Thursday, January 15, 2009

Dangerous Books!!! Killer Kids' Clothes!!!

Today's highlights and thoughts on the CPSIA.

Libraries: Ban Kids - Don't Burn Books!

Libraries also are concerned about the Act, and American Library Association leadership has been quoted in press interviews predicting that libraries could have to destroy existing holdings or keep children away from the books. According to Library Journal, the ALA sent a letter to Congress last week asking for an exemption for libraries; later executive director Amy Sheketoff posted a note on the organization’s District Dispatch that counseled libraries not to take any action until the uncertainty is sorted out.

Pasted from <http://www.publishersweekly.com/index.asp?layout=talkBackCommentsFull&articleid=CA6629950&talk_back_header_id=6580119>

I hope that libraries would sooner shut their doors, temporarily, to children under age 13 than to destroy or warehouse any part of their collections. While an immediate repeal or resolution to the problem of the CPSIA may not come in time to save the cottage industry of handmade toys and clothes, and many small publishers will not hang in there long enough to see it through, I am confident that our lawmakers will soon see how ridiculous it is to include ordinary books - even those intended specifically for children under age 13 - in the scope of the CPSIA.

I suppose handheld, electronic book readers will gain a windfall from the demise of children's books. It would be tempting, but unfair, I suppose, to say something like "Amazon Kindles the flame that ultimately burns books" - many of us would not have heard of the CPSIA were it not for Amazon's notice that they would stop carrying our titles unless our publishers provided proof of CPSIA compliance (hard to do, when the CPSC still hasn't defined acceptable testing and certification methods) by January 15.

Boy Scouts of America (BSA) and Girl Scouts of America (GSA)

I wonder if the Boy Scouts and Girl Scouts were blindsided by this, too. I suspect they were, and I suspect that they are scrambling to figure out what to do.

[The CPSIA] will impact all the ordering of gear, patches and so on for NOAC 2009, for the 45,000+ attendees of the 100th Anniversary National Scout Jamboree at Camp A.P. Hill in Virginia, and every summer camp’s trading post for the 2009 season (and so on). That’s a lot of stuff.

. . .

The gear, patches and clothing currently in inventory is what will cause the most interest by BSA National because 300+ council offices have lots of stuff in inventory in their stores and summer camp trading posts.

All of it has to be certified or tested, or it must be removed from sale on Feb 10th. Or someone has to find an exemption. Right now, there are no exemptions.

This law was written primarily to deal with large multi-national firms importing containers of lead-tainted junk toys, so the fines are substantial.

Pasted from <http://www.rescuemarketing.com/blog/2009/01/06/pinewood-derby/>

Actual Recalls by CPSC Since August, 2007

12/30/08

Faulty Instructions Prompt Recall of Electrical Wiring How-to-Books by The Taunton Press; shock Hazard to Consumers (http://www.cpsc.gov/cpscpub/prerel/prhtml09/09078.html)

7/10/08

Children's Necklaces with Ballet Shoes Charms; solder on the charm of the necklace may contain high levels of lead, which if ingested by young children can cause adverse health effects.

4/8/08

Children's Board Book Sets Recalled By Dalmatian Press Due to Choking Hazard

2/6/08

eeBoo Sketchbooks; paint on wire binding contains lead

10/7/2007

Journals from Antioch Publishing; paint on the spiral metal bindings of the journals contains lead

8/23/2007

Priddy "Trucks" Shaker Teether Books; small pieces of the teether can break off, posing a choking hazard to young children.

Going back as far as 2002, using a search for "book," the preponderance of recalls were due to cutesy, detachable playthings or embellishments on books that might cause a choking hazard to small children. The only lead recalls were the ones shown here; one was due to a necklace sold with a book, and the others were strictly due to paint coatings on wire bindings.

Of the children's clothing that was recalled, most of it was due to choking or strangulation hazards. Drawstrings on children's clothes should be banned! But then, so should snaps and buttons. These things could actually kill a kid.

