The Blog for GW Pens

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More on the CPSIA

Yes, the Consumer Product Safety Improvement Act (CPSIA) rears its ugly head once more in my blog. I read an article yesterday that talked about the effect of this law on toy makers, specifically ones in Vermont, as this was a Vermont based news outlet. A link to the article will be included at the end of this entry.

I was very glad to hear about it. In fact, this is one of many recent media tid-bits that are beginning to explain the impact the CPSIA will have on small manufacturers who are unable to afford this testing. Don’t get me wrong, it’s not that small manufacturers *want* to sell toxic items. The reality is that many of the items we sell simply are not toxic. I can tell you with 100% certainty there are no plastic softeners (phthalates) in my wood toys, yet I will be required to test for them anyway (PLEASE READ COMMENTS BELOW) as of February 10th, 2009 under the current wording of the CPSIA.

As I read more of this Vermont article, I was glad to see they were talking to somebody who actually had a part in pushing this legislation through in its current form. He is David Arkush- the Director for the Congress Watch division of Public Citizen. I was ready to see something in the form a “Whoops! We didn’t mean for that to happen” type of response, but instead I saw this:

“Arkush admits some of the mandates may sound absurd at first blush, such as testing wooden toys for phthalates, or testing cotton T-shirts for lead.

“But we’re erring on the side of safety,” he adds, “because this is about lead and other toxic chemicals that are very dangerous to children.””

What?! Radio activity is dangerous for kids too, maybe we should test the drinking water for it. I have no reason to believe it would be there, but kids drink water, and radio activity is bad for them. I mean c’mon, these are kids we’re talking about here, right?

So here I am, making a new push for us all to make our voice heard. Testing for the sake of testing is NOT an acceptable means of supplying the marketplace with safe toys. Smart testing, targeted testing, testing of items with a proven history of having contained these chemicals- THAT is what will give parents the peace of mind that their kids are safe when they are playing with that new toy or wearing that new shirt to their friends birthday party.

If you have not already done so, please take a moment of your time to write to your Representative, Senator and Speaker Pelosi about this through the following links:

https://writerep.house.gov/writerep/welcome.shtml

http://www.senate.gov/general/contact_information/senators_cfm.cfm

http://speaker.house.gov/contact/

You can also go to the Handmade Toy Alliance website for more information:

http://www.handmadetoyalliance.org/

And lastly, as promised, the article with Mr. Arkush:

http://www.7dvt.com/2008new-safety-law-no-fun-vts-artisan-toymakers

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28 comments on “More on the CPSIA

  1. David Arkush
    December 18, 2008

    I feel compelled to respond because the article to which you refer misquotes me. I did not say that we or anyone else support absurd rules because we are erring on the side of safety. Absurd rules would do nothing to promote safety.

    What I said was that some of the rules can be described in ways that make them sound absurd, but they aren’t. To take the phthalates example, the law requires only that toys be tested for relevant risks (as opposed to an absurd requirement that every toy be tested for every risk). If there is no risk of phthalates in a wooden toy, the toy will not need to be tested for phthalates.

    There is a lot of misinformation on the CPSIA floating around. It looks to me like a deliberate campaign by some large manufacturers who know better, but are whipping up fear and hysteria among smaller manufacturers for political purposes — sounding alarms about high costs and bankruptcies as a way of using the current economic crisis to renew the fight they lost last summer against a good product safety law. Maybe I’m mistaken, but that’s what it looks like. In any event, if there are real mistakes in the law, then they can be fixed. But I haven’t heard a single legitimate concern yet. Just misunderstandings.

    This situation is a bit like the old saying, “if it sounds to good to be true, it probably is.” Here, if it sounds to awful to be true, it probably isn’t. Please don’t be fooled into supporting policies that will make children less safe based on misinformation.

  2. grecowoodcrafting
    December 18, 2008

    Mr. Arkush- First and foremost, thank you for stopping by to talk about this issue. I want nothing more than to fully understand the exact impact of this law as both a father myself, and a small business owner that makes natural, unfinished wooden toys.

    While I am certainly relieved to know my toys won’t be tested for phthalates, I still don’t know how to continue production with the fee’s the labs are quoting. My commonly sold toys sell for $15 to $20, and I make them in “batches” of up to a half dozen.

    I would like to know why you believe this is being driven by large manufacturers when they are the ones that have a process in place to still maintain an actual profit margin, whereas business owners like myself will be forced to shut down?

