CPSIA - The Incoherent Theory of the "Common Toy Box"

Rachel Weintraub, fear monger extraordinaire, gave a vigorous defense of certain popular urban myths about lead in this week's CPSIA hearing. Among her most cherished distortions is that old standard, the "common toy box". I have discussed this in the past (here and here) and with your indulgence, will again take on Ms. Weintraub and her assertion of this idea.

To remind you, the "common toy box" is the principal justification for the age limit in the definition of "Children's Product", namely 12 years old and younger. This definition means that the lead limits apply to ALL products intended for children up to 12 years of age. The justification for this super conservative posture? We hear it all the time from the Waxmanis - the common toy box, of course.

Ms. Weintraub asserts that a common toy box is present in every house, and therefore a young child might gain unfortunate access to an older child's toys. Given her assertion (that she says "everyone" would agree with) that there is "no safe level for lead", the possible exposure of young children to the toys of their older brethren is an intolerable risk. Or as she puts it, "could be deadly".

Rachel explains her method of solving this problem in her house, which she seems to think is reasonable:

"Children play with products that are in the household. As I mentioned, I have three children. I have [an] almost six, almost four and one year old. My children are very aware of what choking hazards are. They have toys that stay in their room. But there's an important difference between a choking hazard and lead, and that is not only can I not identify whether the product has lead, they certainly can't either. So we need to have laws that protect children in concrete reasonable ways that reflect how children actually interact with toys."

Case closed?

I must demur here. Ms. Weintraub's argument is incoherent and particularly inapplicable here.

First, the risk from lead stems from ingestion. Rachel's focus here is on mouthing, and for simplicity, I will ignore ingestion by breathing (relevant only to lead-in-paint). Ms. Weintraub correctly notes that young children will mouth toys and other children's products inappropriately. Children under 36 months of age are so prone to inappropriate mouthing that small parts are illegal in products suitable for them. The CPSC has long had guidelines for manufacturers to help them objectively determine which toys are suitable for children under three years of age.

By carefully controlling access to these possibly dangerous toys, Rachel is being a good parent. She is to be commended. Interestingly, Rachel's argument also concedes that parenting has a role in safety with children's products. It would not be responsible parenting for anyone, including Rachel, to rely on the government for making these judgments. She still has to monitor and supervise her children.

Interestingly, Congress is also on record on this topic. Small parts are a known hazard, and as noted, have long been illegal for kids under three years of age. That is not in dispute and in fact, became law (rather than simply the voluntary F963 standard) under the CPSIA. The Child Safety Protection Act of 1994 instituted mandatory safety labels for products suitable for kids aged four to six years of age (they were previously voluntary) for (among other things) small parts. Why? Congress recognized that items most likely to be in the "common toy box" and most attractive to children under 36 months of age are those toys intended for kids in the 4-6 age range. The mandatory safety labels were intended to put parents on notice to handle these products with special care. Congress did not make these products illegal notwithstanding the slight risk of inappropriate mouthing.

Congress took another swipe at this issue in the CPSIA itself. In adopting the "primarily intended for" standard in the definition of "Children's Product", Congress acknowledged that while other items in the household might contain lead and might be used by children, those products did not pose the same risk as products that would be attractive to young kids possibly prone to inappropriate mouthing. Put another way, Congress recognized that the level of risk did not justify regulating these other items. [This is the source of the tortured reasoning of the pen exemption decision.]

Human factors experts at the CPSC have never developed evidence that items for older children (six and over) are any more attractive than adult products to the younger children who because of their mouthing behavior and developmental state are most at risk. Hence, there has never previously been a perceived need for such restrictive rules to protect against mouthing.

Either mouthing is a big issue, or it is not. Rachel's good parenting on small parts is simply an anti-mouthing strategy. There is no other reason to restrict small parts in her household. Having recognized the risk of inappropriate mouthing, Rachel and parents like her can fully be expected to closely monitor the mouthing behavior of their kids. To claim otherwise is disingenuous. When their kids suck on zippers, moms like Rachel will take it out of their mouths before "poisoning" can occur. [You would have to suck on a brass zipper for years before your blood lead levels would change measurably.] Likewise, if the kids start eating out of the dog's bowl or licking doorknobs or whatever absurd childhood activity is posited, moms with Rachel's philosophy of parenting will swoop down. Either they are attentive or they are not. Thus, Rachel's kids are just as secure against lead as against small parts.

Even more interesting to me is the notion that Rachel is holding up her behavior as the "standard". I think this is an intriguing (but rational) concession on her part. Rachel is apparently a thoughtful parent and interested in her kids' welfare. She acknowledges her personal responsibility to maintain a safe household for the kids' benefit. So apparently in Rachel's model, parents can think and can be held to a standard of exercising good judgment and individual responsibility. The government is not responsible for everything, it appears.

If we are to be sent down the river because of Rachel and the fantastic "common toy box", I think the incoherence of her argument deserves careful exploration. Either common toy boxes cause tinjuries, or they don't. Her parenting model does not leave much room for risk. Where's the actual injury data to support her assertion of this dreaded risk? I think her words alone should NOT suffice. After all, of the 14 common toy box recalls in the history of the CPSC, none related to the CONTENTS of a common toy box.

Urban myths should not be the basis of law.