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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