Wednesday, August 5, 2009

CPSIA - Op-Ed in Louisville Courier-Journal

The following Op-Ed written by Jennifer Upton, the owner of a seasonal children's consignment sale, was published in today's Louisville Courier Journal:

Louisville Courier Journal
August 5, 2009

Small business looks to Northup

By Jennifer Upton
Special to The Courier-Journal

When the Senate approves Anne Northup as the newest commissioner of the Consumer Product Safety Commission (CPSC) following her confirmation hearing today, the former member of Congress will discover that her new job has been made quite difficult by her former colleagues. Under the Consumer Product Safety Improvement Act (the CPSIA) passed in August 2008, the CPSC is no longer permitted to decide whether a product is safe based on common sense or even consider the potential risk to a consumer.

Kentucky businesses that serve the market for children's goods, along with thousands of other small businesses across the country, have learned the hard way that our nation's new product safety law — the CPSIA — is teeming with over-reaching provisions creating a host of unintended consequences for honest businesses struggling to comply with the law.

Passed by Congress following the high profile lead-in-paint toy recalls, the law's problems stem from Congress' overly broad definition of children's products that swept in products well beyond toys such as books, pens, bicycles and clothing.

For consignment and resale businesses like mine, the fact that Congress and the CPSC decided to apply the law retroactively made products that were considered perfectly safe one day into banned hazardous substances the next. This makes no sense to me — or to my customers. It is not that these products are in any way unsafe, but that the costs of reconfirming their safety are so prohibitive.

The new product safety law has narrowed the selection of goods we can prudently offer our customers at a time when consignment businesses offer an important lifeline to needy families during a deep recession. Because of the lack of clear guidance and the prospect of criminal and civil penalties for any legal misstep, my sale has stopped selling books printed before 1985 (per the guidance from the CPSC), children's jewelry, and many toy and clothing items.

New CPSC Chairman Inez Moore Tenenbaum pledged to take a “common-sense” approach to addressing the countless problems with the CPSIA. Yet just last week, Chairman Tenenbaum learned how slippery “common sense” gets around the CPSIA. In her first vote, she denied a petition to exclude rhinestones, crystal and glass beads from the lead restrictions even though the CPSC professional staff admits these stones pose no real risk of injury from their presence in children's products like jeans, footwear or jewelry. Ms. Tenenbaum acknowledged that the CPSIA forbids Commissioners from using risk assessment when considering how to implement the law.

Imagine my frustration as a small business owner. We face a situation in which Congress effectively makes it risky for us to continue to serve our market while large corporations who can afford the cost of testing benefit from all the “little guys” going bankrupt. As a mother of two, I agree that all items with which our children come in contact should be safe. However, this law apparently cannot distinguish between products that pose a danger and those that do not. What kind of “safety” law outlaws consideration of risk?

Product safety is not achieved by denying access to safe products to those in need. If Ms. Northup is confirmed, let us ask her and the other commissioners to persuade her former colleagues in Congress to restore the agency's ability to make sensible decisions based on which products truly pose dangers to consumers.

Jennifer Upton is the owner of Kentucky Kids Consignment Sales,, a seasonal children's consignment event located in Elizabethtown and Louisville.

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