New Lead Law Has Some Sellers Fearing For Survival

Calvin Wright, retail director of 11 Goodwill stores in the Mountain Empire, fears he won’t be able to sell children’s products once a new lead-testing law begins Feb. 10.

Under the federal law, manufacturers must test for lead in toys, clothes, furniture, ink pens, books, backpacks, bracelets and anything else geared for children 12 years old and younger. The federal mandate is so far reaching that it affects not just children’s products made after the law kicks in, but toys, books and other products already in warehouses and on store shelves.

Depending on interpretation, the law might extend to bicycles, shoes, stuffed bears and whatever else has already been sold and is ready for resale in thrift stores and possibly even yard sales. It might impact retailers just as much as manufacturers.

The U.S. Consumer Product Safety Commission, which is tasked with clarifying the new law – the Consumer Product Safety Improvement Act or CPSIA, ruled Thursday that resale shops like Wright’s Goodwill stores “are not required” to test products for lead or phthalates. At the same time, however, the stores can’t sell anything that exceeds the new threshold levels.

“To say you don’t have to test for lead, but to say you can’t sell it if it does have lead, now how stupid is that?” Wright said.

He and other retailers said they have been blindsided by the staggering cost of ensuring that a product contains the bare minimum amount of lead required. Retailers tell the Bristol Herald Courier of estimates running from $100 to $4,000 a test, depending on the size of the object tested.

Wright said that could be too pricey to justify restocking shelves with thousands of children’s products each month.

Playing the guessing game of what to sell and what to trash, instead of hiring a testing company, might also invite disaster. The fines for skirting the new laws start at $100,000.

“Nobody wants to ... make a living and put food on the table by ignoring the law. But, I don’t want to be made an example of either,” said Dan Marshall, of toy retailer advocacy group The Handmade Toy Alliance.

It could be a matter of time, Wright said, before shelves are emptied of the very resale items often sought by families on a shoestring budget.

“What people have got to understand is, if you could not sell kid’s clothing at a reduced price, it’s going to hurt a lot of people,” he said.

Tragedy and consequences

The Consumer Product Safety Improvement Act (CPSIA), approved in August, is Congress’ response to the 2007 discoveries of lead in Chinese-made toys and the massive recalls that followed.

To protect American children from similar debacles, legislators decided that imported and domestic children’s products must be tested for lead, as well as the chemical phthalates, which is used to make plastics pliable. Both are deadly if too much is ingested.

In 2006, the U.S. Consumer Product Safety Commission recalled 300,000 heart-shaped charms that came with a line of Reebok children’s shoes. The commission linked the bracelet to the lead poisoning death of a 4-year-old Minneapolis boy, who had swallowed a piece of the bracelet.

However, those labeling CPSIA as an overreaction note that it requires tests even for items that usually lack lead, such as wooden baseball bats. As a simple piece of wood, the bat is a natural product that is exempt from testing. But, throw on the shiny surface coating and some labeling, and it suddenly must be tested.

Marshall, of the national Handmade Toy Alliance, is among those calling for changes in CPSIA.

“Like a lot of people, we were appalled by the toy recalls of 2007, and we wanted some laws enacted, but we didn’t think it would affect so many of our businesses,” said Marshall, also co-owner of Peapods Natural Toys and Baby Care in St. Paul, Minn.

Already, some companies have conceded financial defeat to the federal mandate.

Germany-based toy manufacturer Selecta Spielzeug, noted by Internet retailer Amazon.com as a favorite with eco-friendly toy buyers, has already pulled its doll houses, pull toys and other wooden products from the shelves of 1,200 U.S. stores. Selecta Spielzeug, according to Amazon,com, announced in early December that while it already tests toys to meet stringent European laws, the upcoming U.S. requirements would drive up the price of its products by 50 percent.

Publishers Weekly, a magazine devoted to the print industry, reports that some bookstores are preparing to empty shelves of children’s books before the law takes effect.

This precautionary reaction comes despite the fact that there has been only one complaint in the past 20 years of a book containing lead, Publishers Weekly reports, and that had to do with a spiral binding.

The possible fallout frightens Stephanie Seabrook, of Lebanon, Va., who home schools her children. Like typical home school families, she has more children than the average family. Secondhand, reduced-price clothes and textbooks, Seabrook said, are essentials.

“I’m a parent, so I support policies that help keep children safe, but this is a law that cannot be implemented in a cost-effective way,” Seabrook said. “Surely, this cannot be happening.”