Then again, so could tripping over the pants that just fell down around their ankles. Maybe it would be better to say, "Parents, supervise your children when they are wearing clothes. Teach your kids to use drawstrings responsibly, and not to pull things off their clothes and stick them into their mouths."

God knows, we all needed a good laugh.

Julie Vallese (former spokeswoman for the CPSC) opened herself to the disdain and fury of the blogging community when she said, condescendingly, "There is a lot of misinformation being floated out by the media, by the mommy blogs, by others blogging on legislation that they're just not understanding…it needs to be clear, and it needs to be concise in terms of their requirements under the law." As if the CPSC's own clarifications were clear or concise in terms of anyone's requirements under the law.

I’ll sleep better, now. But you might want to rethink your condescending remarks about "the media, the mommy-bloggers…"

"Resellers need to have a certain level of confidence," said Vallese, "that they are meeting the law," which is exactly the point - when you're told, on the one hand, that there is no requirement to test used merchandise, but that you are going to be held liable for compliance, nonetheless - that you just have to have a "level of confidence" that your products meet the requirements (which are "not defined in the legislation") it doesn't exactly give you a "level of confidence," does it?

If resellers do choose to test their merchandise, Vallese informs us that lead swab tests aren't good enough for the CPSC. XRF technology might be used as a rough screening tool, but it's not definitive.

Thanks, Ms. Vallese, for clarifying the obfuscation, or further obfuscating the clarification, or telling us what the CPSIA means, by way of what it doesn’t.

 

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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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Sunday, January 11, 2009

New Hope?

The CPSC FAQ on the CPSIA confirms that the CPSIA applies to books. It seems more reasonable to assume that the intent of Congress was to ensure that the toys and small component parts bundled with books such as the Klutz books were included. After all, they might be ingested by small children. I hate to think what this means for classic children's books like Pat the Bunny.

Unfortunately, I can't argue that small children aren't going to eat books. My mother used to put books in my crib so I'd grow up seeing books as familiar, comforting items. I'm sure I've chewed my share of books. I put books in my kids' cribs, of course - and I'm sure they chewed their share, too. Furthermore, I was reading adult books well before the age of 13, so I'm not sure the intent of the publisher should matter; in a household full of bookshelves groaning under the weight of books, kids will be exposed to whatever materials are contained therein - including potentially dangerous ideas about limiting government interference.

Older and wiser, we no longer put books into our mouths - we just feed our brains on them. I think that it's more important to devour the ideas in books than to worry about any miniscule amount of lead that could possibly be found in the materials used to make them. In fact, 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.

There is hope - if logic and reason still prevail. Allan Adler, Vice President for Legal & Government Affairs with the Association of American Publishers, wrote to Cheryl Falvey on December 4, 2009, to "formally request the Office of General Counsel to immediately issue an advisory opinion letter to confirm the limited coverage of books and other non-book, paper-based printed materials under the lead, phthalate and applicable ASTM standards requirements referenced in the Consumer Product Safety Improvement Act of 2008 (“CPSIA”)."

And there is this tantalizing hint that some relief may be forthcoming: "Children’s Books and the CPSIA – STANDBY - Situation 'Fluid'" from the ALA District Dispatch at http://www.wo.ala.org/districtdispatch/?p=1349 - but "standby" doesn't offer the definite comfort that a clear advisory opinion letter from Falvey would. Let's hope that tomorrow brings good news.

Again, I would urge solidarity between authors and publishers, artisans and clothiers - we are stronger together, and it would be wrong to take a partial victory and run with it, abandoning those whose issues with this law have not yet been resolved. Many of us are parents: It was for our children, ostensibly, that this law was enacted - ironically, it is for our children and our families that I believe we need to urge repeal of the CPSIA or a clear exemption for books and handmade toys, clothes, and accessories.

