Toys, Lead, and Unintended Consequences

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This piece first appeared on NationalReview.com on September 14, 2009:

With enforcement of the misleadingly named Consumer Product Safety Improvement Act (CPSIA) now fully in place, the death knell has sounded for many makers and purveyors of small-batch, custom-made, and handmade products aimed at children age 12 and younger. The sad irony is that the economic damage so widely and cavalierly imposed on already struggling small businesses is unnecessary. The stringent lead levels allowed by the law will prevent exactlyzero cases of childhood lead poisoning.

When Congress pushed through this misguided piece of legislation last year, few foresaw the unintended consequences now apparent. Some small-business owners and niche-market manufacturers of children s products did utter Cassandra-like warnings, which fell on the deaf ears of the Democrats shepherding the bill to its enactment. By the time the debate was over, the stampede to pass the law included Republicans as well, and President Bush signed it. No one could afford to be seen as opposed to protecting children s health.

No child has been shown to have suffered ill effects from exposure to the children s products -- toys, clothing, jewelry, books -- that will now be forced to comply with the new regulations. We already had laws on the books protecting against even potentially harmful lead products. The Chinese toys that led to the current hysteria were already in violation of those statutes; the CPSIA is a measure meant to show we won t be fooled again.

The fear and anger over the contaminated imports provoked this precautionary overreaction among activists and Congress. Unfortunately, American consumers will now be unable to get used children s books, most costume jewelry, many toys, and a diverse roster of products that might contain more lead than the minuscule levels that will be tolerated. The expense of testing each and every part of every kids product and documenting all those will be unbearable for numerous small businesses.

Meanwhile, the biggest toymakers will have no problem dealing with the added expenses of compliance. Indeed, in a bizarre but illustrative twist, only last week the Consumer Product Safety Commission (CPSC) gave Mattel leave to use its own testing labs to certify safe lead levels in their toys. Yet it was Mattel s toys imported from China that led to the CPSIA in the first place. The CPSC s decision seems like a gift to the biggest toymaker, whose smaller competitors will be priced out of business trying to test and document their products safety to the satisfaction of the CPSC.

The law gives no leeway for a reasoned, scientific analysis of the real risk to children posed by the lead in products. Even Obama-appointed CPSC commissioner Inez Tennenbaum admitted that she would have done it differently by using risk assessment -- dealing more rationally, for instance, with those products whose lead was not accessible by any known exposure, including by eating. But the simple text of the law forbids that approach, and instead goes down the path of unscientific, zero-tolerance hysteria.

Nonetheless, despite the vehement objections of consumers and makers of children s products, those responsible for this abhorrent bill refuse to consider modifying it. They should be ashamed.

Recently, one of my colleagues pointed out that the lead levels in the White House organic garden are clearly above the limits deemed acceptable for toymakers under the CPSIA. Yet the White House said (reasonably enough) that the vegetable patch is nothing to worry about. I only wish it were that simple for the small business going broke trying to comply with the CPSIA, and for the parents whose disappointed children will not understand what they are being protected from.