CPSIA - Rob Wilson's Op-Ed in PSL on Resale Guidance

October 9, 2009

Consumer Confusion Comes From CPSC Guidance, Not the Media

By Rob Wilson

Product Safety Forum recently published an article by Consumer Product Safety Commission (CPSC) Chairman Inez Tenenbaum intended to reassure thrift stores and families holding garage sales that the CPSC will not punish them with million dollar fines for sales of recalled items in violation of the Consumer Product Safety Improvement Act (CPSIA). Those of us who manufacture children's products support the CPSC's effort to rid the market of recalled products, but Ms. Tenenbaum's essay vividly illustrates her misunderstanding of the fears generated by the new product safety law.

Why are families and resale shops pulling children's products from their stores and garages? It's not for fear of selling recalled products; after all, it's relatively easy to go on the CPSC website and learn which items have been recalled.

It's not the media causing confusion and panic in the marketplace, as Ms. Tenenbaum asserts in her article. In fact, the fears were caused by the CPSC itself, originating in its recently published guidebook, CPSC Handbook for Resale Stores and Product Resellers.

The handbook explains that the new law not only prohibits the sale of recalled products at yard sales or by thrift shops, but also any product that doesn't meet the CPSIA's strict new lead standard, contains any one of six prohibited phthalates (found in plastic), or violates any other CPSC standard, ban, rule, or regulation. The possibilities for violating the law seem endless.

The handbook lists many products that may fall into this category: painted products, wood products with any varnish or paint, clothes with rhinestones, metal or vinyl/plastic snaps (including buttons), zippers, grommets, closures or appliqués, inexpensive children's metal jewelry (ie. children's jewelry not made from gold, platinum, sterling silver, precious stones, pearls, or other absurdly expensive materials), books printed in 1985 or earlier, or any book that can be played with. In a nutshell, the items that you typically see at a family's garage sale or a thrift store.

Yet resellers and families holding garage sales have no idea whether the buttons on a child's shirt contain lead above or below the new standard, or whether a plastic toy contains phthalates. The only way to tell is by testing it, and families aren't going to spend hundreds of dollars per product to test a $5 tinker toy. In many cases, including tests for phthalates, the product must be destroyed. If families could afford to test products, even the most entrepreneurial might find it difficult to sell the product once it's turned to dust. The CPSC's handbook offers a good solution: don't sell the children's product if you are not sure.

But perhaps you are thinking, "this doesn't apply to me." Back to the handbook for guidance: "You are not required to test your products for safety. However, resellers (including those who sell on auction Web sites) cannot knowingly sell products that do not meet the requirements of the law. You can protect yourself by screening for violative products. Ignorance of the law is not an excuse." The handbook then goes on to advise: "If you should happen to sell or offer for sale a product in violation of the CPSIA or other law, CPSC's response will vary depending upon the circumstances, including the nature of the product defect, the number of products, the severity of the risk of injury associated with the product and the type of violation. The Commission's response would also take into account the fact that you may be a small business."

In other words, the "guidance" is clear as mud. You don't have to test, but you better not sell products that don't meet requirements of the law, which you can only determine if you test. If you do violate the law, CPSC may take it easy on you if you are a small business or a family holding a garage sale . . . unless they decide not to.

The heart of the problem for the resale community is the retroactive nature of the law. If the law were not retroactive, all items manufactured according to the rules before February 10, 2009 would be deemed safe, and anything made after the implementation would be certified compliant (and safe). Without retroactivity, thrift stores must follow CPSC guidelines and eliminate most of their children's products, since most fit the profile of a "risky" product (meaning there is even a slight chance they might not meet the new standard), they must be presumed not compliant unless proven otherwise.

If Chairman Tenenbaum wants coats, toys, books and children's products to remain in thrift stores this Christmas season, she needs to stop being a mouthpiece for the authors of the legislation who claim the law is absolutely perfect. If she wants families to be able to sell their kids' old clothes and toys on the weekends and remain law abiding citizens, she must start being an advocate for a common sense approach to implementing CPSIA. If she wants consumers to still have access to handmade, natural or educational products, she needs to take a serious look at why this law is hampering their availability.

Chairman Tenenbaum vowed at her Senate confirmation hearing to bring a common sense approach to CPSIA implementation. We are still waiting for signs of common sense from the agency regarding CPSIA. Now is the time for the Chairman to end the confusion and dysfunctionality in the marketplace by advocating for common sense changes to the CPSIA.

Rob Wilson is vice president of Challenge & Fun, an importer of natural toys, founder of CPSIA-Central, and a board member of the Handmade Toy Alliance. Contact him at rob@challengeandfun.com