New Law Cripples Small and Independent Children’s Toy and Clothing Makers

Thursday, February 12th, 2009

Longtime reader Bronwyn Ramey told me months about the Consumer Product Safety Improvement Act, a honking bit of reactionary, poorly-thought out regulation that threatens to put all but the large toy and children’s clothing makers out of business. I’ve meant to do something on it since, but because it’s not part of my regular beat, I haven’t had the time to bone up on the issue as much as I’d need to in order to write about it intelligently.

Unfortunately, with just a few exceptions, no one else has been writing about it, either.  Which means too few people knew about the law before it took effect yesterday (it passed the House almost unanimously—only Ron Paul voted against it).  One exception is legal blogger Walter Olson, who has owned this story for weeks. Check out his Forbes piece for a good overview, then browse his website to see just how sweeping and far-reaching the legislation really is.

The gist is that the new regs impose debilitating new testing requirements on anyone who makes, markets, or sells toys to to children. The bill is a hysteria-filled reaction to last year’s China lead scare, and its reach is really pretty incredible. Thrift stores, libraries, independent toymakers, people who hand-make toys and clothes to sell online, and on down the line are all going to be affected. It’s going to put thousands of people out of business.  Just what the economy needs.

As is the case with most new regulations, the one group that won’t have any problem complying will be the giant toy companies—the very companies responsible for the lead scare that inspired the legislation in the first place. In fact, as the D.C. Examiner’s Tim Carney points out, the toy industry giants bulked up their presence in Washington in order to support the new regulations:

Mattel—whose leaded toys kicked off this whole scare—beefed up its lobbying effort when the legislation appeared. The company’s lobbying budget, which had been steady at $120,000 per year from 2002 through 2006 ballooned to $540,000 in 2007 and $650,000 in 2008—a 442% increase from two years earlier.

In late August 2007, Mattel, the largest toymaker in the world, hired a new lobbying firm, Johnson, Madigan, Peck, Boland & Stewart, to lobby on the bill. One of their lobbyists on this issue was Sheila Murphy, recently the legislative director for Sen. Amy Klobuchar, a Democratic member of the Commerce Committee’s Consumer Affairs subcommittee. Klobuchar became a cosponsor of the bill in late September 2007.

Hasbro, the world’s No. 2 toymaker, had never had a Washington lobbyist, according to federal lobbying filings, before October 2007, when the company hired the Duberstein Group, headed by Ken Dubertstein, the former White House Chief of Staff under Ronald Reagan. Since then, Hasbro has spent $500,000 on lobbying.

But these industry giants weren’t resisting regulation—they were embracing it. Carter Keithley, president of the Toy Industry Association—of whom Mattel is the biggest member—told this columnist “we were early proponents of adopting mandatory laws to require toy testing.”

Supporters of a massive regulatory state are often the same people who lament the ubiquity of big corporate chains—what you might call the Gap-ification of America. I’ve written a bit about this before, but what they don’t seem to realize is that not only are big corporations more likely than smaller businesses to be able to afford to comply with new regulations, they’re well aware of this fact, and so they’re often the ones pushing the regulations behind the scenes.

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52 Responses to “New Law Cripples Small and Independent Children’s Toy and Clothing Makers”

  1. #1 |  Tim C | 

    So the children’s motorcycle/ATV provision didn’t get removed apparently. Un-fucking-believable. “Just what the economy needs.
    ” NO SHIT. Jesus.

    From “browse his website” above (CPSIA: “Black Tuesday” for youth motorbikes) – “The value of inventories that now cannot be sold is unknown, but it probably exceeds $100 million, by our estimate. Just take 7,500 franchised dealers, many of whom carry $25,000 worth of inventory at wholesale cost.” And – “We cannot sell you replacement parts for the ones you already own. This is not our decision; it is being made for us.”

    W… T… F…

  2. #2 |  Tim C | 

    I mean, fuck, we all know kids like to get high by sucking on their battery terminals. It’s for the children!

  3. #3 |  Tim C | 

    Wow, for more on this, Dirt Rider has an article – http://blogs.dirtrider.com/6470022/news/youth-atv-and-dirt-bikes-banned-by-cpsia/index.html

    “You can’t even buy one from a private party or your own parents.”

  4. #4 |  David | 

    Another perfectly-crafted law. The corporate lobby gets to eradicate small businesses and the second hand market, and no politician would dare vote against “keeping children safe”.

  5. #5 |  hamburgler007 | 

    That headline should read “New Law Differently Ables Small and Independent Children’s Toy and Clothing Makers” and then it doesn’t sound so bad, and bonus points for being politically correct.

