November 9, 2009

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By Rob Wilson

Congress Wrote the CPSIA; Only Congress Can Amend It

On October 9th I submitted an opinion piece to Product Safety Forum in response to an article written by CPSC Chairman Inez Tenenbaum.  In her article, Tenenbaum made the point that we should not believe the sensationalistic news stories that the CPSC would be levying huge fines against individuals that hold yard sales.  I responded by pointing out some inconsistencies in how the CPSC has approached the issue of yard sales, and went further to indicate that this was not, in my mind, the critical issue in any case.  For me, a more vexing problem is how the CPSIA, combined with official CPSC guidance, is keeping much needed children's products--products that are perfectly safe and NOT on the recall list--out of thrift stores. 

Following my Op-Ed, Publisher Sean Oberle felt it necessary to state that Chairman Tenenbaum was simply addressing the issue of sensationalist media stories and "the fact that she did not choose to address other CPSIA issues in a particular article does not mean she is unaware of, disinterested in or not planning to address them."  I want to make it clear that I am not in a position to know what Chairman Tenenbaum is or is not interested in, or what she plans to address, only what has actually been publicly addressed and the discrepancies therein.  I have every hope that she is very aware and concerned about the widespread disappearance of non-recalled children's products from thrift stores due to the CPSIA, and the guidelines issued by the CPSC.  Likewise, I hope and trust she is aware and concerned about the serious impact this is having on the children's industry as a whole.

The opinions expressed in this piece are the author's and do not necessarily represent those of Product Safety Forum. Product Safety Forum is a free service of Product Safety Letter. Its mission is twofold: to promote frank and open airing of product safety issues and to provide advice and guidance from top experts in the field. Do you have an idea or article you think would make a great piece for Product Safety Forum, including commentary or reaction to this one? Then email Publisher Sean Oberle to discuss it.. To read more stories, see the archives

But this is not the whole story.  Since the beginning, I, along with many of my associates, have been both sympathetic and supportive of the herculean task given to the CPSC by Congress to make sense of the CPSIA, and somehow find ways to implement it in ways that will not wipe out our industry.  To the extent they have done this, we have applauded; where we have felt they have fallen short, we have likewise expressed our consternation.  Nevertheless, we are fully aware that the CPSC did not write this law, they just have the misfortune having been given the responsibility for interpretation and enforcement of this ill-thought out law.  Or do they?

Unfortunately, it has become abundantly clear that the CPSC does not have the power to correct the inherent problems of this law, nor do they seem to have the power or the will to interpret it in ways that can restore common sense and risk assessment to issues of children's product safety.  I cite the hearing on brass bushings as a case in point, in which brass has essentially been banned, not out of any actual safety risks, but due to the seeming lack of flexibility given the CPSC to interpret and apply this law.

We have begun to see the CPSC publicly acknowledge shortcomings of the CPSIA, most recently in statements by Commissioners Nancy Nord and Anne Northup.  In particular Commissioner Northup stated "we will have to depend on Congress to reasonably address the unintended consequences of the CPSIA. Unless they act soon, more small businesses will be forced to shut down."  I reiterate my call for the CPSC as an agency to officially call on Congress to amend this law before it is too late.

Rob Wilson is vice president of Challenge & Fun, an importer of natural toys, founder of CPSIA-Central, and a board member of the Handmade Toy Alliance. Contact him at rob@challengeandfun.com