pageok
pageok
pageok
No More Rhinestone Cowboys and Cowgirls?

Few paid much attention when Congress passed, and President Bush signed the Consumer Product Safety Improvement Act in 2008. Indeed, it's almost certain that few who supported the law had much understanding of its likely consequences.

One person who's paid substantial attention to the CPSIA, and the havoc it's created for many industries is Overlawyered's Walter Olson. In regular posts he has noted how the law's absolutist requirements effectively bans the sale of all sorts of products even where there is no health risk. Among those particularly hard hit are sellers of second-hand clothing, furniture, and books.

The CPSIA's latest victims are rhinestones and crystals used in children's clothing. Crytals and glass beads are subject to the law because they contain trace amounts of lead, and lead can do nasty things to children if ingested and absorbed into the bloodstream. Although lead in children's projects can be a very serious concern -- as with lead paint -- it does not appear there is any evidence that tiny amounts of lead in rhinestones and crystals poses any risk, even if ingested. No matter. As reported here, the Consumer Product Safety Commission refused to grant an exemption for these items because, as several commissioners noted, the law provides no basis for such an exemption. As a conseuqence, children's apparel makers will no longer be able to use rhinestones for children under age 12, and (as I understand the law) second-hand clothing stores will not be able to sell children's clothing with rhinestones either. Overlawyered has more here.

In a statement accompanying the decision, Commissioner Nancy Nord noted that it would make sense to apply a de minimis standard in enforcing the CPSIA. One of the law's sponsors has even urged that approach. But the actual law itself is not so flexible. And so it goes.

Related Posts (on one page):

  1. The End of Vintage Kids' Books?
  2. No More Rhinestone Cowboys and Cowgirls?
troll_dc2 (mail):
So maybe there should be an amendment. But I suspect that the usual forces that keep sensible things from being done on Capital Hill, namely the absolutists on one side and the repealers on the other, will keep the law from being modified.
8.3.2009 4:56pm
Cornellian (mail):
The law may well be over-regulating but I'm not going to hold my breath waiting for a groundswell of public outrage over the inability of childrens' clothing manufacturers to include lead in their products.
8.3.2009 4:56pm
Owen H. (mail):
It's not helping that the CPSC is determined to go far beyond the actual intent of the legislation, and use it to justify banning things that they had wanted to but were previously not allowed to do so. For example, they are using it to effectively ban all powersports equipment intended for minors, such as small dirt bikes and quads, based on the fact that they have...lead/acid batteries.
8.3.2009 5:00pm
Book lover:
Cornelian,

I fear that you are right that the public will not be outraged and the law will not change. But if more people knew that clothes, books, and bikes have been pulled from shelves around the country, there might be some movement. Massive destruction of culture and wealth, all for no health benefit, and all because the rush to do "something" to "help the children" meant that no one read or understood what they were voting on.
8.3.2009 5:01pm
rick.felt:
When Bedazzlers are outlawed, only outlaws will have Bedazzlers.
8.3.2009 5:04pm
Book lover:
Owen H.,

From my study of this, and from Olson's great coverage all year, my understanding is that it's not quite as you put it. True, the Commission may be going beyond Congress's "intent," but the problem is that the plain text used is something different from a more modest "intent." The agency's hands are largely tied by statutory language that is broad as to what it covered and outlawed, but is skimpy on what the agency can give exemptions on.

The agency put out a long legal memo, written by career staffers, not the politicals, on why they could not give exemptions and be reasonable if they tried.