  6. #6 |  David | 

    Dirt bikes, too? WTF? Almost everything that’s fun as a kid carries with it an element of danger.

    George Carlin was right when he wrote “Grown-ups have taken all the fun out of being a kid, just to save a few thousand lives. It’s pathetic. “.

  7. #7 |  Dave Krueger | 

    Only someone who is for killing children can be against his law.

  8. #8 |  Mattocracy | 

    Ron Paul is once again the only voice of reason in Congress.

  9. #9 |  Tim C | 

    Yeah, another thing – I guess pellet guns are out. #6 David, no shit… “You’ll shoot your eye out!!!” Teach your kid to shoot, go to jail – a convenient outcome, no?

    Bailouts/stimulus, and now this. Truly “lights on, nobody home.” We…are…fucked.

  10. #10 |  thomasblair | 

    So this Walter Olsen is a colleague of yours?

  11. #11 |  Mark Thompson | 

    As one of the “few exceptions,” it’s worth pointing out a few clarifications.

    First, this law covers a lot more than just toys. It applies to everything defined as a “children’s product,” which is described in the statute as anything intended primarily for use by a child under the age of 12. So this includes everything from children’s books to books for young adults to clothing to toys to just about anything used in a school, to name just a few areas.

    Second, one of my pieces on this topic (for the now-defunct Culture11) discussed the issue of massively-increased lobbying by the big companies. My research for that piece led to the conclusion that the big toy companies lobbied so heavily for this law because: 1. they knew they could adjust to it, and 2. they had a major public relations need to appear supportive of the legislation in the wake of the lead toy scandals. They most likely were not out to screw the smaller businesses, which represent a pretty tiny fraction of their competition; however, they obviously had no reason to concern themselves with the ability of small and medium-sized businesses to comply with the new law. In recent months, the trade groups that these companies dominate have in fact started to get involved in fighting to change the law.

    The trouble is that small and medium-sized businesses were more or less completely shut out of the legislative process. The precious few businesses and small business-dominated trade groups that got wind of this law at the legislative stage were more or less repeatedly told that they had no grounds to object because the big businesses and trade groups were on board, and therefore the law was clearly not overly burdensome and clearly would be effective.

    In the process, Congress completely ignored alternatives to this legislation that would have actually, you know, had the ability to improve product safety. Instead, it insisted on forcing through the testing and certification requirements which effectively guarantee that the CPSC will be on the lookout primarily for paperwork violations (which are easier to catch) than spending precious resources looking for toys that might actually pose some kind of marginal risk to children.

    Anyhow, it’s good to see this issue finally getting brought to the limelight.

  12. #12 |  Jeff S. | 

    I’ve followed the story on Overlawyered for a little while. The reason why all of these things are being thrown out is that they may contain lead or phthlates. Youth motorcycles are being shut down because the alloys used in making motorcycle parts may contain lead. I guess the actual danger posed to our youth is the ever-present threat that one of them might eat the muffler. Children’s books that were published before 1985 are essentially illegal now because they might contain lead-based ink (and the cost to actually test this premise would be prohibitively expensive and would destroy the book). Thank goodness our kids will be safe if they ever decide to lick their copies of Nancy Drew.

  13. #13 |  Dave Krueger | 

    To me, this is just as corrupt as selling a Senate seat.

  14. #14 |  Zeb | 

    Somebody is going to make a killing on “not intended for children under 12″ stickers.

  15. #15 |  Robert | 

    Then they should just amend the law so that it only applies to products manufactured outside the US.

  16. #16 |  roy | 

    I wonder if you have to test the stickers…

  17. #17 |  Stephen | 

    Wow, even books? Fahrenheit 451 is coming true. I guess 1984 is next.

  18. #18 |  Brandon Bowers | 

    Did they really need to hire lobbyists for this? Seems like anyone could go around asking congressmen “So you would prefer that every single innocent child in the country dies of lead poisoning?”

  19. #19 |  Bob | 

    OMG

    This is the stupidest thing I’ve ever seen. Basically, every member of the House and Congress except for one is an utter retard, a slave to their corporate masters, or both.

    This has eliminated any doubt as to the low quality of political figures in America.

    The obvious question: “Wait! What about small production runs that can’t tolerate this kind of testing?” would have derailed this from minute one if anyone in congress had a brain.

  20. #20 |  Bob | 

    Sorry, I meant House and Senate.

    The brobdingnagian proportions of the stupidity temporarily kept my mind from selecting the correct words.

  21. #21 |  solinox | 

    #16 — Kind of like the “Not Intended for Use as Sleepwear” on all the pajamas I buy for my kids now?