What about libraries and schools? Clearly, the law will affect new acquisitions of books and textbooks. But what about their existing collections? The "Falvey Memorandum" dated November 18, 2008, states that CPSIA is retroactive, which some have taken to mean destroying books or prohibiting children from accessing the library. While there seems to be some relief for thrift shops and resellers, it is unclear that this would help libraries and schools. A "clarification" issued by the CPSC indicated that the testing and certification requirements of the CPSIA did not apply to thrift stores and resellers of used children's goods. It did not, in fact, let these businesses off the hook; they are still liable for the lead and phthalate content of the products they sell - whether they do so knowingly or unknowingly, and regardless of whether anyone is harmed by a product found to contain lead or phthalates. That is still bound to have a chilling effect and lead to fewer children's products being available in these stores - and more of them ending up in landfills. With penalties ranging up to five years in jail and $100,000, who can blame them?

Stuffed animals may or may not require certification; according to the CPSC FAQ, "Most stuffed animals would be considered to be children's products and presumably toys. A manufacturer would need to determine whether the design of the stuffed animals is such that it is subject to the lead paint limits, the lead content limits or the phthalate limits." If one labeled books, "Collector's Item: Not Intended for Sale to or Use by Children," would it be possible to get around the testing and certification requirements of the CPSIA? I have some stuffed animals that were over $100 twenty years ago. They could be considered "works of art," and they are larger and heavier than an infant or a small toddler. But my kids have always loved to lounge on them and play with them - and I haven't stopped them.

Whether or not the CPSIA decides to exempt certain products from the testing and certification requirements of the Act, some manufacturers and distributors are taking no chances. There is anecdotal evidence that "one of the leading U.S. suppliers of science educational materials has suspended sales of all light bulbs (principally microscope light bulbs) owing to the little dot of solder found on the bottom." It's quite likely that these bulbs contain no lead solder in the first place (there have been lead-free alternatives on the market since at least 2006), but assuming there were no comparable, lead-free light bulbs available on the market, these products should be exempt from the new requirements. According to the CPSC FAQ: "16 C.F.R. § 1500.85 provides that certain articles that are intended for children for educational purposes are exempt for classification as a banned hazardous substance under the FHSA and the lead limits under CPSIA if the functional purpose of the particular educational item requires inclusion of the hazardous substance, and it bears labeling giving adequate directions and warnings for safe use, and is intended for use by children who have attained sufficient maturity, and may reasonably be expected, to read and heed such directions and warnings. For example, an electronics kit or robotics kit would be considered educational and the inclusion of a lead-containing component would not subject the kit to the lead testing requirements because the use of lead in some components is required to make the electronic device. Similarly, the materials used for examination or experimentation for science study such as soil, rocks, chemicals, dissections, etc. would also be exempt." Let's get real for a second: How often do kids under 13 change the light bulbs on microscopes? Isn't it usually a teacher or a parent that handles that minor bit of microscope maintenance?

What about telescopes? According to Richard Woldenberg, Chairman of Learning Resources, Inc., "The cost of the testing [ONE telescope product under the CPSIA] is a mere $24,050 for this single item. The average annual sales of this item are approximately $32,000 over the past two years. Needless to say, we cannot afford to spend $24,050 to test this (or any) item. I presume that Congress intended this result and wants us to stop selling telescopes to keep everyone safe. I guess kids can see the planets by squinting from now on." It may seem ridiculous and alarmist, but there is no obvious exemption for telescopes.

Such knee-jerk reactions in the face of the CSPIA, which is, in itself, a knee-jerk reaction to the flood of lead tainted children's products in recent years, serve to highlight the (presumably) unintended and ludicrous consequences of the Act. However, they also serve as fuel for those who would make light of our concerns and dismiss them as "alarmist" or "hyperbolic" or "misinformed." That this law takes effect on February 10, 2009, is cause for alarm - possibly even a small panic. It is not cause to jump off a bridge or start a bonfire of classic children's literature.

Here's hoping for good news - and a happy Monday!

 

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How Does the CPSIA Affect You or Your Family?

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