeGrace
Jen Lynn Designs

Please continue to make your voice heard. Only sustained and growing public outcry can possibly affect change.

I visited my local consignment shop today, Second Time Around, and was sad to hear that not only are they no longer accepting or selling children’s items (the store was completely cleared of them!) but that the change may mean the end of their 26 yr old family business. She told me she’s had clients in her store literally cry upon hearing the news, not knowing how they are going to clothe their kids. I guess they’ll go to Walmart or Target? Hmmm… is it just me, or is it starting to seem like the big box stores have more to gain from this legislation than consumers?

I’m not giving up. Even if it is too late for me, it’s not too late for sanity. I’ll be sending out a new round of letters today and tomorrow to make sure my pen-pals know they’re responsible for shutting down my business. This batch includes:

Oh yeah, I also emailed our school district superintendent to ask how CPSIA is affecting the schools. Just curious.

I’d love to hear from others, either publicly by adding your comment here, or you can email me and let me know what you are doing, and how this is affecting you either as a business or as a consumer. Anyone you’d like me to add to my letter & email writing campaign? I think I’ve still got a few envelopes left.

I promise to post something fun and crafty tomorrow.

It still comes down to the fact that the CPSC’s authority is limited, and the law is the law. Keep up the pressure on Congress to change the law so that the CPSC and small businesses trying to comply aren’t put in the position of finding ways around it. The best news today is that Senator Jim DeMint from South Carolina announced his intention to do just that. Email Senator DeMint and your own reps in the House and Senate again today to make sure they don’t back down in the face of pressure from powerful CPSIA backers with their armies of lawyers and lobbyists.

Rep. Jim DeMint announces intent to reform CPSIA
CPSC’s Press Release
Associated Press Coverage
Fashion-Incubator on the Stay

Citizens: contact your representatives and let them know that their mistakes are only dishonorable if they won’t admit them, and the law is only flawed if it they don’t fix it. The buck stops at Chairman Waxman’s desk, as he chairs the Energy and Commerce Committee. Be sure to include him in your correspondence to your representatives, as well as the bill’s sponsor and Subcommittee Chair, Bobby Rush and Energy and Commerce Committee Ranking Member Joe Barton (see his 1/21/09 letter to Chairman Waxman which notes constituents’ concerns.)

For those just catching up with CPSIA legislation and wondering what all the fuss is about, here is a brief introduction:

HR4040, The Consumer Product Safety Improvement Act of 2008 (CPSIA).
There has been a lot of misinformation about this law due to its great scope and complexity, but it does mandate changes that may well affect most of us.

The law is a response to the recalls of toys made in China with lead-tainted paint. It was widely appreciated and easily passed, as we are all eager to protect our kids. However, lawmakers are now becoming aware of some unintended consequences of the 63-page law. Though it was written to address the above problem, it applies so broadly, that several issues have come to light. Just two of these issues include:

“When it comes to resellers, there is not a requirement for them to test. There is a lot of misinformation being floated out by the media, by the mommy blogs, by others blogging on legislation that they’re just not understanding, and it needs to be clear, and it needs to be concise, in terms of their requirements under the law.”

So Ms. Vallese clarified it for resellers:

“What second-hand shops need to do and understand in terms of their responsibility is, they do need to meet the law, the law does apply to them. How they meet that law, is not defined in the legislation.”

“There is a lead level limit of 600 ppm total lead that needs to be met. How a shop owner comes to their level of confidence is not defined in the legislation. They simply need to make a business decision, at a level of confidence, that the products they are selling meets the law.”

How did Ms. Vallese suggest they do this?

“They can look at it, and make an informed decision on whether or not that product meets the law, they could call the manufacturer of that product and ask them whether or not there was any lead used in the manufacturing of that product. Or they could test.”

“What consignment shop and thrift store owners should do, is use their best judgment on how they reach that level of confidence that they’re meeting the law.”

To further make her point, Ms. Vallese noted that the CPSC only has about 100 field investigators, and: “The agency will be putting those resources to use in places that we can address the greatest risk and those products that will cause the most harm.”

My take? The CPSC is encouraging resellers to take their chances with liability by “using their best judgment” because they are unlikely to be prosecuted. Hmmm… that sounds exactly like what we’ve been reporting. Thank you Ms. Vallese, for clarifying that the CPSIA really is as corrupt as we feared. My best judgment tells me not to accept a wink and a nod as a binding legal agreement from the CPSC or anyone else. Maybe it works in politics, but do they seriously expect businesses and non-profits to risk violations and penalties when livelihoods are at stake?