All The News That's Fit To … Wait. No One Told Us There Would Be Reading Involved.

The New York Times, after months of neglect, has finally weighed in on the debacle that is the Consumer Product Safety Improvement Act of 2008.  The Times' conclusion?  Everything is cool.  The law is vitally necessary.  And worries about what the law will do to small business are completely unfounded.

Last year, Congress passed the Consumer Product Safety Improvement Act, giving new authority and resources to a shockingly understaffed agency. The law has been described, accurately, as providing the safety net that consumers assumed they already had.

Unfortunately, the commission has yet to implement important aspects of the new law. The delay has caused confusion and allowed opponents to foment needless fears that the law could injure smaller enterprises like libraries, resale shops and handmade toy businesses.

My conclusion diverges rather sharply from that of the Times, but it can be expressed in fewer words:  The Times is full of shit.

Either the Times editorial board did not read the law, or they did, and they are lying to their readers.  I suspect that the first option is true.

I have read the law.  The specific worry about what the law will do to smaller enterprises like libraries, resale shops, and handmade toy businesses, as well as any other business producing or selling consumer products primarily intended for children under 12, is that it will bankrupt them by requiring them to test such products for lead and phthalates at ruinous cost.  And it will.

The law contains no exceptions to the testing requirement.  The only exception that the law contains, at all, is that the Consumer Product Safety Commission may

by regulation, exclude a specific product or material from the prohibition in subsection (a) if the Commission, after notice and a hearing, determines on the basis of the best-available, objective, peer-reviewed, scientific evidence that lead in such product or material will neither–

(A) result in the absorption of any lead into the human body, taking into account normal and reasonably foreseeable use and abuse of such product by a child, including swallowing, mouthing, breaking, or other children's activities, and the aging of the product; nor

(B) have any other adverse impact on public health or safety.

Which means that the Commission can exempt products known to contain lead from a general prohibition.  But that does not mean that such products are exempt from testing requirements.  All children's products must be tested, forever.  You can read the bill yourself and make that determination.

Wonder that the Times didn't.

In other news on the CPSIA, it appears that Greenpeace, also a strong supporter of the CPSIA, is selling non-compliant Mr. Splashy Pants Infant Body Suits through CafePress.

mr-splashypantsPerhaps Greenpeace should have a word with its lawyers about this.

Thanks to Overlawyered, which has much more on the Times and its willful blindness, for the tip.

Last 5 posts by Patrick Non-White


  1. Reed says

    I've read a fair amount on this issue. What seems to be getting confused in the various commentaries I've seen is the difference between the testing requirement and the sale ban.

    As I read it, "retailers" (i.e. small toy shops, libraries, thrift stores, etc.) would not be obligated to do any testing. The testing requirement only applies to manufacturers.

    However, retailers are prohibited from selling any product that contains lead or phthalates. Since retailers have no idea whether the products on their shelves might contain lead or phthalates, they're avoiding risk by getting rid of products. On the other hand, maybe insurance would cover that (likely quite small) risk, which would mitigate the alarmism (although it might carry a slightly higher premium, depending on how the insurance companies underwrite the risk).

    When I've seen people say that this whole issue is being blown out of proportion, it's usually because such commentators are focused on the argument that there's no testing obligation on retailers, and therefore no reason for them all to fuss. They seem to be missing the no-sale prohibition.

    So, that's a long-winded way of agreeing that, yes, the NY Times missed the boat on this one.

  2. says

    I love how the Congressmen who wrote the law also wrote a letter to the CPSC saying they should make exemptions for books and apparel because the law was not intended to cover them, even though the law clearly states that exemptions have to be based on peer-reviewed scientific evidence, not Congressional say-sos.

    I think they created a monster the extent of which even they did not realize. Behold the super-geniuses who rule our land!