  22. #22 |  Stephen | 

    I am going to have to use the word “brobdingnagian” when describing my next fish on the fishing blogs that I frequent.

  23. #23 |  Big Chief | 

    This highlights one of the saddest things about what our country is doing to itself.

    Look at the big three auto companies. There’s a level of panic because they are going under. During college I worked for GM and thought they were doomed back in 1985. So of course we have to bail them out because “they’re too big too fail.” But I’ve yet to hear any pundit point out the part of it that’s ACTUALLY bad – where are the small or midsized competitors? There aren’t any because we’ve regulated them out of existence. Government and industry have colluded in erecting high barriers to entry, and you see the fruits of that work.

    Having learned that lesson it’s obvious we are going to implement that in the toy industry now. What a joy to live in a country with no sharp corners! We’re safe, but we’re doomed.

  24. #24 |  bbartlog | 

    I believe a handful of senators also opposed it (like 3… Kyle and Demint and one other… you can look it up). Still, a tiny handful.

    In response to the uproar, the bureaucrats in charge of enforcing the law have assured people that they aren’t actually going to be enforcing the law as written (i.e. they’ll give a pass to flea markets, yard sales and so on). Because of course they should really just make it up as they go along instead of insisting that Congress pass a reasonable law.

    Given that Hasbro and Mattel have been outed as the instigators of this madness, I think it’s time for a boycott – and I would also recommend that those who are going to get hit by this law should simply ignore it in the spirit of civil disobedience. Let’s see if they have the stones to enforce it a thousand times over.

  25. #25 |  chance | 

    In Bend, Oregon, according to ABC affiliate KOHD, consignment store Stone Soup decided to take the unusual step of screening its stock for lead using the X-ray fluorescence method. It cost $1,500 a week to rent the equipment, 30 percent of tested items failed (lots of zippers, rhinestones and skateboards out there with lead content), and the store found itself having to fill out scads of paperwork since each failure had to be reported to Washington under the law’s defect-notification provision.

    While the law may indeed be badly written, if the above is correct, I’m pretty astounded the number of items with lead above was 30%. Perhaps that number isn’t representative, but if it is I think some type of stronger regulation is indeed necessary.

  26. #26 |  supercat | 

    While the law may indeed be badly written, if the above is correct, I’m pretty astounded the number of items with lead above was 30%. Perhaps that number isn’t representative, but if it is I think some type of stronger regulation is indeed necessary.

    Either that, or many items contain lead in quantities below that which would actually cause harm. Given that people haven’t been dropping like flies, I’d tend toward the latter explanation.

  27. #27 |  Frank | 

    Worse than that, libraries and book stores are now having to face the possibility of banning children under twelve, because there is no way they can test all their books for lead.

  28. #28 |  freedomfan | 

    Dear Congress:
    STOP HELPING US!
    Thank you.

    Seriously, I am astounded that the domain name http://www.NukeDC.org isn’t taken. The product of that town is evil. If 90% of the federal laws were repealed and no new law passed ever again, is there even the vaguest chance we wouldn’t be better off?

  29. #29 |  bbartlog | 

    but if it is I think some type of stronger regulation is indeed necessary.

    Because… people are eating their zippers? Grinding up their skateboards and snorting them? Seriously, how are these products hazardous? Lead poisoning is not a contact phenomenon.

  30. #30 |  Cynical In CA | 

    Big business are always the first to run to the government for protection from upstarts. Read your Progressive Era history.

  31. #31 |  chance | 

    Because… people are eating their zippers? Grinding up their skateboards and snorting them?

    &

    Given that people haven’t been dropping like flies, I’d tend toward the latter explanation.

    Yes, I will admit that my knowledge in the chemistry and toxicity of lead is limited to what wikipedia tells me, but anyone with a toddler knows that everything will go into their mouth if you look away for a second, and yes that includes books, zippers, and other items you wouldn’t expect. Sometimes older kids who should know better do the same thing. So, many of the sarcastic comments above are disingenuous in my opinion. And since lead has a range of health effects before death sets in, it’s quite possible we wouldn’t expect to see “people dropping like flies”.

    Now that said, I am not defending this law per se. I think study should be done (if it hasn’t already) to figure out if the lead in all these items is really a threat, and if there is a better way to confront the problem.

    It would be prohibitively expensive for consumers to test every item they want to buy, so how does one make an informed choice, assuming the high figures mentioned in that article are correct (and I acknowledge they may be inflated)?

  32. #32 |  Bronwyn | 

    A stay is in place – although the US PIRG is fighting it – putting off the testing and certification requirements for another year. But in the meantime, everyone is still required to stick to the limits.

