October 19, 2009

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By Randy Swart

Rob Wilson's October 9 article in Product Safety Forum is titled Consumer Confusion Comes From CPSC Guidance, Not the Media. I would see the CPSC guidance in a different light.

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Mr. Wilson reads Chairman Tenenbaum's statements and the CPSC guidance for retailers as a lawyer would. In practical fact, any parent thinking about selling toys in a yard sale in Tulsa knows from the Chairman's statement that they have zero risk of a raid by Commission agents. As all readers of Product Safety Letter know, CPSC is struggling to maintain any level of enforcement at all, and will not be going after yard salers! In fact, they would have no more idea than the parent which old toys contained phthalates or had lead in the paint, and would have to test to establish that. Finding recalled product would be looking for needles in haystacks. It just will not happen. But I don't think you can reasonably expect the Commission to publish anything that explicitly says that, since they have a responsibility under the legislation to enforce the law.

That does not address the question of the ethical standards of a parent or retailer who sells a toy for use by another child that might have been recalled, have phthalates in chewing areas, or have lead in the paint. We know about the lead and phthalate hazards now, and we know that we were far too complacent about it in the past. We have no business passing on toys that might be dangerous. It is not fair to blame the Commission or Congress for not grandfathering the dangerous toys in our market. We need to get them out of circulation, and that fact is independent from the enforcement of the CPSIA legislation. It will impose a hardship on some retailers, but that pales in comparison to the alternative--to tolerate the continuation of poisoning our children for years to come until those toys are worn out. The chemical detoxification of America is just beginning, and this is one of the early skirmishes in a long war. Manufacturers and retailers will inevitably suffer some collateral damage along the way, particularly if they do nothing until the bans are announced.

Culling out recalled products adds another level of processing for the small retailer of reused products, but it can be done by just checking against a list. This is the only chance to catch dangerous defective products before they are passed on to another unsuspecting user. That should not add much to the final cost to the consumer. It would not be necessary if manufacturers got a higher percentage of their recalled products back. We can't blame that on the Commission.

In fact, any threat of CPSC retribution is probably less real than the possibility of being sued by the buyer if someone is injured by a recalled product. That should give the yard saler pause if nothing else does. Many people trash some items that they would have sold or Freecycled because of that risk.

We need to keep our perspective here. The Commission is doing a fine job under very difficult circumstances. Safety advocates need to make sure that message gets out.

Randy Swart is Director of the Bicycle Helmet Safety Institute. Contact him at (703) 486-0100, randy@helmets.org.