Getting the lead out

by Anne Fitten Glenn in Vol. 15 / Iss. 28 on 02/04/2009

Related topics: public health, lead testing

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New lead-testing rules due to take effect Feb. 10 have local booksellers, toy retailers, crafters and even libraries struggling to understand what the regulations mean for them.

Ruled out?: Leslie Hawkins, owner of Spellbound Children’s Bookshop on Wall Street in downtown Asheville, worries that new lead-testing regulations could her force her out of business. Photo by Jason Sandford

The federal Consumer Product Safety Improvement Act imposes stringent new lead-testing rules on all products aimed primarily at children 12 and under. The regulations affect businesses that sell such items, as well as libraries that lend out books to children. But the new law’s impact is ambiguous, especially concerning children’s books, leaving local booksellers, libraries and even schools scrambling to interpret its meaning and figure out how to comply—and how to pay for it.

The regulations were signed into law last August in response to the massive recalls the previous year involving mostly Chinese-made toys containing lead. The new rules require that all such books, toys and handmade items be tested for lead, regardless of where they’re manufactured.

“The act covers anything a baby or child touches, lies on, eats from or plays with,” says Asheville retailer Gary Green, who owns The Toy Box on Merrimon Avenue.

But as is so often the case in the legal arena, the devil seems to be in the details. Although used toys and books don’t need to be tested, for example, resale shops are subject to penalties if it’s determined that they’ve sold items that don’t meet the standards. Further complicating matters is the vagueness of the law, the lack of clear guidelines and the rapidly changing nature of the government’s pronouncements—especially in the face of a fast-approaching compliance deadline.

“The wording of the act as it stands now is so vague that many are interpreting it to mean that bookstores and libraries would remove any books for children 12 and under that don’t have publisher documentation that they’ve met these standards,” says Leslie Hawkins, owner of Spellbound Children’s Bookshop in downtown Asheville. “It’s a matter of being able to prove retroactively that existing stock meets the standards, so we aren’t opening ourselves up to potential liability.”

Requirements change daily

Attempting to clarify the situation, the Consumer Product Safety Commission has been issuing media releases in advance of the Feb. 10 deadline. In a Jan. 30 release, the commission granted a one-year stay of testing and certification requirements while they review the law’s provisions.

The release says that crafters, garment manufacturers and toy makers “will not need to issue certificates based on testing of their products until additional decisions are issued by the commission. However, all businesses, including, but not limited to, handmade toy and apparel makers, crafters and home-based small businesses, must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalates provisions of the CPSIA.”

It’s still not clear, however, whether local crafters and retailers could face fines for inadvertently selling a product that doesn’t meet the new rules—or, for that matter, whether or not children’s books are included.

Neither the commission nor Rep. Heath Shuler‘s office returned calls requesting comment.

What do we do now?

The new law requires that all children’s products sold in this country, regardless of where they’re manufactured, be proven to have lead levels less than 600 parts per million. The act also covers the use of phthalates, a class of chemicals used to soften plastic and for many other purposes.

And starting in August, the law calls for raising the bar substantially higher: All children’s products would have to be tested by a third-party laboratory to ensure much lower lead levels (less than 300 ppm), though it’s unclear how this meshes with the testing stay. In 2011, the acceptable lead level would drop to 100 ppm, if this proves technologically feasible. At some point, manufacturers would be required to issue certificates of compliance assuring retailers that the products in question satisfy the legal requirements.

Until the Jan. 30 announcement, many retailers had believed they’d have to test their existing stock themselves, perhaps using a hand-held XRF device, unless they had proof that manufacturers had tested those products for compliance.

According to Hawkins, book publishers have been scrambling to provide documentation to retailers on books already in print, as well as to put in place new testing and documentation policies for forthcoming books.

“Surely the government didn’t mean for us all to throw out our stock,” she says.

American Library Association representatives met with the commission in Washington, D.C., recently to try to discern what the new law means for libraries.