    Why do you seem to give such little credence to the idea that this may largely be driven by the small business owners who are doing what they love to do, regardless of how little money it might make them?

    Your dismissive opinion of not hearing a “single legitimate concern” is a red flag indicating for me that, despite our best efforts, our cries for help are still falling on deaf ears.

  3. Leigh
    December 18, 2008

    “I haven’t heard a single legitimate concern yet.”

    I can’t tell you how dismayed and disheartened I am.

    Someone has yet to explain to me – and thousands of other manufacturers of children’s products – how it makes sense to require me to re-test products that have already been third-party tested and certified as safe by the supply manufacturer. One example – I use about 50 different shades of water-based acrylic paint in my items. They have been tested and certified as safe by the paint manufacturer. It would drive me out of business to bear the cost of testing these items (and that is assuming, of course, that the CPSIA will be interpeted to allow component testing, which is currently in public comment).

    If Mr. Arkush – or anyone else – can point to anything in the law exempting these items from re-testing, then I’d be happy to shelve my concerns. No one has yet to explain how it makes our chilren safer to require hundreds or thousands of manufacturers using the same components to each test those items repetivitely as either an individual component or in an end product. No one has yet to explain to me how my concern over having to close my business due to the overwhelming burden of re-testing these safe items is illegitimate.

    The fact that business owners’ concerns are being so easily dismissed as illegitimate is incredulous.

  4. dan marshall
    December 18, 2008

    Mr Arkush,

    Your opinion about the source of concern about the impact of the CPSIA is incorrect. The source of concern comes from small independent toy stores like mine who are finding out from their toymakers who have received quotes from third party labs that testing costs are exorbitant. Big toy companies that make plastic toys in China can go jump in the river as far as most of us are concerned.

    You state, quite reasonably, that “the law requires only that toys be tested for relevant risks (as opposed to an absurd requirement that every toy be tested for every risk). If there is no risk of phthalates in a wooden toy, the toy will not need to be tested for phthalates.” I agree this would be reasonable, but the testing labs are not taking this approach and the CPSC hasn’t exempted any particular material from phthalate testing either.

    It’s as if the FDA banned the use of a certain chemical in food and then required every producer from the guy at the farmers market on up to Kraft and Dole to prove via testing that their products don’t contain the chemical.

    This is a law where the devil is in the details and the details are going to drive a lot of good toymakers out of the market. I agree there is probably enough latitude in the law for the CPSC to make reasonable accommodations to help small businesses, but the CPSC, like almost every other government agency during the Bush adminstration, has been concerned first and foremost with the interests of big companies. Their repeated failures to stop dangerous toys made by large manufacturers is only the most egregious example of this. Their current insularity and lack of concern for small manufacturers is in the same mode of behavior.

    We want safe toys and we agree with bans on lead and phthalates–we are only asking for an enforcement mechanism adapted to the needs of small manufacturers.

    Dan Marshall
    Peapods Natural Toy Store, St. Paul, MN
    &
    the Handmade Toy Alliance

  5. Jennifer van Vorst
    December 18, 2008

    I would just like to comment on this law. Although there has been a lot of discussion about toys this law also mandates that ALL children’s products intended for children under 12 years MUST be tested for lead DESPITE what they may be made of. It doesn’t make any distinction between products…it says ALL. That means that as a maker of handmade custom blankets, bib and burp cloths I will be required to test everyone despite the fact that i use certified organic cotton fabrics purchased in the US (GOTS certification only allows for 1ppm of lead). As a mother of two boys I understand the need to keep our children safe but punishing those whose products have always been trusted is only going to hurt us in the long run. I will never trust companies like Mattel to have my children’s best interest at heart and soon I will have no choice than to buy my toys from them. This law is full of unintended consequences.

  6. Meg
    December 18, 2008

    I’m curious to know from Mr. Arkbush about this comment from the article…

    “Although Arkush says he’s only now starting to hear from small, independent manufacturers, he believes the claims about excessive testing costs are the result of poor information from the Consumer Product Safety Commission, if not a deliberate misinformation campaign. ”

    Many crafters & artisans HAVE gotten bids to have their products tested and in the volume the are producing it is just not financially feasible. Here is a breakdown one artisan wrote about on his/her blog. These are actual bids given the them by some of the approved third-party testing facilities. http://www.happypandababy.com/blog/2008/12/16/cpsia-testing-research-for-happy-panda/ For example from one of the bids provided, you’d have to sell 75 $10 bibs just to cover the $750 testing fees and that’s not covering any of your costs of producing the bib in the first place.

