pageok
pageok
pageok
Is Your Garage Sale Legal?

McClatchy reports:

If you're planning a garage sale or organizing a church bazaar, you'd best beware: You could be breaking a new federal law. As part of a campaign called Resale Roundup, the federal government is cracking down on the secondhand sales of dangerous and defective products.

The initiative, which targets toys and other products for children, enforces a new provision that makes it a crime to resell anything that's been recalled by its manufacturer.

Steve:
The CPSIA is a horribly-drafted law, but nevertheless I'm going to wait for the garage-sale police to come by my house before I start to believe in the entire parade of horribles.

The article seems to focus on the obligation not to resell toys and other products that have been recalled for safety reasons - even at garage sales and the like. Well you know what, that sounds like something I would agree with!
8.22.2009 10:58am
Joe L. (mail):
Another example of Congress federalizing every problem it can.
8.22.2009 11:32am
J. Aldridge:
The governments twisted idea of regulating commerce no doubt.
8.22.2009 11:33am
Nick B (mail):
re: Steve
Well if the government can regulate what toys you sell at a garage sale, what can't they do?

On a related note, how is this even vaguely constitutional?
Nick
8.22.2009 11:37am
JKB:
This seems disingenuous since the ban affects more than "recalled" products. Any product the reseller can't certify as meeting the lead and phthalates standards are also illegal to resale. Yet the CPSC seems to be unwilling to publicize that since it would rightfully lead to blowback. Look at the unclear language at the CPSC website for resellers:

Selling recalled products is now unlawful. The law sets strict limits for lead in paint and for lead content. Additionally, three types of phthalates are permanently prohibited in certain toys and child care articles and three other phthalates are prohibited on an interim basis in certain child care articles and children's product that can be placed in a child's mouth.
8.22.2009 11:52am
JKB:
This is also an example of government stupidity or savvy manipulation by industry. Mattel and other large toy companies import toys from China with dangerous levels of lead, etc. This prompts Congress to pass a law ensuring only large toy companies like Mattel can remain in the toy business since compliance costs are enormous unless you're doing large volume and can support a large compliance department.
8.22.2009 11:57am
MCM (mail):
On a related note, how is this even vaguely constitutional?


The Court answered that question 70 years ago in Wickard v. Filburn. I suppose that doesn't stop anyone from expressing surprise.
8.22.2009 12:08pm
_quodlibet_:
>>634910

The article seems to focus on the obligation not to resell toys and other products that have been recalled for safety reasons - even at garage sales and the like. Well you know what, that sounds like something I would agree with!

Why? Do you feel incapable of determining for yourself whether alleged safety hazards are genuine hazards for your own children? It is for parents, not gov't bureaucrats, who should have the final say in whether a toy is suitable for their children. (E.g., loose small parts might pose a choking hazard to toddlers but not to older children. And other alleged 'safety hazards' might be pure hogwash.)
8.22.2009 12:09pm
MCM (mail):
Do you feel incapable of determining for yourself whether alleged safety hazards are genuine hazards for your own children?


Wait, you think you aren't? Be honest: you have no idea how much lead is in the toys in question, how much lead that'll pass on to your child, over what time period it'll do so, how much lead it takes to negatively affect your child, and whether or not that effect is permanent.

I don't disagree that it should be the parent's choice, but let's not pretend that consumers don't operate in a haze of ignorance 99% of the time.
8.22.2009 12:27pm
Steve:
Do you feel incapable of determining for yourself whether alleged safety hazards are genuine hazards for your own children?

Yeah, I'd rather not take the chance. If a product has been recalled, there are plenty of other products I can get for my kids instead.

An awful lot of product defects are non-obvious. I probably wouldn't even be able to assess whether they're a concern in the first place if some "government bureaucrat" hadn't flagged the problem.
8.22.2009 12:32pm
Fub:
Steve wrote at 8.22.2009 10:58am:
The CPSIA is a horribly-drafted law, but nevertheless I'm going to wait for the garage-sale police to come by my house before I start to believe in the entire parade of horribles.
Then, of course, it will be later than too late.