The statute needs amending, but that would require Congress to admit that it goofed. As betweeen destroying industries and harming children and families, or risking Waxman's and Pelosi's egos, well, the egos will win and America will lose.
8.3.2009 5:07pm
Sarah Natividad (mail) (www):
Book lover, I agree; once people know about the havoc CPSIA will wreak on the children's product market, they will be outraged. However, CPSC's stays of enforcement are delaying that. Don't get me wrong, the stays of enforcement are helping enormously. But if people got hit with high prices for bicycles, an absence of library books, blingless clothing and a sudden absence of non-mass-produced children's goods at boutiques all at once, the impact would be higher and there would be more outrage. In a way, it's a good thing though; any outrage that hit right about now would be drowned out by the health care bill anyway, just as our pleas approaching the Feb. 10 deadline were drowned out by the stimulus debate.
8.3.2009 5:08pm
Oren:

The law may well be over-regulating but I'm not going to hold my breath waiting for a groundswell of public outrage over the inability of childrens' clothing manufacturers to include lead in their products.

Indeed, it's hard to see rhinestones (or any 'bling') as being all that essential in the first place.
8.3.2009 5:15pm
Fub:
Cornellian wrote at 8.3.2009 4:56pm:
The law may well be over-regulating but I'm not going to hold my breath waiting for a groundswell of public outrage over the inability of childrens' clothing manufacturers to include lead in their products.
Of course, the outrage would not actually be for that. The real outrage, likely to be politically insignificant, will be from poor people, or just frugal people, who now cannot buy used childrens' clothing, childrens' books and the like at second hand stores.

Maybe there will be an upswing in sales of childrens' clothing, toys and books at garage sales. No doubt the nanny-state activists will lobby for more enforcement funds to bust Uncle Charley and Aunt Sally for the heinous crime of selling their childrens' outgrown clothes, toys and books.

Nanny-staters' constant refrain is "think of the children". They always omit the important qualifier, "rich".
8.3.2009 5:16pm
DangerMouse:
The statute needs amending, but that would require Congress to admit that it goofed. As betweeen destroying industries and harming children and families, or risking Waxman's and Pelosi's egos, well, the egos will win and America will lose.

You guys know nothing about legislation. Goofed? Please. The rhinestone-clothing manufacturers need to pony up $5,000 per congressman or so, and then they'll magically get an amendment. That is, if they can out-bid the eco-Nazis. That's the way Washington works. They didn't play ball before, and now they're paying the price.

Congress is wholly corrupt.
8.3.2009 5:19pm
bearing (mail) (www):
The Handmade Toy Alliance was and is paying attention. The regulatory requirements are a hardship for small business owners and crafters who sell handmade or unique toys.
8.3.2009 5:22pm
Alan Gunn (mail):

Maybe there will be an upswing in sales of childrens' clothing, toys and books at garage sales. No doubt the nanny-state activists will lobby for more enforcement funds to bust Uncle Charley and Aunt Sally for the heinous crime of selling their childrens' outgrown clothes, toys and books.

As it happens, the commission has issued a notice to the effect that the Act applies to yard sales. This is yet another example of criminalizing everything and leaving it to prosecutorial discretion to separate the sheep from the goats.

We haven't seen the worst of it yet, because the record-keeping, testing, and labeling provisions haven't gone into effect. When they do, they will outlaw all handmade children's products (because the law requires destructive testing) and, in practice, all manufacturing of new children's products by all but the largest companies, which will be able to comply with the record=keeping and testing procedures.

And yet, it's quite legal to sell a lead fishing sinker to a child, because sinkers aren't children's products. Sell a pre-1985 children's book, though, and it's jail and a $100,000 fine. This legislation passed the house with only one "no" vote (Ron Paul).
8.3.2009 5:34pm
FantasiaWHT:
Books?
8.3.2009 5:45pm
bobh (mail):
Once again showing the wisdom of Mark Twain, who so eloquently said, "Neither life, liberty, nor [particularly in this situation] property is secure while the Legislature is in session."
8.3.2009 5:48pm
Bob White (mail):
Owen:
The dirt bikes have too much lead in them; the CPSC doesn't really have any choice in the matter except to issue a stay of enforcement and hope Congress fixes the law. The amount of regulatory discretion is vanishingly small, though the CPSC has been using (exceeding, really) that as much as it can.