In a statement on the library association’s Web site, President Jim Rettig said: “It is apparent that the CPSC does not fully understand the ramifications this law will have for libraries—and for children—if libraries are not granted an exemption. At this point, we are advising libraries not to take drastic action, such as removing or destroying books, as we continue to hope this matter will be rectified and that the attention will be paid to the products that pose a true threat to children. However, we find it disappointing and shameful that a government agency would continue to leave this matter unsettled when clearly the outcome would virtually shut down our nation’s school and public libraries.”

Small manufacturers at risk

The commission’s decision to delay requiring proof of compliance appears to give crafters some breathing room, though they’re still concerned about what the new law might mean for them in the long term. Under the regulations, crafters are considered manufacturers and, because of the unique nature of their products, it appears that as of Feb. 10, 2010, they would have to test every part of every individual item they make. That cost could put many of them out of business.

Amy Kett of Asheville, who sells her handmade children’s clothing and toys through her Etsy store, Crankypants, says she’s been researching the cost of testing her products.

“The cost is per component in the item, so if we use one of my monster bibs as an example, I have the cotton print, red terry backing, white terry eyes, black terry pupils, resin snap, cotton thread and logo tag for a total of seven components. The lowest estimate I’ve heard is $75 per component, so it would cost me a minimum of $525 for that bib. Add phthalate testing, which is another $200, and you have a grand total of $725 for that one bib,” she says.

Asheville resident Liz Stiglets, who sells children’s costumes and toys online via an Etsy shop called Cozyblue, says, “Because my operation is so small-scale, and since I focus primarily on kids’ items, I will just have to close shop.”

“I have the option of changing my focus to more home décor, but what I love to create are kids’ items. There is simply no way I can have my items tested. The price of testing is too high—more than the item is worth.”

Arden resident Jesseca Bellemare, who owns The Modern Baby Co., predicts, “The cost of testing will cause me to dramatically reduce my selection as well as raise my prices.”

Cost aside, a very real question is where manufacturers could hope to get their products tested. Although UNCA’s Lead Prevention Program has the necessary equipment, it’s not currently accredited by the commission. According to the commission’s Web site, there are only 23 accredited testing labs in the U.S.—none of them in North Carolina, says Kett—and not all of them are accredited for all types of required testing. That raises the prospect of massive backlogs, though the one-year postponement may give the commission time to accredit more labs. Yet another concern is the possibility of large fines for those found to be out of compliance once the commission begins enforcing the law.

Local crafters agree that while children’s safety is paramount, the comprehensive testing the new law requires is overwhelming.

“We are not against stricter legislation and testing,” notes Bellemare. “It just needs to be practical and feasible for small businesses.”

Stiglets, meanwhile, calls the act “pretty depressing and discouraging. Handmade items have been a part of American culture forever. There are so many of us trying to preserve it, pass it along to our children—but this new regulation, though it is well-meaning, is going to wipe out small-scale designers and crafters.”

And while Green notes that “most of the manufacturers that we do business with have been testing for years,” he says the more extensive testing the law will require could threaten the long-term viability of small American toy manufacturers such as Maple Landmark, which makes wooden train cars sold at The Toy Box.

“Lots of small companies that make small quantities of high-quality toys won’t be able to survive,” Green predicts. “We want to make sure all our toys are as safe as possible, as we always have. But the companies that are going to survive this are the big manufacturers who can afford to spend $1,000 on testing and whose products are mostly made overseas. So much for our support for American manufacturers.”

Ironically, it was the large manufacturers contracting with Chinese factories whose products prompted the new rules.

Local retailers and crafters are monitoring the fast-changing situation closely, signing petitions and communicating with legislators and the Consumer Product Safety Commission.

“There’s an effort to repeal the law and come up with a new law that makes more sense,” says Green. “In the long run, I hope it will happen, but in the short run, it doesn’t look like it will.”

[Anne Fitten Glenn writes the Edgy Mama column for Xpress. She can be reached at .(JavaScript must be enabled to view this email address).]