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Congressional Ban On Lead In Toys Has Unintended Consequences

By February 9, 2009

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Last July, Congress overwhelmingly passed a get-tough law that drastically reduces the amount of allowable lead and bans more than trace amounts of six types of chemicals that affect the human hormone system for toys that are designed for children under age 12.

Sen. Dianne Feinstein (D-CA) told USA Today, "Beginning [Tuesday], parents will have peace of mind, knowing that the toys they buy for their children are safe."

Ah, if life were that simple.

This bill represents the law of unintended consequences writ large and should be a cautionary tale as Congress "debates" the massive economic "stimulus" bill.

Caught In The Net
For example, before 1980, printing ink contained lead. On Friday, the Consumer Product Safety Commission announced that it would not "prosecute anyone for distributing 'ordinary' children's books" published after 1985 that contain lead exceeding the new limit, letting public libraries and used booksellers off the hook. Sorta. Maybe.

Businesses that sell Honda motorcycles designed for children are not even that lucky. The change in the lead requirement means that many entry-level Honda trail bikes (the CRF 50F, CRF 70F and CRF 80F) and a small all-terrain vehicle (the TRX 90) are illegal if sold for 12 year olds -- even "though paint on those models contains lead within acceptable limits." What exceeds the lead standard? Substrate material, that is, "alloy materials commonly used to manufacture motor vehicles." You know, the stuff in the engine, the brakes, the non-exterior parts.

Total value estimated (all manufacturers, not just Honda) at $50 million. I know, I know. Congress can't get excited about anything with that few zeros. But you and I should.

What about thrift stores? In January, the CPSC said that stores selling used children’s products, such as thrift stores and consignment stores, were not required to certify that those products meet the new lead limits or phthalates standard ... but that they could still be prosecuted if something that they sold exceeded the standard. That's a Catch-22, don't you think?

One Seattle Times reader itemized the costs for testing a children's bib which has five components:

  • Five components for lead testing at $70 each : $350
  • Five components for phthalates testing at $350 each : $1700

Assuming you could find a lab that could do the testing, that's $2,050 in testing for a $10 handmade bib. Or handmade cloth diapers. And there are no documented cases of lead poisoning from textiles. (None from motorcycles, either, I'm betting.)

Back Story
What products were Congress trying to remove from the marketplace? "Toys containing a plastic-softening chemical linked to infertility and testicular cancer in men," according to the Salt Lake Tribune. And yet this bill, the Consumer Product Safety Improvement Act (CPSIA) also contains the toughest lead standard in the world. As someone else has noted, if your 12 year old is eating books and chewing on clothes, there are bigger issues at play than the need for government regulation.

This law moved forward in the wake of news reports about children's toys imported from China with excessive levels of lead (summer 2007). Why didn't Congress focus on testing imports (remember the poisoned pet food?) and funding agencies at a level appropriate to today's global economy? Why not fine Mattel and other multinationals for violating the existing law, you know, enforce the laws on the books?

Writing tougher laws doesn't lead to behavioral changes; enforcing laws leads to behavioral change.

No political hay lies on that route. Instead, in December 2007 the House unanimously passed a 62-page law, HR4040, after suspending the rules. Then the Senate passed (79-13) a different version. The House concurred (424-1) with the conference report (again, after suspending the rules); the Senate followed suit (89-3).

Who were the four curmudgeons? Sen, Coburn (R-OK), Sen. DeMint (R-SC), Sen. Kyl (R-AZ) and Rep. Paul (R-TX).

Who didn't vote? In the Senate: Clinton (D-NY), Coleman (R-MN), Domenici (R-NM), Hagel (R-NE), Kennedy (D-MA), Klobuchar (D-MN), McCain (R-AZ) and Obama (D-IL). In the House: Broun (R- GA), GinnyBrown-Waite (R), Buyer (R), Conyers (D), Cubin (R), Dicks (D), Hulshof (R), Maloney (D-NY) and Rangel (D).

This law, which was enacted on 14 August 2008 with President Bush's signature, gave the Consumer Products Safety Commission one year to promulgate rules that exempted products with component "inaccessible" by children. Thus, the law was written to include (almost) everything defined as a child's product, leaving CPSC to write rules that exempted items. This is backwards, guilty-until-proven-innocent lawmaking.

It's especially backwards when anecdotal data suggest high levels of lead are not a widespread problem. In December an environmental group in Michigan found that only 3.5% of the children's toys that they tested had lead levels that exceeded the new lead requirement of 600 parts per million. Another 15% of children's jewelry exceeded the limit. Neither data point supports the guilty-until-proven innocent tactic used in this bill.

What You Can Do
These examples illustrate why Congress should not be micromanaging. Limits should be based on sound science, should incorporate public comment, and should change when scientific knowledge changes, not when political winds shift.

Last week, a few Republican Congressmen got together to try to get Congress to put a hold on the legislation. Just a little late to the party, don't you think?

Also last week, Democrats blasted the head of the CPSC, accusing her of mismanaging implementation of the bill. They're a little late to the party, too. And neither group seems to "get" that the law as written is pretty darn black-and-white:

Section 101 (a)(1) .... any children’s product (as defined in section 3(a)(16) of the Consumer Product Safety Act (15 U.S.C. 2052(a)(16))) that contains more lead than the limit established by paragraph (2) shall be treated as a banned hazardous substance under the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.).

It was Congress that said the law would go into effect 180 days after enactment. And what no one is talking about is that this bill also calls for the lead level to be cut again in 180 days and again in 2.5 years.

Nevertheless, it wouldn't hurt to contact your Senators and Representative Monday and ask them to suspend some more rules by postponing implementation of this bill. But don't hold your breath.

On the web:
:: OverLawyered, CPSIA chronicles, February 6
:: Danny Westneat, When rules trump ingenuity
:: WalletPop, Will Tuesday launch a black market in kids' clothes?
:: Detroit News, Stiffer rules may make kids' resale items scarce


February 9, 2009 at 9:26 am
(1) ed stevens says:

You say, “On Friday, the Consumer Product Safety Commission announced that it would not “prosecute anyone for distributing ‘ordinary’ children’s books” that contain lead exceeding the new limit…”
Wrong! CPSC said “ordinary children’s books printed after 1985….”

February 9, 2009 at 12:54 pm
(2) Kathy says:

Thanks, Ed — I’m not sure why I deleted the 1985 reference. Will add it back in.

February 17, 2009 at 3:24 pm
(3) Paul says:

So I use lead weights when I go fishing – will I be arrested if I try and teach my grandson how to fish if there are lead weights on my boat? Will I be charged with a misdemeanor, felony or is it straight to jail?

February 17, 2009 at 3:32 pm
(4) Kathy says:

Hi, Paul — as I understand the law, it applies only to products designed *specifically* for children. Given that lead weights are not specifically designed for children to use, I don’t see how they — or you — would be affected by this law.

That said, I am not a lawyer! :-)

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