Three days until National Bankruptcy Day

Posted by Kathleen Fasanella on Feb 7, 2009 at 3:47 pm / CPSIA / Trackback

I know many have been waiting for this; the short version is, nothing has changed. You are asked to visit your local legislatiors offices on National Bankruptcy Day. A well timed press release would help. Most of the activism efforts are coalescing on twitter; search for CPSIA. If you follow me, you’ll find lots of others involved, maybe local to you. Here’s another good round up of other’s activities and suggestions. Lastly, these most recent developments are being discussed in the forum.

Last Thursday and Friday, no fewer than seven documents were released by the CPSC. For our purposes, the first section of the enforcement policy has gained the most attention. This could be seen as a short term possible victory if you make sewn products with no metal or plastic parts but nothing has changed. First of all, there’s a difference between a stay, a policy and a law. A stay is a press release about a policy, what an enforcement body such as the CPSC intends to do. A stay is not a law. Other enforcement agencies -such as the Attorneys General of each state- can enforce the CPSIA law. There are three central reasons why nothing has changed.

  1. Legal challenges from special interest groups.
  2. State Attorneys Generals enforcement action
  3. Retail compliance requirements

Legal challenges:
This can still be challenged in court just as the retroactive phthalate ban was overturned (pdf) last Thursday. Aside from direct challenges to the relaxed CPSIA enforcement, it can still get worse as Walter Olson said

It should be noted that private activist and lawyer groups often shop potential cases to state AGs’ offices, and in turn are made monetary beneficiaries of resulting fines and settlements (more on California’s CEH here).

If you know your products would withstand the scrutiny of groups like this, I say go ahead and ship. [Related: Read Olson's entry for analysis of other affected industries such as electronics, libraries and resale.]

State Attorneys Generals
Even barring lawsuits from special interest groups, each state’s Attorneys General can take it upon themselves to enforce CPSIA within their borders. Previously off the radar, Connecticut’s AG has said he intends to enforce it vigorously (a contrary opinion). In addition to CT, four other states,California, Arizona, Illinois and New York (1 and 2) had filed to have their state laws take precedence over CPSIA. Illinois law could be seen as draconian; the standard there defines “child” as someone aged 16 or younger.

Retail compliance
What kind of a relationship do you have with your stores? Are you a person with a known history of integrity? Resellers have been left hanging and very wary. Some retailers won’t take your word for it; this retailer says she’s been dubious of the quality of GCCs she’s been given so she tested and found the products she was shipped don’t pass. She said

…we went ahead today and tested the products from this company. And you guessed it. The rhinestone products all failed miserably. So where does that leave us? With un-saleable items that must be destroyed and a manufacturer who is either being deceptive or ignorant themselves about their responsibilites. I’m trying not to pass judgement…but the fact we haven’t heard back from our initial inquires regarding the lab report leaves me suspicious.

Her entry is required reading so do click through for the whole saga from a retailer’s perspective.

No one can tell you what to do. The feeling of many is that considering the likely backlash, we are in no less a precarious position than before. Most (okay, all) of the retailers I’ve spoken to, are still requiring GCCs. Furthermore, they are enforcing the August standard of 300ppm.

Do as I say, not as I sue
Hey, are you in the mood for something funny? One of the special interest groups that lobbied strenuously for the law, the NRDC, is distributing a Onesie® (a trademark owned by Gerber) without GCCs. As a spokesperson said, they are exempt from CPSIA because they are not the manufacturer. In fact, the item is a private label product, produced under their auspices so they are the manufacturer of record under the law. So, if special interest groups complete with cadres of attorneys claiming NRDC is exempt and who don’t understand the law or understand they are similarly held to it, it smacks of arrogance for them to presume they can hold us accountable. Legions of you are in a similar position yet you don’t have the luxury of exemption as the NRDC claims to have. I suppose if you had lobbied for the law and helped write it as they did, you could have an exemption too. They shouldn’t get away with this. I calculated the cost of testing for this item to be at least $550. How much do you want to bet those snap sets don’t pass? I tried telling they must also comply but they still don’t get it.

18 Responses to “Three days until National Bankruptcy Day”

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Lisa DOWNTOWN JOEY
February 7th, 2009
4:07 PM

thanks for another great summary, Kathleen!

I’m no better off with these latest CPSIA stuff. I mean, how many children’s clothing companies produce clothing with no zippers, snaps and/or buttons?

