Tuesday, January 13, 2009

CPSIA: More Weasel Words Render "Clarification" Murky

The response from Cheryl Falvey to Allan Adler's letter to the CPSC would appear to let "ordinary books" off the hook with regard to the testing and certification requirements of the Consumer Product Safety Improvement Act of 2008. Falvey defines "ordinary books" as those books that are "published on cardboard or paper printed by conventional publishing methods and intended to be read." She specifically excludes from this definition "a book that has inherent play value, e.g., a vinyl book intended for use in the bathtub."

"First, the CPSIA lead limits of section 101 do not apply to ordinary books intended for readers of all ages, including children. By definition those books are not intended or designed primarily for children. Therefore, those books do not need a general conformity certification for lead content and do not require third-party testing of any kind."

That certainly seems to be a clear and unambiguous statement that should give authors, publishers, printers, and booksellers cause to cheer, but Falvey goes on to state, "a book intended or designed primarily for children would need to meet the new lead content limit of 600 ppm and subsequently 300 ppm established by the CPSIA. Printing ink becomes part of the substrate of the book for purposes of evaluating its lead content. . . .

While the Commission staff has been diligently searching for such data from publicly available sources, it does not at this time have sufficient data on the total lead content of those materials to issue an exemption. Moreover, the staff has raised concerns about issuing exemptions on a commodity or class of materials basis without some data that the test results are representative of such materials as a class based on technical specification or other defined, objective criteria. . . .

The testing requirements for lead content apply to finished goods and not component materials."

RR Donnelley, a leading full-service provider of print and related services around the globe, has established a portal site at www.rrd.com/cpsia that provides evidence from extensive testing showing that the total amount of lead contained in books, generally, would be "none" or less than the most stringent lead limits imposed by the Act. That includes books printed in China.

The CPSIA requires testing for "total lead content" - which is what it would appear that RR Donnelly's site provides on the page entitled, "Finished Book." I am no expert on the various methods used for testing for lead content or phthalates, but it seems to me that if you use something called "acid digestion method" and "argon plasma spectrometry" on the sum total of materials used in the book's production, and you come up with numbers like "less than 10 ppm," that leaves a really safe margin of error, regardless of whether you test the finished goods or the component parts, even with the most stringent of standards (less than 90 ppm after August 2009). If that assumption is incorrect, I hope that someone with expertise in this area of science can explain it, below, in terms that we can all understand. Otherwise, it looks like Cheryl Falvey is trying to assert that two plus two might somehow equal 600.

Then again, a glimmer of hope: On page 3 of the memorandum, Falvey writes, "…ordinary books intended or designed primarily for children 12 or younger are reading materials and not toys and, therefore, the phthalates provisions of the CPSIA do not apply to them."

On the other hand, Falvey states that the permanent ban covers children's toys and child care articles - and according to the Act - Sec. 108(a) and Sec. 108(b)(1) - that's what the interim ban covers. Unless I am reading Sec. 108(b)(3)(B) incorrectly - the permanent ban on phthalates applies to children's toys, child care articles, and "any children's product containing any phthalates…as the Commission determines necessary to protect the health of children."

I'm confused - and a little irked. Contrary to popular belief, using clear and unambiguous language in legal writing - as opposed to obfuscatory "legalese" and weasel words - is a good thing. What we have in the latest Falvey memorandum is weasel words. The CPSC could point to this one document and say accurately that "ordinary books for readers of all ages" are exempt from the requirements of the CPSIA, but that those same books, if "intended primarily for children" are not. The same books. Regardless of who's actually reading them. And who determines intent?

Is a picture book for young readers intended for young readers, or is it intended to be read to them by their parents? Never mind what actually happens in the kid's room. Clearly, War and Peace is safe from the CPSIA's testing and certification requirements. But what about Goodnight, Moon? What about…the Harry Potter series? (Perhaps Falvey is a fan of Harry Potter, and so left a loophole there for books with a far broader appeal than the author could have hoped for when writing them.) In any case, this latest "clarification" from the CPSC is just clear as mud, when you pick it apart and analyze it.

The only thing clear at this point is that many individuals and small businesses that are centered around making quality products for children are playing it safe: holding deep-discount "CPSIA sales," laying off employees, destroying their inventories of children's merchandise, closing their doors, and in some cases, declaring bankruptcy. The damage has already begun, and February 10 - National Bankruptcy Day - is less than a month away. How is it that this law is only now making headlines, at the eleventh hour? This is, indeed, cultural genocide - and not just against Native Americans. With each passing hour and day, any hope of a clear, unambiguous stay of execution from the CPSC fades away.

 

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13 comments:

  1. Thanks! Look, I'm not opposed to us banning export of anything containing lead - but I don't recall the recall of any lead-containing products manufactured here, because we've had anti-lead standards in place for years.

