Like Brian, Radley and Virginia, I have known about the Consumer Product Safety Improvement Act for a while, but failed to write about it because I’ve been busy with other things and it’s hard to know where to direct your efforts when there are so many foolish laws and regs luging through the halls of power these days, both in Washington and around the country. A weak excuse, but there it is. A friend of mine, also named Virginia, alerted me to this LA Times story on the new law last month. That story described the new law:
The law, aimed at keeping lead-filled merchandise away from children, mandates that all products sold for those age 12 and younger — including clothing — be tested for lead and phthalates, which are chemicals used to make plastics more pliable. Those that haven’t been tested will be considered hazardous, regardless of whether they actually contain lead.
Here’s a local TV news story on the CPSIA. Note that individual shop owners were already providing safe products in response to the lead paint fiasco of 2007:
My friend Virginia, a mother who is quite crafty in her own right and does some of her shopping at thrift and consignment shops, noted correctly in an email to me:
Most of my internet (and real life) circle of friends are all up in arms about it [CPSIA], because although its intentions are to “protect” us by making sure everything sold for children has gone through vigorous testing to check for poisonous/harmful materials, it automatically inhibits thrift stores, consignments sales, and places like etsy that sell handmade items from selling children’s goods without one of these certificates of approval.
The Times story continues:
There is the possibility of a partial reprieve. The Consumer Product Safety Commission, which is responsible for enforcing the law, on Monday will consider exempting clothing and toys made of natural materials such as wool or wood. The commission does not have the authority to change the law but can decide how to interpret it.
But exempting natural materials does not go far enough, said Stephen Lamar, executive vice president of the American Apparel and Footwear Assn. Clothes made of cotton but with dyes or non-cotton yarn, for example, might still have to be tested, as would clothes that are cotton-polyester blends, he said.
“The law introduces an extraordinarily large number of testing requirements for products for which everyone knows there’s no lead,” he said.
That “reprieve” evidently occurred as CPSC bureaucrats reacted to a flood of protests by thrift, stores, consignment shops and individual clothing and crafts makers, who sell their handmade wares on sites like Etsy. Another story from the Times declared:
After a barrage of complaints, federal regulators shifted gears Thursday and said they would no longer require that used children’s clothing, toys and other items sold at secondhand stores be tested for lead.
Thrift and consignment store operators had protested that they couldn’t afford to pay for the testing, and that doing so would require them to stop selling some goods or even go out of business.
Even the venerable Snopes picked up on this apparent loophole and assuaged some of the fears of thrift shop owners and craftspeople. This might be one of the cases where it would be good to read up on Snopes’ False Authority Syndrome page. Snopes doesn’t misstate the case, but their trust is misplaced. They note that thanks to the protests of small shop owners and craftspeople, the CPSC changed it’s mind and decided that the testing and certification would only apply to new products, but that the lead and phthalates standards would still apply to all goods sold for use by children of a certain age. Clear as mud, isn’t it? In my reading, that means manufacturers of new goods, including the craft toy and clothing makers on Etsy, are still on the hook unless their product are completely made of natural materials and that at any point, the CPSC can decide to impose the testing and certification mandates on those it has currently “exempted.” What if the CPSC decides to selectively enforce the law further, as it has already done with this exception? Who wants that kind of regulatory uncertainty?
Apparently some stores aren’t risking it. Virginia Postrel, Walter Olson and John Holbo at Crooked Timber both received reports that used bookstores were throwing away their pre-1985 children’s selections to avoid risking regulation. Regulatory uncertainty has its costs as well, in this case perfectly good children’s books. Well, as John notes, they aren’t perfectly good:
It does seem fair to note that some people have been testing old books for lead and, apparently, a significant number of the pre-1985 ones fail. So don’t let your toddlers lick the colored illustrations in old books, people. A lot of thift store items fail – zippers, clasps, rhinestones are frequent offenders. So there are a diversity of issues here.