This whole mess is really starting to make me wonder if I shouldn’t go after the older boys’ market. Hmmm.

With friendship,
Lisa

Renee
February 7th, 2009
5:17 PM

Agree with you that most manufacturers are not better off. Just one metal finding involved and no provision for component-level testing leaves product right back where it started, doesn’t it? No clarity for that in the enforcement policy.

I am still contemplating where the current situation leaves those who ship direct to the consumer, since there is no retailer standing in the way of sales.

Seneca Hart
February 7th, 2009
5:26 PM

Yes, thank you, yet again, for explaining everything so clearly- it is really appreciated!

Darby
February 7th, 2009
6:02 PM

My swimwear doesn’t have any metal components… but I’m still wondering about sublimation printing! Plus the fact that I’ve lost the season. Sigh. Thanks again, Kathleen, for all your brains and hard work. I definitely don’t have the brain power to keep up with this.

Molly O Designs
February 7th, 2009
8:52 PM

Great summary Kathleen! I think so many small designers think that they now have nothing to worry about. Your description and definition of the Stay is exactly what needs to be circulating in the design community to dispell all the rumors that are once again floating around.

PENultimate Leotoards
February 7th, 2009
9:30 PM

Darby,

I think you should be okay with dye sublimation. I sell a lot of products produced with Dye Sublimation. So I’ve done some investigating with one of the manufacturers, who produces my products, and also a the company, who prints the fabrics for my dye sublimation products.

The dye sublimation inks contain no lead. The process of dye sublimation causes the ink to bond with the fabric on a molecular level. And as Senator DeMint said, ““Lead isn’t going to come out of thin air.”

So I don’t see why fabrics, which have dye sublimated designs, should be considered any different that fabrics dye in traditional methods.

Now I have a question for you or anyone else.

You say your swimwear doesn’t have metal components, as my leotard also do not. I’m concerned about elastic. Does your swimwear have elastic? Do we have any reason to believe that elastic is covered in any of the releases the CPSIA made recently?

Tristan Benz
February 7th, 2009
10:13 PM

Thanks for this roundup – I’ve been waging a campaign to declare 2009 the “Year of The Recall of Totally STUPID LEGISLATION” and, along with all the rest of you have actively tried to get as many people in the loop and up to date, etc. I’ve written a rather dark piece today – but I think it needs to be said. http://tristansepinion.blogspot.com/2009/02/darkest-is-it-before-dawn-beyond-cpsia.html if interested.

Joey & Aleethea
February 8th, 2009
9:38 AM

Thanks for the links and helpful summary post of this continuing CPSIA fight/mess.

With all the misinformation out there in the web-world, and the flood gate of documents which appeared last week…holy moly your job is tough! I see your need to immediately digest all the new findings – and also quickly dispel any rumors – to nip them in the bud before they create background noise which ultimately hurts or confuses the cause.

And then just when you thought it was safe to go back into the water. Non-credible or bogus GCCs? That’s just wasteful and pure unsafe, man.

Michele
February 8th, 2009
10:45 AM

Elastic itotally enclosed inside a casing such as inside the waistband of pants should be exempt since it is unreachable by a child, right?

Eric H
February 8th, 2009
11:07 AM

No, Michele, that’s not going to cut it. It has to be a casing hard enough to withstand “normal use and abuse”. Since lead and phthalates will easily migrate through cloth, especially when wet, it doesn’t even pass the use test. And abuse? Since your children are now going to have to make do indefinitely with clothing made before Tuesday (unless the NRDC starts moving upwards from Onesies(R)), they are definitely going to wear through to the elastic waistbands.

Darby
February 8th, 2009
3:13 PM

Isn’t elastic considered a “trim,” though? Maybe we should move this to the forum. : ) This legislation takes splitting hairs to a whole new level.

MJ
February 8th, 2009
7:03 PM

How about screen printed t-shirts would they be clear for the law. The t-shirt company and ink company both say their products don’t have lead or phythlates.

Stephanie Stewart
February 8th, 2009
8:21 PM

Regarding elastic:
As I understand them, phthalates are used in plastics. Elastic feels kind of plastic-y to me, so my question was this: are the stretchy fibers used in my product at risk of being contaminated with phthalates? I am told this is a question for a materials scientist. One such chemist working in the textile industry (friend of a friend) looked at my product (off record) and advised that my product “does not appear to contain any plastic or plasticizers such as vinyl”, so there shouldn’t be any source for phthalate contamination. (FYI – My product is knit of cotton, nylon and spandex yarns and it is not made with off the shelf elastic.)