    What are your thoughts on the testing of components at the original production point?

  7. Concerned business owner
    December 18, 2008

    Mr Arkush-

    Can you please provide reference to where in the legislation it states that this testing is only applicable to certain kinds of materials? Based on everything I have read, there is no distinction made on certain tests only applying to certain materials. From what I have seen, it has all been written in a way that shows everything intended for children must be tested and certified.

    The small business owners I know are just looking for assurances that we can continue to stay in business without risk of fines and felony convictions. If we are bound by this legislation, then discontinuing business really is the reality for a lot of us. So that is a legitimate concern.

    If as you say though that is a misconception and something like an all-natural wooden toy would NOT be bound by the legislation, I would like to know where I can locate documentation that supports that within the legislation.

  8. Kevin
    December 18, 2008

    Mr Arkush,

    The law specifically states that every manufacturer must have third party testing for every rule that covers the product. I suggest you read the actual law because it does not say what you seem to think it does. From Sec 102:

    “before importing for consumption or warehousing or distributing in commerce any children’s product that is subject to a children’s product safety rule, every manufacturer of such children’s product…shall…submit sufficient samples of the children’s product…to a third party conformity assessment body…to be tested for compliance with such children’s product safety rule”

    Edited only for clarity not meaning. Please explain how that can be interpreted to mean anything other than if the rule covers your product you have to have it tested, because I can’t see it.

  9. Kevin
    December 18, 2008

    Bryan,

    A manufacturer is an entity that makes something. Please point to the provision in the law that says it only applies to companies that produce tens of thousands or millions of units.

  10. littlethings
    December 18, 2008

    Brian, I believe that the law was initially as a result of and intended to target the larger corporations whose production lines are located abroad, but the regulations make no such distinction. It states ALL products directed at children 12 and under. Therein lies one of the issues. Frankly, I’m not in a position to be the legal test case for intent vs. letter of the law.

    Those sellers on sites like eBay and Etsy are upset partyly because if we are regulated out of business, we no longer have those sites as venues to sell on, per their Terms of Use for illegal items.

    “National Bankruptcy Day” is a term that was coined by Mr. Woldenberg of Learning Resources. His testimony is posted on YouTube, but has also been put on numerous blogs regarding this issue regarding the financial constraints this bill will have on his company.

  11. Kevin
    December 18, 2008

    What is being asked for is that the intent of the law and law as written match each other, not to gut the law. You and Mr Arkush want to apply common sense, but this is the federal government and the courts we’re talking about here.

    The provision you refer to states the CPSC can create an exemption for subsection A of section 101. There are no exemptions in section 102.

    And this is not just about lead and phthalates, there are a number of other regulations. Small parts, sharp edges, sharp points, etc.. I have a specially calibrated instrument in my workshop, called my finger, which is capable of determining if there are sharp edges on something. I don’t need to send a minimum of 12 units for a valid sample to a lab to tell me. How can I ever make a custom toy for someone when I have to make 12 to get it certified?

    Also take a look at Sec 102 (h) Rule of Construction, which if I am reading correctly says that despite having been tested if you aren’t in actual compliance you’re SOL. So there isn’t even any protection for the manufacturer in exchange for all this testing.

  12. littlethings
    December 18, 2008

    Bryan, first, I apologize for misspelling your name.

    No one is asking them to “gut” the regulations. I have three children myself, 10, 7 and 2. While I generally don’t purchase that many mass-produced items for them, the recalls over the past couple of years have been of concern.

    Yes, Mr. Arkush hinted that those materials of low risk were not targeted. Unfortunately, I make bibs and blankets (cotton fabrics, widely available), both defined under “child care items.” All of these items would have to be tested for phthalates by me (via third-party lab), the manufacturer. I’m not disputing that we should be sure these products are safe; if I felt they weren’t, I wouldn’t be doing what I’m doing. I have used these products with my own children. What I am disputing is cost-prohibitive, redundant testing. Cost prohibitive, as my testing would be in the range of $300 per material, notion, and thread used. An estimate on the fabrics I currently have and use would be in the tens of thousands of dollars. This does not consider any newly purchased fabrics, notions, etc. Redundant because I and thousands of other people doing what I do will be testing the same fabrics, notions and thread. Or paint, or yarn, or whatever their medium is. Would not a more cost-effective and efficient plan be supplier testing? Or perhaps another method.