Lead is certainly not healthy for developing brains and the results of lead poisoning can be tragic or fatal. Here’s a quote from a CPSIA supporter from the first Times piece:
Lead can also be found in buttons or charms on clothing and on appliques that have been added to fabric, said Charles Margulis, communications director for the Center for Environmental Health in Oakland. A child in Minnesota died a few years ago after swallowing a lead charm on his sneaker, he said.
No one is denying the danger of lead or implying that the death of a child isn’t tragic. Still, we need to keep risks in perspective and remember that the perfect can be the enemy of the good. We can focus on minutiae and miss the big picture. Hundreds of children die each year in swimming pools and in various other activities that are far more dangerous than wearing clothes or reading from books that contain lead. Risks need to be thought about and weighed carefully by the parent consumer, who bears the responsibility for raising his or her child in a safe and nurturing environment. The decisions a parent make may involve allowing the children to take risks and even wear clothes that might contain a little lead or read books with lead ink on their pages. Those ought to be the kinds of decisions parents make for their own family.
Not only is such nannying a threat to personal responsibility and liberty, it allows big companies to push their smaller competitors out of business. True some shops appear to have a reprieve, but how long before Mattel (whose lead-based paint on some of their toys caused a hysteria in 2007, which directly led (no pun intended) to this law) or other large manufacturers to lobby the CPSC to require every seller of children’s goods to have testing and certification imposed on their products? After all, it isn’t fair to us and allows dangerous products to get into the hands of children, such companies will claim. Of course, such a regulatory regime would have the effect of eliminating the children’s sections of thrift and consignment shops, used book stores and wipe out individual craftspeople as well. Regulatory capture’s a bitch like that. The big boys can absorb the cost of regulations, but know that their smaller competitors can’t, so they push for regulations to eliminate the competition. Also, this is where the lie is put to many of the folks who claim to be for individual freedom, diversity and downright funkiness and yet support regulations such as these–laws like these eliminate the funky factor. They destroy individual creativity and experimentation and allow the corporate monoculture, so abhorrent to many, to take over unchecked. As my friend Virginia notes in her email:
It basically really sucks because those of us that shop for children, in an effort to be frugal, “green,” organic, or unique, will not be able to. Only companies/sellers that are able to afford the testing for certification will be able to sell children’s goods. And how many thrift stores are going to be able to keep up with certificates for everything? I’m sure it’s a lot more trouble than it’s worth for them.
I’ve written before how law and regulation can be an insurmountable impediment for the weakest, poorest and most powerless in our society. In this case at least we will partly realize what we’re missing when the great independent thrift and book shops start going under and fewer people make handcrafted clothing and toys for children. Still, we’ll never see what could have been in this small niche of our largely self-created social order. This is how the American dream of hope and opportunity dies, one well-intentioned, but misguided rule at a time.
Life is a messy and wonderful experience. If you try to hermetically seal life, even children’s lives, from risk, you will kill all that messiness and creativity that makes life worth living. Yes, risk can be damaging, painful and even fatal, but, in this case, the cure is worse than the disease.
The libertysphere (and elsewhere) is abuzz with laments over lost freedoms, lost livelihoods and needless waste of used books and clothes:
Walter Olson likened the law to banning books in his City Journal article and penned an impressive series of provocative posts at Overlawyered as well (I know you’re reading this in the a.m., but I finished it late last night, so no grief over unnecessary alliteration:) Olson also noticed the odd Snopes entry.
Iain Murray at CEI’s OpenMarket picks up on the book banning theme as well.
Brian Moore at the wonderfully-monikered Sinners in the Hands of an Angry Blog has already felt the chilling effects that the “save the children” rhetoric has on debating the issue.
And finally, the inimitable Katherine Mangu-Ward disses the CPSIA at Hit & Run and is preparing an article on the subject for an upcoming issue of Reason.
X-posted at Fr33 Agents.