Yesterday (March 11, 2009) the CPSC published a final rule covering lead content in toys designed for children aged 12 and younger that virtually slams the door on industry efforts to avoid the foolish ban on kid’s quads, motorcycles and related parts, accessories and apparel items. The ban on kids' toys started Feb. 10.
It all hinges on the three-letter word “any” that appears twice in the wide-ranging Consumer Product Safety Improvement Act (CPSIA) that became law last August.
The CPSIA was written to protect young children from eating small toys and jewelry that contained excessive amounts of lead, more than 600 parts per million. Good idea, but poor execution. It’s in those little detail thingees.
In its excitement and enthusiasm, Congress got carried away and extended the safety rules to everything from clothing and cribs to ATVs and motorcycles. Sen. Amy Klobuchar (D-Minn.) was one of the leading proponents of the bill.
“It was a big bill,” she told me recently, “that had a number of things that people wanted in the consumer area. Yes, it was primarily about toys that could be ingested, but it also included other products that didn’t include lead, like cribs. In general, it’s about products that had been hurting kids.
“There was a reason… all the products that were coming in from China. That’s what it was all about.”
Unfortunately, Congress wrote that little word “any” in two places that the CPSC now says ties its hands; it can’t really grant any exclusions because of the way Congress wrote the law. The only recourse? Rewrite the law, says the CPSC.
Congress, of course, says the law is fine and that the CPSC should just grant reasonable exclusions and get on with it. Oh, and as long as we’re at it, say some of the Democrats on Capitol Hill, perhaps we should just dump Acting CPSC Chairperson Nancy Nord, a Republican, at the same time because she’s not getting the job done. Sen. Henry Waxman (D —Calif.) has called on President Obama to replace Nord.
How many agendas are we working on here, guys?
In the new rule covering exclusions, there are two references that limit CPSC flexibility, the agency says. Here they are:
The law is very narrowly written, a CPSC spokesman told me. If there is lead absorption into the body, blood lead levels will increase, but whether that has significance from a health standpoint remains a question.
However the addition of the word “any” made it explicit that Congress had already made this risk assessment and legislated that ANY absorption of lead, no matter how insignificant, would be unacceptable, he said.
This potential problem was brought up when the bill was in conference committee last summer, he told me, but the agency’s input was ignored.
In voting for the latest rule, CPSC Commissioner Thomas Moore noted that it’s possible to avoid the ban in this case:
“Children’s products with accessible lead in excess of the lead limit but which a child’s contact with the lead results in neither any absorption of the lead into the child’s body nor has any other adverse impact on public healthy or safety (is) not covered by the ban.”
Now, that’s a pretty tough case to make and goes well beyond the 600 ppm level identified elsewhere in the law.
And, concludes Moore: “As presently written, I find it impossible not to conclude that Congress intended this to be a very narrowly construed exception that does not allow for any absorption of lead into a child’s body.”
How can the industry respond to that argument?
“There seems to be no discretion (for exclusions) if there is any lead exposure,” says Paul Vitrano, general counsel for the Motorcycle Industry Council (MIC). “We have to concede there is some exposure.”
Vitrano told me that industry representatives now are focusing on Congress to amend the exclusion provision of the law to give the CPSC what it needs. In my conversation with Sen. Klobuchar, she made it clear that wasn’t a good option because of the difficulty of getting a bill through Congress.And, she said, it wasn’t necessary anyway, if the CPSC did its job.
Meanwhile, efforts continue to present the industry’s case to Congress. Missouri State Rep. Tom Self has added email letters to his website, www.tomself.com, that individuals can easily send to their representatives in Washington. Nearly 73,000 emails were sent as of Monday. The MIC also has placed letters on its website at www.mic.org.
Self also embarked last week on a 10-day tour to create awareness of the lead content problem with local news media. During the event’s kick-off press conference, the MIC’s Vitrano noted: “Now the industry is caught in the middle of a fight between Congress and the CPSC. Congress gave the CPSC the power to grant merited, common-sense exclusions, for products such as ATVs and off-highway motorcycles, from the lead standards.
“We urge the CPSC to grant our requests for exclusions. If the CPSC believes its hands are tied because of the way the legislation was written, Congress needs to amend the law to restore common sense and make exclusions available for youth ATVs and dirt bikes.” And, says, Vitrano: “We are asking Congress and the CPSC to end this ban— NOW.”
I couldn’t have said it better myself.