Commenters in recent VC have mentioned CSPIA's ill effects. Even at the very liberal Crooked Timber blog these posts (Toy Story, Toy Story II) indicate that the law and its enforcers are at least problematic. The posts and comments are fairly link-rich to groups that are raising the alarm.
8.22.2009 12:44pm
Chris Fotos (mail):
8.22.2009 12:59pm
J. Aldridge:
The Court answered that question 70 years ago in Wickard v. Filburn.

You mean the "Roosevelt court" had.
8.22.2009 1:37pm
Chico's Bail Bonds (mail):
Do you feel incapable of determining for yourself whether alleged safety hazards are genuine hazards for your own children? It is for parents, not gov't bureaucrats, who should have the final say in whether a toy is suitable for their children.

Yes, I do. I cannot determine the lead content of a toy by looking at the box. Nor do I buy toys and subject them to laboratory testing before I give them to a kid. Fortunately, I live in a country with a functioning government that has "bureaucrats" who can do that for me. There is one party in my country that says "the government doesn't work, and we're here to prove it," but that party is out of power now.
8.22.2009 1:46pm
Mr L (mail):
The CPSIA is a horribly-drafted law, but nevertheless I'm going to wait for the garage-sale police to come by my house before I start to believe in the entire parade of horribles.

Don't worry, it's extremely unlikely that they'll bother to enforce this against garage sales...unless, of course, they need a reason to arrest someone.
8.22.2009 1:53pm
David M. Nieporent (www):
The CPSIA is a horribly-drafted law, but nevertheless I'm going to wait for the garage-sale police to come by my house before I start to believe in the entire parade of horribles.
Yes; also, I don't use crack, so why should I care about the crack-cocaine sentencing disparity?
8.22.2009 1:58pm
SuperSkeptic (mail):
Goodness, repeated references to the-case-that-shall-not-be-named; I'm nauseous.


Don't worry, it's extremely unlikely that they'll bother to enforce this against garage sales...unless, of course, they need a reason to arrest someone.

Very true, classically skeptical statement. Kudos.

Thankfully, garage sales in my family are only something we talk about doing, but they very rarely happen.
8.22.2009 2:02pm
SuperSkeptic (mail):
Yes; also, I don't use crack, so why should I care about the crack-cocaine sentencing disparity?

Crack, another excuse to arrest someone...

I'd prefer to wait for a non-economic crime - maybe one with a victim - before a resort to pre-emptive captivity, but that's just me...
8.22.2009 2:05pm
David M. Nieporent (www):
Yes, I do. I cannot determine the lead content of a toy by looking at the box.
Why would you need to? You realize that these "harms" are about as real as all those terrorist alerts, right? Have you ever seen a child die from licking a bicycle?
8.22.2009 2:16pm
einhverfr (mail) (www):
MCM:

It seems to me though that enforcement against garage sales might well be Unconstitutional.

I would note that just because a law has Unconstitutional applications doesn't make it facially Unconstitutional. Thus as-applied challenges might be sufficient.
8.22.2009 2:26pm
Off Kilter (mail):
Steve: "An awful lot of product defects are non-obvious. I probably wouldn't even be able to assess whether they're a concern in the first place if some "government bureaucrat" hadn't flagged the problem."

Fortunately, a new toy for Steve's child is coming on market soon. Called, "The Padded Cell", this lovely toy allows hours of pleasure as the child sits in it unable to harm herself in any manner conceivable.

Unable also to get out...
8.22.2009 2:34pm
Chico's Bail Bonds (mail):
Have you ever seen a child die from licking a bicycle?

No, I haven't. Nor have I ever seen a lead bicycle.
8.22.2009 2:42pm
Steve:
Fortunately, a new toy for Steve's child is coming on market soon. Called, "The Padded Cell", this lovely toy allows hours of pleasure as the child sits in it unable to harm herself in any manner conceivable.

You're surely a much better parent than me. But I'll continue, in my naive way, to prefer buying my kids toys that haven't been recalled by the manufacturer.
8.22.2009 2:48pm
GEORGE LARSON (mail):
I believe the bike problem is caused by a small amount of lead in the Schrader valve of the inner tube of some bikes. I do not believe the lead is a danger to any kid riding a bike. Could improper disposal of the inner tube contaminate soil or ground water?
8.22.2009 2:52pm
Anonperson (mail):

Why would you need to? You realize that these "harms" are about as real as all those terrorist alerts, right? Have you ever seen a child die from licking a bicycle?