Crime and punishment

After Feb. 10, manufacturers and not retail stores, must produce certificates stating that their products contain lead levels less than 600 parts per million. That would be the equivalent of 8.4 salt-grain-sized pieces of lead in a disposable diaper. The CPSIA limit for phthalates is the same.

By Aug. 14, the lead threshold drops to 300 parts per million, or about 4.2 salt-grain-sized pieces of lead in the same disposable diaper. Phthalates levels will also drop to the same amount. And, by 2011, the law lowers the threshold to 1.4 salt-grain-sized pieces of lead in a disposable diaper.

Although the law is aimed at manufacturers, retailers fear the $100,000 fines set for those caught selling the banned products.

Hefty fines might be bearable for large corporations, said Chris Walters, spokesman for small entrepreneur advocate National Federation of Independent Businesses. But it could spell certain doom for the small store.

The fine is “extremely high, especially for a mom and pop store trying to get by in this recession. If they slip up today, they’re not going to be around tomorrow,” Walters said.

By August, the law will require manufacturers to hire government-approved companies to test sample batches of each product. That means businesses that already test their products in-house must hire outside. And, businesses that normally do not test will have no choice.

Some business owners contacted by the Bristol Herald Courier say they’ve received price estimates ranging from several hundred dollars to several thousand dollars to test a batch for lead, and more for phthalates. Each sample batch is destroyed in the testing process.

Legalese

U.S. Rep. Rick Boucher, D-Va., who voted for the CPSIA, said Congress debated the ramification on small manufacturers when crafting the new law.

“It was believed that it would not impose a special burden on them,” Boucher told the Herald Courier.

But, the cost of testing is not the only issue. Some small entrepreneurs say they’re sure their products contain negligible amounts of lead. Instead, they’re dilemma begins with the requirement to look for lead, and questions over the possible number of products required to be tested.

For example, Debby Reed, of Elliston, Va., between Roanoke and Blacksburg, just poured $8,000 into a living-room-based cloth diaper business.

A part-time chemist at Virginia Tech, Reed hoped the diaper business would bring her some extra cash. Her Web sites, www.otterblotters.com and
www.ottertrotters.com, went online in December. And, she has just received her first orders for cloth diapers, which take nearly two hours per diaper to sew.

The manufacturer that sold her the thread does not have to test its product, because the thread is intended for adults and not children. The same goes for the manufacturer of the colored dyes Reed bought.

However, Reed, after consulting a lawyer for a better understanding of CPSIA, realized that she might be creating a product that requires testing each time she sews and dyes a diaper. According to the law, were the threads and dyes to even come with testing certificates, Reed still would have to pay for additional testing because her multicolored diaper is an entirely new product.

“If my products contained lead, I could certainly see the argument for requiring that the lead levels were acceptable, but textiles, even dyed textiles, contain virtually negligible levels of lead,” Reed said.

Even more confusing is the law’s requirement that each product be tested once. Does that mean just a single diaper needs to be tested, Reed asked, or does it require a new test for each diaper size and each new color of diaper?

Self-published children’s book author Rebekah Wilson, of Little Rock, Calif., plans to close her garage-based enterprise, Hope Chest Legacy, by Jan. 31 unless there is a drastic change in the law.

Among Wilson’s series of children’s books is a publication about sewing, which includes a needle, thread and instructions. According to her interpretation of the law, a new product is made with each reprint, and each time she buys a different brand of needle and thread to go with her books.

“With the new law, every single time I reprint a book, I will need to test one book from that batch,” Wilson wrote in an e-mail. “So the cost of printing [and testing] will need to be figured into the cost of the new book and that shifts the balance so far, my customers will not be able to purchase the books because the price will be too high.”

Reed noted that testing would cost small businesses like hers more than just money. It would also mean the loss of valuable time and products.

“Most people who work like I do make only one or two [products] at a time, but not in bulk to send off for testing,” she said. “To do so much labor and then to have it destroyed [in testing]? It’s just not a good business practice for people like me.”

Final analysis

For Seabrook, the Lebanon homeschooler, the problems businesses are about to face translates into one thing – raising a child might have just become a lot more expensive.

“I think it’s really going to push families over the deep end,” she said.

Still, an Internet search on CPSIA reveals that companies, and retail advocacy groups, are pleading with legislators for a change. Maybe even an extension on deadlines.Goodwill Industries International spokeswoman Charlene Sarmiento said her organization plans to meet with the Safety Commission to clear up some of the ambiguous language in the law and advisory opinions.

It might be that some retooling is in order, U.S. Rep. Boucher said after noting that some laws come with built-in problems that require a second look.
“This may be one of those instances,” he said.

mowens@bristolnews.com | (276) 791-0698