    I would disagree with one point. While yes, the larger companies would benefit from a rewriting of these regulations, no one is trying to give them a pass so that they may get away with the same sins again. We are trying be sure that the ramifications for us, the “niche” producers (for lack of a better term), are considered, as well as those for stores and boutiques we supply and companies we purchase supplies from.

    And you may be right, perhaps they won’t be targeting the “small time” Etsy/eBay/crafts fair set. Do I want to take the chance and risk steep fines? And I hope that a sane and rational solution can be found. However, as it stands today, I am preparing for the worst while hoping for the best.

  13. Bryan
    December 18, 2008

    Kevin, point noted about 102. One of the summaries/FAQs I read referred to exemptions from testing, so I’ll have to look into it further. What I’m focused on is the lead/phthalate ban in HR4040, which is what the etsy crafters are most concerned about. “How can I ever make a custom toy for someone when I have to make 12 to get it certified?” To me, that’s a question that answers itself. Why would anyone in their right mind set out to enforce that?

    littlethings, I wasn’t trying to imply that it is the etsy crowd trying to gut the law. They are understandably looking for clarification and protection from being completely shut down by the law, which in my mind would constitute abuse of the regulations. The ones that want the regulations gutted are the lead and toy industries, who always have opposed these sorts of things and always will.

    I agree with your assessment and position on redundant testing. The way I see it, if a woodworker paints his playthings with paint billed lead-free, that paint has already been deemed suitable and requiring it be tested would fall under what Mr. Arkush referred to as “absurd.” The same would go for fabric, which as I understand it is already subject to a slew of regulations. Where we differ is that I don’t believe that the law will actually touch any of those circumstances. Sure, its in the scope of the law if interpreted strictly, but like Kevin’s example it creates an absurd, bizarro-world situation where people are put out of business because they can’t pay for some tests, not because what they make is actually dangerous. What ticks me off the most is that I’ve seen several people already shut down their etsy shop because they are convinced this is going to affect them. They think they can’t even sell what stock they have left.

    Question: what would be worse, the cost of testing products for lead, or the cost of lawsuits if ones products did somehow contain lead and resulted in the illness or death of a child?

  14. Denise Mollison
    December 18, 2008

    Question: what would be worse, the cost of testing products for lead, or the cost of lawsuits if ones products did somehow contain lead and resulted in the illness or death of a child?

    ***********************************************************

    That is a very good question, but I would like to stress that as of right now the burden to test for lead in materials are thrust upon those who purchase these supplies. Not on those who manufacture the supplies.

    Supplies include but are not limited to cloth, non-toxic water based paints, organic wool, natural hard woods to name a few.

    As a cloth doll maker, I am using these materials purchased directly from the sewing shops, big chain stores and hobby stores across the country. I should be able be confident that I will not be sued for using these products.

    They should have the necessary certification which states they are indeed safe for use.

    I think the best way to comply is to allow vendor supplied certification.

    We want to prove our products are safe, yet these tests are being pushed onto the wrong people.

    In it’s current form this law will in fact put thousands and thousands of businesses large and small out of business.

  15. karenlepage
    December 19, 2008

    Please vote at Change.org to have this topic addressed by Mr. Obama.

    http://www.change.org/ideas/view/save_handmade_toys_from_the_cpsia

    Karen
    One Girl Circus
    Handmade Garb for Little Sprites

  16. Eric H
    December 19, 2008

    “It looks to me like a deliberate campaign by some large manufacturers who know better”

    More interesting misdirection from Mr. Arkush.

    On the one hand, his group (Public Citizen) is suing to make the phthalate ban retroactive because they think the law should mean what it says; on the other he is telling us not to worry because this surely doesn’t mean what it says.

    Mr. Arkush says, “To take the phthalates example, the law requires only that toys be tested for relevant risks (as opposed to an absurd requirement that every toy be tested for every risk). If there is no risk of phthalates in a wooden toy, the toy will not need to be tested for phthalates.”

    Now, when I search the law, I only find the word “relevant” in there twice, neither time in the context he is using it. So this is Mr. Arkush’s interpretation of the law, and we have already seen that his interpretation tends to be one-sided and heavy-handed when it is convenient to his position (retroactivity is a-okay with him). In fact, the law requires you the manufacturer to issue General Conformity Certification (a GCC) that certifies that the product conforms to the relevant standards.

