Today, the CPSC voted unanimously to to issue a one year stay of enforcement for certain testing and certification requirements for manufacturers and importers of regulated products, including products intended for children 12 years old and younger. This does not mean that they have relaxed the lead standards or repealed the law. If a product is found to contain lead in excess of the standards set by the Act, the CPSC will prosecute to the fullest extent of the law. But for artisans, manufacturers, authors, small businesses, and libraries who already know that their children's products are safe, it's a welcome reprieve. Provided there's no lead or phthalates in excess of the limits set by the CPSIA, failure to obtain the prescribed third-party testing and certification will not be punished.
In CPSC Acting Chairman Nancy Nord's statement regarding the vote, she writes,
The stay of enforcement of the testing and certification provisions will give some temporary and limited relief to small manufacturers, home-based businesses and crafters who cannot comply with the law without incurring substantial testing costs. However, the stay does not relieve them of complying with the underlying requirements enacted by Congress and which go into effect on February 10, 2009, dealing with lead, phthalates and a number of other toy standards. Any changes to these requirements will need to be addressed by Congress.
The stay of enforcement does not provide relief for the charities, thrift shops, resellers and small retailers who are impacted especially hard by the retroactive effect of the lead ban to existing inventory. While these groups do not have a legal requirement to test their inventory, they must meet all standards enacted by Congress. Thrift shops, charities and other sellers will have to decide whether they will continue to sell children’s clothing and other products that have not been tested, even though no one has suggested that they are unsafe. The retroactive nature of the lead ban has caused much of the concern that has been voiced over this law but Congress will need to address that issue; the CPSC cannot.
It is important to note that the stay of enforcement does not apply to the following:
- Four requirements for third-party testing and certification of certain children's products subject to:
- The ban on lead in paint and other surface coatings effective for products made after December 21, 2008;
- The standards for full-size and non full-size cribs and pacifiers effective for products made after January 20, 2009;
- The ban on small parts effective for products made after February 15, 2009; and
- The limits on lead content of metal components of children's jewelry effective for products made after March 23, 2009.
- Certification requirements applicable to ATV�s manufactured after April 13, 2009.
- Pre-CPSIA testing and certification requirements, including for: automatic residential garage door openers, bike helmets, candles with metal core wicks, lawnmowers, lighters, mattresses, and swimming pool slides; and
- Pool drain cover requirements of the Virginia Graeme Baker Pool & Spa Safety Act.
Are books included in the products receiving a stay of enforcement? Yes. Cheryl Falvey's December 23rd response to Allan Adler states:
...with regard to those books that are intended or designed primarily for children 12 years of age or younger, ordinary books are not subject to the ban on lead-in-paint. As has always been the case, printing ink is not considered a surface coating under the lead-in-paint ban (16 C.F.R. Part 1303) because ink by its nature soaks into paper or cardboard and becomes part of the substrate. However, 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.
Thus, ordinary books and most other products for children aged 12 and under do not fall under any of the categories that are specifically excluded from the stay of enforcement - meaning that they are included in it.
For handcrafters and clothiers, it's important to know the lead content of the zippers, buttons, and other components of the items they make or sell. Now is the time to demand the use of safe materials from suppliers.
Commissioner Thomas H. Moore wrote:
From the outpouring of letters, emails and phone calls to the agency, it is clear that many smaller manufacturers did not know that there were any federal standards that applied to their products, had no idea how to have their products tested and may never have heard of the CPSC, or if they had, did not think this agency had any relevance to their business. Their reaction made a number of things clear:
- That the new electronic media channels, particularly the blogs, are tremendously useful tools for disseminating important information to small businesses, but that they can also be a channel for spreading confusing misinformation,
- That the Commission has not done enough to make the home crafters and other smaller businesses aware of their pre-existing obligations under the law,
- That the new law (CPSIA) has done what the Commission had not been able to do, get the attention of many, many of these smaller manufacturers with respect to their responsibility to assure the safety of their products, and
- That the vast majority of these smaller businesses, while they may not know the specific rules that apply to their products, are likely making safe products, or they would have come to our attention.
First, let me just say thank you to Nancy Nord and Thomas H. Moore. Well done.
Second, if "the new electronic media channels, particularly the blogs" are "a channel for spreading confusing misinformation," then part of the blame rests with poor communication from Congress and the CPSC over a year ago, and with the ambiguous "clarifications" posted by the CPSC in response to early expressions of concern. Had they been as clear as today's statements by Chairman Nancy Nord and Commissioner Thomas H. Moore, it is possible that there would have been less fear and speculation among the general public, most of whom do not hold degrees in law but found themselves caught directly in the path of a law that was swiftly bearing down on them with the threat of bankrupting their businesses within weeks.
Third, home crafters and other smaller businesses were prepared to err on the side of caution; despite the utter lack of common sense apparent in the CPSIA, they were prepared to stop manufacturing and selling - libraries were preparing to remove books from their shelves or shut their doors to children under 12! - in their shocked and horrified willingness to be law-abiding citizens even at the cost of their livelihoods during some of the toughest economic times we've faced since the early 1980s. Let's not be too eager to push through new laws in the name of "children's safety" before considering all of the ramifications of those laws, including their negative impact on the very children they purport to protect.
Fourth, Mr. Moore, don't break your arm patting yourselves on the back - smaller manufacturers should never have learned about the CPSIA so late in the game. Many of them didn't hear about it or have an opportunity to comment prior to its passage into law. That is largely the fault of Congress and the CPSC. But now that you know what an effective method of communication "the new electronic media channels, particularly the blogs" can be, we expect to hear more from you - and to be more involved in the legislative process.
Finally, you're correct in stating that "the vast majority of these smaller businesses, while they may not know the specific rules that apply to their products, are likely making safe products, or they would have come to our attention." So many of these "smaller businesses" began in response to the spate of unsafe toys and recalls issued by the CPSC. Their goal was to design, produce, and sell safer products for children. So to expect them to bear the brunt of consequences that are largely the result of large companies' greed or negligence is unjust. Today's stay of enforcement is an important step towards restoring our faith and trust in the process, but I suspect many of us will be keeping a closer eye on what government is doing to us in our names.