My "favorite" part is the "lead death" came when the kid in Minnesota swallowed a lead bauble that came attached to his mother's shoes. Mom's shoes = not a children's product, lead baubles still fine. If I hadn't already thought Congress tended towards mendaciousness and/or incompetence, the CPSIA shtuff would've convinced me.
8.3.2009 6:03pm
Alan Gunn (mail):
@ Fantasia:

Yes, books. The ink used in old children's books (both for print and, especially, for illustrations) had more lead than the trivial amounts allowed by the new law. For a while, libraries feared liability for letting children borrow old books, but that issue seems to have gone away. Some used-book stores have trashed their inventories. As it happens, it's also illegal to sell any ball-point pen with features designed particularly for children, like pictures of cartoon characters, because small amounts of lead are used in making pens. It's OK to sell children a regular pen, though (same lead content). The status of sales of regular pens to grade schools is in doubt.

Walter Olson's blog has been terrific on this. Few others seem to care. (The New York Times did run an editorial worrying about "needles fears" among small business people, and Snopes insists that it's all an urban legend, a conclusion they reach by putting out a story about the law that is in fact not true, then basically saying the whole thing is a fraud.)

Actual danger to kids has nothing to do with it. The children's dirt-bike industry is dead--even repairs aren't allowed--because some components of these bikes are made of alloys containing lead. I think it's impossible for even the most ill-mannered child to eat a dirt bike, But they're gone.
8.3.2009 6:05pm
Malvolio:
The children's dirt-bike industry is dead--even repairs aren't allowed--because some components of these bikes are made of alloys containing lead. I think it's impossible for even the most ill-mannered child to eat a dirt bike
Can we now put the "government knows what it's doing" people in the same category with Holocaust deniers and 9-11 conspiracy theorists?
8.3.2009 6:11pm
Sarah Natividad (mail) (www):
FantasiaWHT: Yes, books. Especially library books. Books published before 1985 may have too much lead in some of the inks to pass muster under CPSIA. Never mind that no case of lead poisoning has ever been traced to a book, that you'd have to literally eat at least several dozen books that were known to contain leaded ink to get any measurable amount of lead in your blood (keeping in mind that many pre-1985 books do not have any lead in them at all), that children that mouth books are rarely allowed to have old ones, and that you're more likely to be injured by someone throwing the book at you or by tripping over the book than by eating it.

And the book problem is now, not after an upcoming deadline. Books published before 1985 are right now illegal to sell or distribute, which includes libraries. Most libraries are violating this, obviously. The ALA is just absolutely sure that their fellow leftists will not throw them under the CPSIA bus and will somehow fix the law to exempt books. Not bloody likely, when Rep. Henry Waxman, the chairman of the House Energy and Commerce Committee and the only person in the entire country with the jurisdiction to reopen the issue, believes the law is bulletproof because he helped write it.

Anybody know how much it costs to buy a Congressman? 'Cuz I bet dollars to doughnuts it's cheaper than the $4 BILLION plus that have already been lost to CPSIA compliance. We should all take up a collection.
8.3.2009 6:30pm
SuperSkeptic (mail):
So maybe there should be an amendment. But I suspect that the usual forces that keep sensible things from being done on Capital Hill, namely the absolutists on one side and the repealers on the other, will keep the law from being modified.

Troll, Excuse me for getting personal, but, am I correct in my (ongoing) observation that you have a distinct affinity for the "middle ground"? If so, and this is completely unrelated to the topic but more metaphysical as it pertains to life and VC, what is it about the pro middle ground per se stance that is appealing? Is it a longing for reasonableness? what?

again I apologize, but I only ask you as one who is constantly assailed for my absolutist stances, maybe you could help me see the light...?
8.3.2009 6:31pm
ChrisTS (mail):
FUB: The real outrage, likely to be politically insignificant, will be from poor people, or just frugal people, who now cannot buy used childrens' clothing, childrens' books and the like at second hand stores.

