The CPSIA – what a long strange trip its been

The saga of the Consumer Product Safety Improvement Act (CPSIA) continues, now down a new path. A week ago on August 1st, congress moved through H.R. 2715 to address the unintended consequences of the CPSIA. After nearly three years of work to stop the growth of endangered and extinct toys from the misguided legislation that is CPSIA, it took less than a day for both branches of congress to agree on a solution. How does this occur so quickly after being stalled for years?

The collision of three cosmic bodies;

  1. the decision of the CPSC commissioners on July 13th that testing children’s products for lead to a limit of 100 ppm is “technologically feasible” which according to the CPSIA is required within 30 days (August 14th) and the limit is retroactive meaning children’s products on retail shelves and in warehouses and in transit all need to be tested, again, to a new standard.
  2. the congressional August recess which of course includes August 14th, that fateful day of the 100 ppm limit.
  3. the need to increase the debt ceiling for the US government to avoid a default.

The CPSC forced congress to act because otherwise, billions of dollars of children’s products become hazardous waste on August 14th. We have a debt ceiling needs to be increased by August 2nd, an economic catastrophe set to occur on August 14th that can only be stopped by congress, and a congress who wants to get to recess by the 5th of August. What to do?

Legislation has to be passed in a couple weeks at the same time the debt ceiling is being negotiated. No time for the usual process through committee with markups and hearings. It needs to go through the House under suspension of rules and then hotlined in the Senate through unanimous consent. That is exactly what happened on August 1st. Thankfully, through the hard work of groups like the Handmade Toy Alliance, small batch manufacturers in the US and Europe are included in H.R. 2715. We were working on relief language since January including the preceding bill, ECADA, and the amendments by representatives Pitts and Eshoo.

And what is that new path we’re going down with the CPSIA? For children’s products produced by small manufacturers and for small batch toys from Europe, H.R. 2715 places our fate back with the CPSC. To illustrate, here are three key statements from H.R. 2715:

  1. “the Commission may not require third party testing of a covered product [small batch manufacturer] by a third party conformity assessment body until the Commission has provided either an alternative testing requirement or an exemption” – this amounts to a perpetual stay of enforcement until the CPSC rules on an alternate test or an exemption. There is NO time limit on this provision.
  2. There is an exit clause for the CPSC that allows them to erase any exemption or alternate test if they think that “full compliance with subsection (a) or (b) is reasonably necessary to protect public health or safety.” This clause can be invoked by them only after a hearing.
  3. Outside of the small batch provisions above – this item applies for ALL children’s products manufacturers; “Not later than 60 days after the date of enactment of this paragraph, the Commission shall seek public comment on opportunities to reduce the cost of third party testing requirements.” There are 7 categories of cost reductions they must look at in this 60 day period and then they have one year to rule based on the feedback they get. One of these categories is “(v) The extent to which evidence of conformity with other national or international governmental standards may provide assurance of conformity to consumer product safety rules, bans, standards, or regulations applicable under this Act.” This is a path for restoring the flow of small batch toys from Europe to retailers like

The CPSIA is certainly still the law, but the possibilities for relief now rest with the CPSC commissioners, especially commissioners Tennenbaum and Adler. They must hear and understand our plight and be persuaded to rule in a way that preserves the culture of safe handmade toys in the USA and Europe. Commissioner Nord hits the nail on the head with her post “It’s time for a fresh start – will we take it?” I hope and expect to see reason and flexibility from the CPSC. Congress made it clear that they expect that to happen, as has President Obama with an executive order in July calling for agencies to “promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome”. The ball is in your court CPSC – how will you play?