    The amazing thing to me is that they don’t allow small businesses such as myself to rely on component testing. One would expect that lead-free fabric plus lead-free cotton batting plus lead-free thread equals a lead-free quilt. I’m not an alchemist, after all.

    The law requires end-product testing by a third party.

    A few things, here. The law, as I said, doesn’t allow for any exclusions and does not allow component testing. The CPSC has made exemptions for dyed and undyed yarn and fabrics, among other inherently lead-free items, but only after the handmade community screamed bloody murder over it.

    The caveat, though, is that these exemptions aren’t enforceable. Any state AG with a bee in his bonnet can decide to go after somebody.

    And how many home crafters have the thousands of dollars to spend on third party testing, never mind the waiting lists.

    Oh yes, and those of us who don’t create in batches are just completely SOL. There is no exemption for unique items.

    There is just no limit to the stupidity of the CPSIA.

    So now I await word on the certification on some of the snaps I use, and will sneak by for the next year on that. In the meantime, I’ll try to figure out how to make overalls and bibs without snaps, buttons, zippers or velcro.

    The ban on pre-1985 books, though… that is the real tragedy of this. I can’t even express my upset of that one.

  33. #33 |  Bronwyn | 

    I linked to this article from the etsy forums. I hope you don’t mind, Radley.

    I can’t figure out how to do the trackback-looking thingie, though.

    Here’s the thread.

    /hopes her html works

  34. #34 |  Bronwyn | 

    Ugh. Just click my name, the thread is there.

  35. #35 |  David | 

    The caveat, though, is that these exemptions aren’t enforceable. Any state AG with a bee in his bonnet can decide to go after somebody.

    And we’ve seen the danger of giving those bastards anything that they can freely interpret.

    Bronwyn, you can use this code [a href="URL">Screen Text Here</a] to post links, just use the the “” brackets on the outside.

  36. #36 |  Bronwyn | 

    Oh, I forgot that we use [] here, instead of

  37. #37 |  Bronwyn | 

    haha! those sideways carat thingies disappeared! *sigh* Can’t win for losing, today

  38. #38 |  Luci D | 

    I have a friend who’s sole means of income is from making and selliing toys intended for ages 3+. He handmakes them all using craft foam, wiggle eyes, tongue depressors and such like, but according to the new law, even though all of his component parts are safe, the end product has to be tested in toto, which he cannot afford. In this struggling economy, for the last few months he has barely been able to stay afloat as it is. If he doesn’t find a job in the next few weeks, he’ll be homeless. I know another woman who makes the cutest handpainted clothing for infants. She uses clothes commonly sold at Toy-R-Us and non-lead based paint, but she’s now in the same situation because it has to be tested AFTER the safe product has been applied to the safe product. Thanks Mattel. Thanks Congress. Another fine example of the abuse of money and power.

  39. #39 |  CPSIA chronicles, February 13 | 

    [...] Radley Balko blogs on the law at The Agitator (and also has kind words for my coverage, for which thanks). And Katherine [...]

  40. #40 |  Eric H | 

    While I have been pursuing this for months, the increase in lobbying by companies like Mattel appears to be more defensive than offensive. The real forces behind this law have been the Nader groups, Public Citizen and US PIRG. They have appeared at every single hearing, they have been cheerleading the law since its inception, they have opposed any attempt to make it reasonable (and enorceable), they have been running a FUD campaign against anybody and everybody who raises questions about it. All we have been asking for has been a few tweaks to the law so that the CPSC is not faced with an endless cycle of enforcement, increased prices and decreased consumer choice, market entry by the clueless, repeat. The lead limits were 600 ppm before this law, so all the CPSIA has done is require testing of safe clothing and toys. But the costs of testing (including the logistics) are so high that it is killing the alternatives to the mass producers that got the media attention that led to this in the first place. Congress has decided to throw the baby out with the bathwater “for the children”.

    The Fashion-Incubator.com website and forums began tracking this long before Walter Olson discovered it, and now Kathleen has been targeted by some of the Congressional supporters and “consumer’s” groups. Those groups continue to lie about testing costs, but never seem to be able to produce actual quotes. We have repeatedly asked for them, since we could send many customers their way.

    Incidentally, the NRDC, which opposed the CPSC General Counsel rulling that the phthalate limits should not be applied retroactively in a lawsuit, is selling private label children’s clothing. Private label is specifically cited in the law as one form of manufacturing. NRDC insists, however, that they are not a manufacturer. This is just one of the many bits of evidence that these people have not even read the law (even as they claim that we have not). Not only are they selling children’s clothing, but they have used the trademarked name “Onesie” (owned by Gerber):

    https://secure.nrdconline.org/08/nrdc_simplesteps

    Go ahead, write them and ask them if they have tested it and ask if you can get a copy of the GCC. Lotsa luck.