    It says, “every manufacturer of a product which is subject to a consumer product safety rule under this Act or similar rule, ban, standard, or regulation under any other Act enforced by the Commission and which is imported for consumption or warehousing or distributed in commerce
    (and the private labeler of such product if such product bears a private label) shall issue a certificate which—
    ‘‘(A) shall certify, based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product under this Act or any other Act enforced by the Commission; and
    ‘‘(B) shall specify each such rule, ban, standard, or regulation applicable to the product.’’.

    This requirement started 90 days after the law was signed, i.e. in November. So how do phthalates become an issue?

    “Beginning on the date that is 180 days after the date of enactment of this Act, it shall be unlawful for
    any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States any children’s toy or child care article that contains concentrations of more than 0.1 percent of di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate
    (DBP), or benzyl butyl phthalate (BBP).”

    So, you MUST issue a GCC “based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product under this Act” , and beginning 10 Feb, if you are making a children’s toy, that GCC MUST cover phthalates. Mr. Arkush and his activist associates have been talking only about the “dangerous toxins” and have not even considered the testing or GCC requirements.

    Mr. Arkush is also on record saying that the CPSC is not a bunch of jack-booted thugs who are going to throw people into prison, but it isn’t clear what he means by that. He seems to be implying either that there aren’t any criminal penalties, or they aren’t going to enforce them, or there is going to be a lot of winking going on. The CPSIA drastically ramps up the potential fines and prison sentences for violating this and other relevant laws, and you can bet that groups like Public Citizen will want the book thrown at every violator. Furthermore, since you can’t sell something made by another manufacturer that is non-compliant, online sales places like Etsy and E-bay are going to assure compliance and effectively make you choose between compliance and withdrawal from the market. Large manufacturers can’t ignore the requirements because of their creditors and — in the case of public companies — Sarbanes-Oxley.

    He is wrong, and you should un-amend your original post.

  17. grecowoodcrafting
    December 19, 2008

    Eric H- Per a conversation just this morning directly with the CPSC Office of Compliance, I do not need to test for phthalates if I know there is no plastic in the toy. You can see more of this conversation in my entry “Directly From the Source”

  18. Eric H
    December 19, 2008

    That’s great; we can cross off 0.00001% of the goods potentially impacted by this legislation.

    By the way, did you get it in writing? Or can you provide the link? You said you were directed to it, but I can’t find it if you linked to it.

  19. grecowoodcrafting
    December 19, 2008

    It is in an email I received.

  20. Nevicata
    December 19, 2008

    Mr. Arkush: Are you willing to shoulder the fines and the jail time for anyone convicted by a court that doesn’t share your interpretation of this law?

  21. Nevicata
    December 19, 2008

    Furthermore, Mr. Arkush: if common sense is the standard we’re using here, why not repeal all the product safety laws and regulations already in existence, and replace them with a Common Sense statement on product packaging?

    It could go something like this:
    “This product was designed and produced with common sense.
    It is intended to be used with common sense.
    It has not been certified by the United States Government as being free of all substances other than cotton candy (sugarless) and unicorn breath; however, we the producers believe this item to be generally safe. We would use this item ourselves and/or allow our children to use it.
    We do not guarantee, promise, or imply that nothing bad will ever happen within 100 yards of this product.
    On the contrary, if your child takes it to pieces and eats it, he will probably get sick. If he bashes another child over the head with this product, someone will bleed. If Daddy steps on it in the dark, he is likely to curse.
    Therefore, if you are shopping for a product that cannot possibly cause any harm to anyone or anything no matter how the product is used, abused, or employed, please return this to its shelf and continue your search elsewhere.
    If on the other hand you have the sense God gave broccoli, we thank you for your purchase and hope you enjoy it. Thank you.”

    That would solve all our problems, wouldn’t it? Except of course for the lead-containing toys from China, about which something could be done: such as, passing a law that requires testing of toys (‘relevant risks’) from China.

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  23. LINDA
    January 15, 2009

    Get the government off the backs of native americans and other crafts people who sell clothes and toys

    Lead is more likely from china..let’s boycott China goods if the US is doing this to us!!!!
    http://WWW.ENCHANTED-MERMAID.COM

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