    We need to protect kids from unscrupulous businesses - and the sheer number or recalls of products imported into the U.S. in recent years indicates to me that someone (overseas suppliers, manufacturers, and/or importers) may be dealing in bad faith with the buying public.

    But the businesses MOST hurt by the CPSIA are the ones that were largely started to PROTECT kids from these mass-marketed children's products. It's not that we're protesting limits on LEAD - just the costly testing and certification requirements imposed by the law.

    Hell's bells...did we require this on SPINACH after the recent E. Coli outbreak? Do we ban certain models of cars because some people get drunk and drive them? Do we outfit ALL cars with Breathalyzers (now, admittedly, maybe we should) that will disable the ignition switch if the driver's over the limit? (Or we shouldn't, because a clever drunk will just find a friend to blow into it for him.)

    I think it'd be kind of funny if manufacturers just said "Screw it," and stopped making kids' clothes, baby bottles, blankets, car seats, toys, etc.

    Oh, wait... I was going to say "Maybe then, they'll be stuck indoors - naked - with nothing to turn to but books and maybe they'll read more." Whoops. Man, just what we need - more idle, illiterate teens.

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  2. Ah, Holly, I knew you'd put that "clarification" letter from Cheryl Falvey to good use.

    I can't believe how anyone can contradict herself so successfully as she managed with her "weasel words."

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  3. Seems to me that children should be supervised anyway. Books are not eating material.

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  4. We definitely need Holly as our spokesperson to fight the lawmakers. I don't know what lawmakers are using for brains when creating things like a 62-page law that says they want to limite the lead and phthalate levels. Or maybe that's it, they don't have any brains to use. I hope the public is making as big a deal as they can about this, especially since lead based paints were banned by the same group 30 years ago - doh! And now we need to reban it. Aiyiyiyi. Someone shoot them there lawmakers with a dose smartness, not smartassesdness.

    Keep up the good work Holly. E :)

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  5. You are good! Geesh...If I only could put it into words the way you! :)

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  6. Damn, my head hurts.

    Tell me, for the majority of kid's books printed in the USA, is lead even used in the process?

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  7. hi holly, sent you an email about making your js-kit settings expand the "leave a comment" box to get commentluv to play nicer

    Recent blog post: The monkeys are off my back (for now)

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  8. From test results I've seen, Rena, no - or if lead exists (in certain inks or other component parts), the sum total should still be less than the absolute minimum standard that goes into effect later. It ranges from "not detectable" to "< 100ppm" - total.

    I'd let my kids eat--er, read--any book. Handle it, fondle it, sleep with it, chew on the cover - so long as they grow up to be avid readers, it's worth the risk, in my opinion. I trust that bookstores and libraries are wise enough to hang onto their inventory while this is sorted out - if books are destroyed over this, I say we truly work to dismantle the CPSC and impeach Congress. I was sure they meant well, until I started reading the "clarifications." I'm beginning to think of less charitable interpretations of their motives. Urge stronger protections for kids as a result of all the lead-tainted imports from China requiring recall - get punished for it.

    Recent blog post: CPSIA: More Weasel Words Render "Clarification" Murky

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  9. Andy, it seems to be working well now! I was afraid you'd given up and deserted me - I should've known better. You're a dear. I wish everyone were so diligent in support of their customers (even their non-paying ones - amazing).


    Recent blog post: CPSIA: More Weasel Words Render "Clarification" Murky

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  10. I was accused the other day of being a lobbyist for...I forget who. I think it was meant as an insult, but my first reaction was to smile, then to laugh, then to wonder if it paid well - because if I had a dime for every time something triggered my righteous indignation and drove me to write, I'd be able to retire while I'm still young enough to travel and enjoy it!

    Recent blog post: Open Letter to Artisans and Authors Regarding CPSIA

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  11. Thank you, Mark! This is why I write. Because I really suck at math. :)

    Recent blog post: Open Letter to Artisans and Authors Regarding CPSIA

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  12. you have no idea how much work I have put into troubleshooting the blogger plugin! it's been a bane of my life for the past few weeks!

    at least now, I can get on with some personal geeky stuff! thanks (I think) for kicking me up the arse repeatedly to get it working :-)

    Recent blog post: The monkeys are off my back (for now)

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  13. Now, if only Congress and the CPSC would respond to a good, virtual arse-kicking like you do, Andy, the world would be a sunny, happy place!

    I do have an idea of the work you've put into this, and I kind of had a feeling it would bug you till you'd solved the mystery (you couldn't let your Blogger CommentLuv flagship blog flounder, could you??) - so I let up a little on the arse-kicking. Because to keep going under those circumstances would be to stoop to "nagging," and contrary to my kids' fondly held beliefs, I don't enjoy being a nag.

    Thanks again!

    Recent blog post: Open Letter to Artisans and Authors Regarding CPSIA

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