Congress wrote a bad law (good intentions, poor execution) and the chances of them backing down on it are slim to none. They are not generally known for saying, "Whoops. That was a bad idea." Kathleen Fasanella wrote a good post on why a small business exemption isn't going to happen and why it shouldn't happen. (You can catch up on the CPSIA hoopla here, in case you missed it.)
So yesterday morning I was thinking about what I would do if I sold children's products. I wouldn't want to break the law, but I wouldn't be willing to just walk away from the the hard work I had put into my business either. (Again, this is not advice-- just random thoughts-- I have no license to practice law--- this does not constitute legal advice-- yada, yada yada.) Most businesses don't have the cash to survive until the law is clarified, so the owners have to come up with a way to work around the law as it currently stands.
If it were me, here are ideas I would investigate:
1. If my products were at all applicable to the public in general, not just children under 12, I would put warnings on my website and items that the "item is not intended for children under 12". If a parent buys a hairbow and chooses to put that on their child, I can't stop them. But a 15-year-old can also wear a hairbow. I would remove any pictures of children from my tags and website and just show pictures of the hairbows alone or on older models. For children's clothing- this idea probably wouldn't hold water because a 24-month size definitely implies "for children".
2. I would watch the CPSA's definition of "used" products. Currently, I do not see where they have defined it. And they have exempted resellers of "used products" if they have a "level of confidence" that they do not contain lead. Apparently, they can still be held liable if they sell something that contains lead, but they can sell these items without testing. (I know-- it doesn't make sense.) The former spokeswoman for the CPSA, Julie Vallese, said you could obtain a "level of confidence" by looking at an item. (Seriously, she said that here.) This is truly a cluster f@&* exemption as well. But I might figure out how to sell my products as used, not new. Admittedly, this idea creates a very slippery slope.
3. If I sold children's clothing, I would stop doing that. I would now offer a sewing service to my customers. They provide the fabric, you sew the goods. You define "provide" however you feel comfortable. I would invoice them for the fabric separately and put on the invoice "not intended for children under 12 as the item has not been tested for lead as required under CPSA". (Similar to the flammability disclaimers shown on fabric invoices.) I think icing on the cake would be to require that the customer sign a document certifying to YOU that he or she has no knowledge that the fabric contains lead and will be held liable if it does because the item might be used by a child under 12 plus you are being exposed to the hazard through your work. Okay, so that is a bit over the top, but you get my point.
My ideas will not work for someone selling through retailers- only someone who sells their items directly to the consumer via the web or craft fairs. Most retailers (smart ones anyway) aren't going to let you expose them to any liability. But it might buy some time until the law is clarified and compliance to the letter of the law is logistically and economically feasible.
(And let me add before I'm accused of feeding babies lead-- I agree lead is dangerous. Just most of the items that have been swept under this CPSIA umbrella have never contained lead and/or have never been the source of lead poisoning. So no lead pacifiers, please.)