I still don’t understand elastic, or if they are all phthalate free, or if some of them (depending on their fiber make-up) might contain phthalates. Which means, I don’t know if elastic needs to be examined, industry wide, for compliance with the CPSIA phthalate ban. But it is a question that needs an answer.

Lisa DOWNTOWN JOEY
February 9th, 2009
4:21 AM

I tested my buttonhole elastic from Asheboro and it passed. I tested 4 different colors (red, rust, black, and white). Not sure of the fiber content, but just thought you should know.

HTH

With friendship,
Lisa

SD
February 9th, 2009
6:03 PM

As someone whose new children’s store (mainly mama and baby gear) has finally gotten through Health DEpt approval, codes approval, ada compliance approval, zoning approval, sign permit approval, and paid every governement agency fees at least twice and changed plumbing and moved furniture down a half an inch, etc, I’m finally ready to open, and have no idea what to do about any of this. I feel the recent change (putting off testing & compliance certificate requirements by suppliers, but still threatening me with jail if something doesn’t comply with the limits) has put me in the situation of a whole year (of the stay) now not knowing whether I’m selling things that will set me up for my downfall.

Question: How does one even test existing inventory for phtalates? Does it all have to go out to a lab? At least I can conceive of an xray gun can be used to test for lead. Of course, what does it matter (since I’d I have to test everything I get in before I sell it for the next year, how could I possibly afford it anyway?) Or am I just missing the point that going into small business in this country means the constant risk of the government fining you out of business and putting you into jail for the “negligence” of not being a rich enough company to be able to comply with all the laws?

Kathleen
February 10th, 2009
10:09 AM

It’s been rumored that special interest groups are filing a challenge to the one year stay today.

Janet Littlecrow
February 10th, 2009
10:04 PM

I was interviewed by Navajo Times newspaper a couple of weeks ago, and was interviewed by Eastern Bands Cherokee Nation in NC today. I’ve explained that the stay STILL doesn’t alleviate the problems we run into with our issues of testing all items of a child’s regalia, so I’m NOT letting up. I’m talking to Indians across the nation to make their tribes aware of the effects of this law on our culture. I’m not taking any chances with state’s AG’s, some have been known to make Indians an issue, ie: prosecuting out-of-state motorists with tribal car tags, impounding tribal vehicles for non-payment of taxes on exempt transactions, etc. It’s a legal landmine field.

I’m not taking any chances, since Indians still have MANY enemies within the government. More than a few congressional representatives are known to use expletives before the word “Indian” in conversation. So I’m changing out snaps and buttons for velcro, and won’t be using anything but cotton, polyester satin & ribbon, & acrylic yarn on my kids outfit. I can’t find any XRF testing facilities in our part of the country, and couldn’t afford $400 a day anyway. I will simply not be able to make many of our children’s outfits because of this law, because we can’t afford to test and the manufacturers aren’t going to pay for that expense either.

If the CPSIA isn’t amended reasonably and soon, I’ll be looking to organize a class action lawsuit to test the constitutionality of this law. It seriously interferes with our right to practice our cultural and religious rites, and I’m laying the groundwork for it with every interview. If it bankrupts us or kills me fighting it, it’s still worth it to me. The government will NOT do this to us again without a fight. There’s a whole lot of educated Indians running around these days, and we’re willing to fight for what we believe in, through the courts and the media. The Indian wars are NOT over, they’ve just moved into the courts.

Kate
February 11th, 2009
5:02 PM

This is going to have a serious trickle down effect. Here is a great article talking about Goodwill not being able to sell childrens’ clothing and toys for fear of liability.
http://www.kansas.com/news/story/695800.html

I am a goodwill junkie and spoke with the ladies at our local store. They explained that all kids clothing under size 12 will be eventually pulled because of the new law. They said it was “to protect the children”. Ok…

Basically poor children and small businesses will be seriously crippled by this idiotic law. I seriously doubt the “special interest” groups saw the Goodwill issue coming. I know it sounds crazy but the Goodwill issue may need to be brought up to legislators to remind them of the side effects of a bad dose of medicine. We must all remember sometimes medicine is poison when the side effects outweigh the benefits.

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