I'm guessing you have not spent much time in second-hand stores: there are TONS of clothes available. One can find lots of fine clothing for one's children without rhinestontes or whatever.
8.3.2009 9:14pm
Sarah Natividad (mail) (www):
ChrisTS, it's not just clothing with rhinestones that's affected. It's any clothing that isn't entirely made of textile. So look at that winter coat or that pair of pants: does it have buttons? a zipper? a snap? If so, it's currently illegal to sell unless you have had it tested and know the buttons, zippers, and snaps are under the lead level.

Now a lot of stores are selling these things anyway. Either they don't know about the law, or they don't care, or they're waiting to see what happens. They'll care as soon as CPSC raids the first thrift store. Don't think they won't, either; they've said on many occasions they intend to fully enforce the law. They know they only have to raid one for the rest to police themselves.
8.3.2009 9:34pm
More Importantly . . .:
I love laws like these, for much the same reason I love most laws: we get what we tolerate, and deserve what we get.

One wonders, even marvels, at how bad things can get before the frog perks up.
8.3.2009 9:55pm
PersonFromPorlock:
As with laws forbidding any detectable amount of any carcinogen, CPSC appears to be yet another Congressional defense of homoeopathy.
8.3.2009 10:00pm
John Burgess (mail) (www):
And while there may be stays on federal action on CPSIA, there are no stays on state actions. Any state prosecutor may choose to descend on a vendor and enforce the law.

But of course there are no eager-beaver prosecutors out there, so we're all safe.
8.3.2009 11:48pm
Owen H. (mail):

The dirt bikes have too much lead in them; the CPSC doesn't really have any choice in the matter except to issue a stay of enforcement and hope Congress fixes the law. The amount of regulatory discretion is vanishingly small, though the CPSC has been using (exceeding, really) that as much as it can.



Because there is such a risk that a child will open up the battery and suck on the acid-covered lead plates inside.
8.4.2009 7:14am
Cousin Dave (mail):
"Indeed, it's hard to see rhinestones (or any 'bling') as being all that essential in the first place."

A product being non-essential does not justify the government banning it. Whatever happened to life, liberty, and the pursuit of happiness?

Besides, lead does not leach from glass. It just doesn't, not in any significant amount. If it did, thousands of people a year would be poisoned by lead crystal wine glasses and decanters.
8.4.2009 2:06pm
ChrisTS (mail):
Sarah Natividad:

Ah, THAT I had not realized. But, isn't the law framed in terms of new production [no rhinestones] and used clothing that was made before 1985? I don't think there are many kids clothes of that age still in circulation [excepting the items moms keep in the attic until the kids grow up and either take them off as keepsakes or toss them as embarrassments]. Kids are tough on clothes.

At any rate, my point was that this is unlikely to be a serious problem for the thrift industry or yard sales. That does not mean the law is not dumbly overreaching.
8.4.2009 2:22pm
Book lover:
ChrisTS,

No, it is a threat to ALL used items. The law is not framed in terms of 1985, as far as I know. Rather, the law provides strict liability (i.e., you have violated even if you didn't know) for selling or even giving any items with tiny amounts of lead. The 1985 date arises for books because the industry has confirmed that no one used ink with even trace amounts of lead after that date, so you are safe selling a 1994 book, but not a 1984 one (a nice coincidence for Big Brother), based on that fact. For rhinestones, ANY costume is now illegal to sell, even at a yard sale, because the rhinestones are over the limits.

That's why many Goodwill and other stores have been clearing out everything that they can't guarantee as lead-free -- when in doubt, throw it out. Back in February, there were many who took out winter coats, even in dead of winter. Yet another example of how this law screws most the people that the Left claims to support.
8.4.2009 5:01pm
ChrisTS (mail):
Book Lover:

I'm going to admit not being sufficently informed on the existing law to argue with anyone; certainly, imposing SL on thrift stores is not a good idea if the prohibition is 'anything that might contain lead.' That is asburdly broad; at least the specification of rhinestones and crystal makes checking inventory possible. (In general, I am against SL for just about anything.)