Which harms? It's one thing to say that most of the recent lead "scares" are overblown.

It's quite another to say that no consumer should ever worry about product safety, and that all regulations and lawsuits about product safety should be eliminated.

I realize that you probably don't mean the above, but it's not clear exactly what you do mean.
8.22.2009 2:53pm
David M. Nieporent (www):
Have you ever seen a child die from licking a bicycle?

No, I haven't. Nor have I ever seen a lead bicycle.
Well, you need to pay more attention to the CPSIA, because it affects bicycles, too.
8.22.2009 3:03pm
TJ:
The tree of liberty is parched.
8.22.2009 3:16pm
arbitraryaardvark (mail) (www):
Is there a mens rea element? Or is this a strict liability crime?
8.22.2009 3:34pm
Chico's Bail Bonds (mail):
Well, you need to pay more attention to the CPSIA, because it affects bicycles, too.

I don't need to pay more attention because, according to the article you linked to, CPSIA has them covered too. Score one for big government.

Galt's Gulch residents: enjoy researching the metal composition of a bike before buying it for your child or reading through the industry sponsored literature on how great lead is for their health.
8.22.2009 3:37pm
Fedya (www):
I suppose the Sunday Song Lyrics would have to come from Lawn Dart":

"A kid was pegged in the head with a lawn dart,
And now they're off the shelves at the K-Mart...."
8.22.2009 3:43pm
Ryan Waxx (mail):

Galt's Gulch residents: enjoy researching the metal composition of a bike before buying it for your child or reading through the industry sponsored literature on how great lead is for their health.


Any links to that "industry sponsored literature on how great lead is for their health." ?
8.22.2009 3:47pm
JohnV:
You do not need to sell things to violate the CPSIA. Giving homemade toys or clothing to a relative's child is a violation.

For instance making a folded paper airplane and handing it to your grandchild is now a crime. The CPSIA demands that after you make the folded paper airplane you submit it for testing at a certified laboratory. Unfortunately, the testing is destructive so your grandchild won't get to play with it.
8.22.2009 3:48pm
Mark N. (www):
Odd that, as far as I can tell, almost nobody from either party objected to this bill. Final passage was 424-1 in the House; 89-3 in the Senate. Was cosponsored by a bipartisan list of 106 Congressmen; signed by George W. Bush; voted against by almost nobody. Is there really that strong a bipartisan consensus that we must regulate garage sales, or did they again fail to read the bill?
8.22.2009 3:59pm
JakeCollins:
Most people on this thread seem to believe that you should be able to sell toys that kill your neighbor's children, and that any consumer can magically "tell" when a toy is dangerous.
Are you all insane?
8.22.2009 4:04pm
Fub:
These two CPSC FAQs may clarify some questions in this discussion.

General CSPC FAQ, containing links to specific FAQs such as Section 101: Children's Products Containing Lead; Lead Paint Rule.

Note that these FAQs are, to quote directly from the CSPC,
... unofficial descriptions and interpretations of various features of CPSIA and do not replace or supersede the statutory requirements of the new legislation. These FAQs were prepared by CPSC staff, have not been reviewed or approved by, and may not necessarily reflect the views of, the Commission. Some FAQs may be subject to change based on Commission action.
(emphasis added)
8.22.2009 4:15pm
Chico's Bail Bonds (mail):
Any links to that "industry sponsored literature on how great lead is for their health." ?

No that part was sarcasm. Cf. ExxonSecrets.org
8.22.2009 4:36pm
Alexia:
Most people on this thread seem to believe that you should be able to sell toys that kill your neighbor's children, and that any consumer can magically "tell" when a toy is dangerous. Are you all insane?

And they accuse the right-wingers of fear-mongering? Apparently you haven't read the law. No children have been injured by the items they're recalling. None.

The law is too complicated for me to explain it to you, but you're so far off base you look ignorant. It recalls millions of items that aren't harmful.

Do honestly believe that corporate america wants to poison and kill children? That's also insane, if I do say so.

