After an excessive amount of lead-based paint was discovered two years ago on popular children’s toys such as Thomas the Tank Engine, Barbie, and Dora the Explorer dolls, the ensuing national outrage led to the recall of more than 1 million toys.
The uproar also prompted Congress last August to pass the Consumer Product Safety Improvement Act (CPSIA). The law is one of the most sweeping overhauls in the history of the U.S. Consumer Product Safety Commission (CPSC), a small, independent federal agency that is supposed to identify existing and emerging product hazards and develop safety standards to address them. It’s also supposed to investigate potential hazards and recall products if necessary.
Few would argue that the law overhaul was unneeded, or that the CPSC’s work is anything less than commendable. But even the best intentions can sometimes wreak havoc, and the Act is a classic example of the law of unintended consequences. Though far from scientific, the maxim, like Murphy’s Law, is almost unfailing when a hubristic Congress acts too rashly.
In this case, the unintended consequences affect thousands of small businesses and retailers that either make or sell toys. While all of the recalled toys were made in China, the Act applies to U.S. manufacturers and toy sellers alike.
The CPSIA prohibits the sale or distribution of products for children under the age of 12 if those products contain more than 600 parts per million of lead. The new standard went into effect in February and was scheduled to be tightened to 300 parts per million on August 14.
To ensure compliance, the Act requires manufacturers to certify products meet the standards through independent lab testing. Therein lies one of the unintended consequences. The mandate is applied across all products and manufacturers regardless of any history of lead contamination.
David McCubbin is a partner in McCubbin Hosiery, a family business in Oklahoma founded by his grandfather 57 years ago. The company designs, markets, and distributes children’s and ladies hosiery to such retailers as Nordstrom, Dillard’s, Stride Rite, and Kmart, as well as hundreds of small, independent retailers.
“We are being asked to search, at considerable expense, for something that does not exist nor has been alleged to exist,” McCubbin said at a recent House Small Business Committee hearing on the Act.
Compliance is a problematic for McCubbin because no specific test exists that measures lead in textiles, he said. Labs also differ on exactly what must be tested. In all, he said his company will spend in excess of $500,000 to comply with the law this year. Meanwhile, his customers are pushing back, demanding some kind of assurance that products meet the new standard, with good reason.
Any company that makes or sells an item that is known to have more than the acceptable limit of lead can be fined up to $100,000. The only sure way to prevent that from happening is to test the product.