However, I'm not sure what the reference to 'the left' is supposed to imply. G. W. B. signed the law, after all, so it was hardly a wild leftist crusade.

It seems to me this might be more a case of legislators trying to do some good without sufficent care, attention, or foresight. Kind of across the political spectrum defects as far as I can see.
8.4.2009 9:21pm
book lover:
ChrisTS,

I condemn GW Bush for signing this awful law, and all the Republicans who voted for it, along with the Democrats. They don't escape blame from me.

I count this one more against the lefties, relatively, for two reasons:

1. It was primarily or exclusively Democrats who started and promoted the law. The GOP was too spineless to say no, but if they had, they would have faced the typical emotional and irrational commercials about protecting corporate evildoers and poisoning our children, etc. Surely you don't doubt that? So I rank lame acquiescence a bit below active promotion. (On the other hand, I sometimes blame the GOP more, because they should know better, whereas I expect little from the other folks.)

2. As Olson and others have documented, this bipartisan mistake from 2008 started to break along partisan lines in 2009 over the willingness to fix, versus resistance to fixing, the law. When Goodwill and thrift stores began throwing out clothes and books at the beginning of the year, several Republicans introduced bills to amend the law to fix its overbroad scope. Pelosi, Waxman, et al. sent out word to the Democrats not to dare admit a mistake.

So it has now become partly partisan, and those of us who want Congress to fix it are in a bind. If the numbers of Republicans willing to fix it move from 20-30 to the whole caucus, then the chances of passage seem to diminish, as it stiffens along party lines, and the Democrats become even more defensive about not admitting a problem.

So we need Democrats willing to acknowledge the fairly-undeniable (to anyone honest with half a brain) truth about this law. So far, I am unaware of any willing to step forward. Sad, isn't it?

Worse yet, the constituencies harmed most by this law include others that are typically Democratic-leaning, not just the massive impact upon lower- to middle-income families who rely on thrift stores. Small, handmade crafters, including a large contingent of culturally-lefty organic-cotton baby-clothes makers, are hosed. Libraries and schools are hosed. I can see why Democrats don't care about homeschoolers who love old books, as they probably perceive those people as evil right-wingers, and the books as old patriarchal ones that should be purged from society anyway. And they might see the ATV and motorbike riders as conservative-leaning, too, I guess. But the willingness to screw libraries, rather than admit that the nanny state went too far, is pretty amazing.
8.5.2009 12:52am
Sarah Natividad (mail) (www):
ChrisTS: No, CPSIA applies retroactively to all goods manufactured however long ago, unless they are now so antique as to be to valuable for children's use. So your 1899 copy of Alice in Wonderland-- that's safe. Your 1977 copy of Blueberries for Sal-- not so much. It's not old enough to be a collectible, see, and the average person would perceive it as being for children so it is a children's book.

At first, CPSC decided the lead provisions were retroactive (that's pretty clear in the language of the law) but the phthalates content provisions weren't; only goods manufactured after Feb. 10, 2009 had to be phthalate-free. Then less than a week before Feb. 10, NRDC won their court case (somebody cited it in one of the comment threads) and the court ruled that the phthalates bans were retroactive TOO. With just a few business days to go before the ban, stuff that had been manufactured and was on store shelves and in warehouses became valueless overnight and had to be pulled and destroyed-- there simply wasn't enough time to sell it all off in four days.

You admit your ignorance of CPSIA's far reaching provisions. I refer you to the website, http://whatisthecpsia.com , where you can find bite-size FAQ style info about CPSIA from a non-partisan perspective.
8.5.2009 10:37am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.