  41. #41 |  supercat | 

    Yes, I will admit that my knowledge in the chemistry and toxicity of lead is limited to what wikipedia tells me, but anyone with a toddler knows that everything will go into their mouth if you look away for a second, and yes that includes books, zippers, and other items you wouldn’t expect.

    How much lead is going to get into a person’s bloodstream from sucking on a zipper made from an alloy that contains 1% lead? Or, for that matter, 10% lead or 100% lead? If someone were to swallow an object made from metalic lead and it remained in one’s stomach for a long time, the lead would eventually be dissolved sufficiently to enter the bloodstream, but–especially with objects that contain smaller amounts of lead–I would think that heaving a metal object in the stomach would generally pose far more serious concerns than the chemical properties of the lead therein.

    Note that chemical compounds like lead oxide are more readily absorbed into the body and thus pose a greater risk. Even there, however, there’s a difference between sensible caution and paranoia.

  42. #42 |  Kevin Carson | 

    Bloody typical of most regulation. As Eric Husman of GrimReader blog pointed out, the small apparel manufacturer comes up with a couple dozen designs and then produces the ones that sell, on a just-in-time basis. This law essentially criminalizes that business model by imposing high testing costs on each separate design, so that the only way to make a profit is large batch production on the Sloan model. But then that’s the main effect of most regulation: to criminalize low-overhead microenterprise using spare capacity of capital goods most of us own anyway. That makes it impossible simply to sell surpluses generated in the household and informal economy, or to gradually shift one’s income source a bit at a time from wage labor to the household economy, at low risk and cost. No, if you want to engage in business at all, you have to lay out the capital to do it on a large scale, and then either use the capital to full capacity or go Chapter Eleven.

  43. #43 |  KBCraig | 

    Wow, so much for lead pellets for my 6 year old’s pellet rifle. Or ammo for his .22 rifle.

  44. #44 |  Children Clothing | 

    Children Clothing…

    Longtime reader Bronwyn Ramey told me months about the Consumer Product Safety Improvement Act a hon [...]http://www.kidsclothmerchant.info/cienta-kids-shoes-41-088-toddleryouth-redwhite-polka-dots-footwear/ [...]…

  45. #45 |  perlhaqr | 

    Does it suck? Sure.

    Ultimately, though, as downvoted as I’m likely to get for saying it, this is a good thing.

    Contempt for the law is going to become a much more mainstream convention. Makers of handmade children’s clothing tend not to be the sort of wild-eyed gunslinging anarchists that hang out here in Radley’s forum.

    The faster it all comes down, the faster it can go back up.

  46. #46 |  CPSIA: It’s for the children! — FR33 Agents | 

    [...] of FR33 Agents. Please poke around and let us know what you think. Thanks for visiting!Like Brian, Radley and Virginia, I have known about the Consumer Product Safety Improvement Act for a while, but [...]

  47. #47 |  CPSIA chronicles, February 19 | 

    [...] close ally PIRG, boast of having led the campaign for a maximally stringent CPSIA. Related points here (Eric Husman) and here (Deputy [...]

  48. #48 |  March Links: Stimulus Madness, Grants.gov, Health Care and More! | 

    [...] More on unintended consequences and kids in “New Law Cripples Small and Independent Children’s Toy and Clothing Makers:” The gist is that the new regs impose debilitating new testing requirements on anyone who [...]

  49. #49 |  Mr Nobody | 

    It will be fun to witness when the people get enough of Washington’s shit.

  50. #50 |  The Agitator » Blog Archive » Wow. | 

    [...] Last February I linked to a piece by Tim Carney explaining how the big toy companies had ratcheted up their lobbying efforts in favor of the bill. Carney wrote: [...]

  51. #51 |  Backhanded surprises « Blunt Object | 

    [...] regulatory capture in market regulation are surprised.  Consider for example the pro-crotchfruit Consumer Product Safety Improvement Act, rushed into legislation as a kneejerk reaction to teh ebil chemicalz found in children’s [...]

  52. #52 |  LetEmEatLead | 

    BOGART
    Y’know, kids, somewhere in this century the U.S. government got turned around. It’s their job to work for you. … And don’t get nervous — the only bad break you could get is if the President turns out to be a Kenyan, or a commie.

    ALAN
    With our luck he’ll probably be both.

    BOGART
    Governments are simple. I never met one who didn’t understand a slap-down in an election, or a slug from a 45.

    [with apologies to "Play It Again, Sam"]

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