I'll try to keep this short and to the point, because this is a topic that could fill a book. But it is a topic of great interest and concern to anyone making and selling products for children. Last August, Congress passed the new Consumer Product Safety Improvement Act (CPSIA), to stem the problem with lead in children's toys that we heard so much about in the last couple of years. Great idea. The problem is the law is complex, not yet well defined and is still in flux. And as of February 10 of 2009, it is enforceable and any product that does not comply with this law-still-in-flux is immediately deemed hazardous and must be removed from sale and destroyed.
In its most basic interpretation, the CPSIA requires, among other things, that any product designed for children under 12 must meet the new lead limit of "600 parts per million total lead content by weight for any part of the product". Currently, the law states that the manufacturer of the finished product must submit their manufacturing batch to a third party laboratory to comply with this new lead limit and provide a certificate to the retailer that they are in compliance with the CPSIA.
So the problem with this scenario becomes, if you are a small handmade manufacturer, your batch may only be ten pieces of the product. And if the third party laboratory tests are $1,000, you've just added $100 per product to your cost. That is one expensive hair bow.
Next problem. Currently, as the law stands, the component manufacturer cannot do the testing for you. So if you make children's clothing and you use a zipper, YOU must submit your batch of jackets for third party testing, regardless if the zipper manufacturer tested it or not. And if you make sweatshirts with the same zippers, the sweatshirts must be tested as they are a separate SKU or finished unit.
And if you read any of the news stories about the new law, you will certainly read about the plight of thrift and resale stores, which would have been required to throw out anything for children under 12 on February 10 or have it tested. (Just as I was writing this post, the CPSC issued a statement on January 8 exempting "Resellers of Children's Products, Thrift and Consignment Stores". The press release states that "sellers of used
children’s products, such as thrift stores and consignment stores, are
not required to certify that those products meet the new lead limits,
phthalates standard or new toy standards." And also, retailers are not required to test children’s products
in inventory for compliance with the lead limit before they are sold, though they are advised to avoid products that might contain lead.)
This law is disheartening at best to small manufacturers of children's items. So, after you sit for an hour with your head in your hands moaning "oh no, oh no", recognize that there is starting to be light at the end of the tunnel. The law (section 101(b)) does allow the CPSC (Consumer Product Safety Commission) to create a list of materials exempt from testing because of its non-adverse effect on public health and safety. On Tuesday (January 6), the commission voted tentatively to exempt "clothing, toys and other goods made of natural materials such as cotton and wood" as well as two other categories of items. A step in the right direction, though the rule will not be finalized before February 10. I might also add they still haven't cleared up the zipper or other component issue on clothing.
So, as a small manufacturer of children's products, what should you do? Here is what I would do (though that sounds like advice, I'm sure legally I should tell you it isn't. For my protection, I am advising you not to interpret anything here as advice, which I repeat, it is not):
1. I wouldn't panic. It won't do any good.
2. I would keep an eye on the law's progression. Things are starting to heat up and clarification and revisions may be forthcoming quickly.
3. If I knew a U.S. Senator or Congressman, I would call them.
4. If I knew of someone who knows of someone who is related to someone who works in a legislator's office, I would call them.
5. If I were attending any of the inauguration festivities, I would talk about it constantly. Perhaps even make a T-shirt.
5. If I had a good-sized manufacturing business (defined as a business with significant assets I didn't want to expose to loss), I would find an attorney that specializes in consumer product safety that can provide guidance and updates as needed. (Which realistically, it would have been prudent to do even before CPSIA.) If I were making a few items at home in my spare time, I probably couldn't spend the money on an attorney, though I would be watching the web (see the links below) for updates. I might also join a manufacturing association or other group that might be providing clarification (and lobbying efforts).
6. I would keep in mind this quote from the LA Times:
"The CPSC is an agency with limited resources and tremendous
responsibility to protect the safety of families," said Scott Wolfson,
a CPSC spokesman. "Our focus will be on those areas we can have the
biggest impact and address the most dangerous products."
This is not a call to ignore the law or safety, but to remember that it is very unlikely that they are going to pursue a small manufacturer on February 11 of this year over hair bows sold on Ebay. Especially one that has, in good faith, made an effort to determine if any components of their products do contain lead. Or by common sense, couldn't contain lead. And in the meantime, I must believe that rational thought will prevail and the law will be clarified to provide for children's safety AND reasonable compliance standards.
To read more about the CPSIA, these links provide more information:
The Consumer Product Safety Commission site has a lot of information on the new law, but it is confusing and overwhelming. It does contain "Advisory Opinions" based on inquiries from manufacturers that you might find helpful if it covers your specific topic.
The actual pdf document of the new law is here. Also overwhelming and confusing, but if you see a reference to a section of this law, you can at least read what that section contains.
Kathleen Fasanella started the National Bankruptcy Day site to act as a forum for more information and ideas of how to express your concerns to your legislator.
The National Association of Manufacturers has submitted a petition to the CPSC's request for comments asking the CPSC "to issue a comprehensive direct final rule" regarding these new requirements. It's a lengthy document, but well written and will actually help you understand the law better.
The Handmade Toy Alliance is also providing links and information on their website about the new law and its effects.
Kevin Burke, the CEO of the American Apparel and Footwear Association wrote a good article in Apparel mag online. The association also set up a website to make it easy to email your Congressperson here.
So, as disheartened as you may feel about your children's products business, remember you are not alone and there are businesses that are even more concerned than you. Certainly participate in the lobbying efforts mentioned on the above sites. But also be patient-- I truly do believe that clarifications will be coming out quickly between now and February 10.