This law wiped out handmade toys. The safety standards they set are admittedly arbitrary. Ironically, this harms the "all-natural and local" crowd more than anything in recent history.

Even India is looking better than America these days.
8.22.2009 4:46pm
Guest056 (mail):
So the resale of presumptively dangerous products is banned, on the theory that presumptively dangerous products are presumptively dangerous, and that the federal government has authority to regulate the sale of such.

This is news?

Oh, right: "For instance making a folded paper airplane and handing it to your grandchild is now a crime." This has stunning implications yet unfortunately no apparent support. But of such threads our discourse is made.
8.22.2009 4:46pm
The Roger (mail):
Looks like more Republican misinformation, to me....
8.22.2009 4:54pm
iawai (mail):
Not that I can tell myself if a toy at a garage sale is safe, but I'd much rather leave the regulation and enforcement of safety standards on manufactured toys with consumer groups supported by people who want to know what is safe - instead of a monopolistic government agency controlled and paid for by the same industry being regulated.

I'd like to choose my level of 'safety', maybe exposing my kids to steel cross bars on a go cart or to a small part on a little-tykes toy - why should that be a violation of federal law if I willfully buy one of these things from either my neighbor or a contracted retailer?
8.22.2009 5:01pm
Chico's Bail Bonds (mail):
I'd like to choose my level of 'safety', maybe exposing my kids to steel cross bars on a go cart or to a small part on a little-tykes toy - why should that be a violation of federal law if I willfully buy one of these things from either my neighbor or a contracted retailer?

Because your child shouldn't have to choke to death on a small part so that you can have freedom from evil regulation.
8.22.2009 5:13pm
Spanky von Spankowitz:
Is there really that strong a bipartisan consensus that we must regulate garage sales, or did they again fail to read the bill?

That's the truly sad part- no one bothered to read and understand the bill because what was in it was irrelevant. The bill was designed to "protect the children" therefore it was a good bill. All of its other impacts were irrelevant. Protecting the children is/was paramount.

The fact that this bill does very little to actually protect children and, to the extent that it does anything it does so at extraordinary cost, (costs that could be used to actually aid children who need it) was immaterial.

I don't know what's more comical, the fact people actually support this nonsense or the fact that those that do have no idea that this law was basically a huge giveaway to big business. It's good stuff either way- unless your desire for decent governance trumps your love of great comedy. If so, you're going to have a rough time of it going forward.
8.22.2009 5:15pm
David M. Nieporent (www):
Most people on this thread seem to believe that you should be able to sell toys that kill your neighbor's children, and that any consumer can magically "tell" when a toy is dangerous.

Are you all insane?
No; are you? What toys "kill your neighbor's children"? If you can find them, let me know; I'm happy to outlaw giving, say, live grenades to small children.
8.22.2009 5:17pm
Brooks Lyman (mail):
Psrents may not be able to determine whether a toy has lead paint or contains phthalates or other "toxic" additives, but they presumably know (or can be educated) that allowing very young children to chew on painted toys (I doubt that any paint is good for babies to eat) is not a good idea, and the same might be said for plastic items of questionable provenance. On the other hand, I personally doubt - pace the nanny-state doomsayers - that handling a lead-painted or phthalate-containing toy by a child not prone to pica is going to harm them.

At some point, we need to inject some common sense practicality into our laws and regulations.
8.22.2009 5:24pm
JakeCollins:

And they accuse the right-wingers of fear-mongering? Apparently you haven't read the law. No children have been injured by the items they're recalling. None.

The law is too complicated for me to explain it to you, but you're so far off base you look ignorant. It recalls millions of items that aren't harmful.

Do honestly believe that corporate america wants to poison and kill children? That's also insane, if I do say so.


Alexia and other libertarian fellow travelers seem to believe "No children have been injured by the items they're recalling. None."

What???? Children are injured by toys that are subsequently recalled all the time. This isn't an indication "that corporate america wants to poison and kill children." Nonetheless, it sometimes does so.

And yet you claim emphatically that they're none. I don't know if ya'll are ignorant, stupid, or just dishonest.

Here is just one example of these supposedly non-existent child injuries. Just use the Google, and you won't sound so stupid.

"S.C. child's injury leads to toy recall" AP 8/14/09
8.22.2009 5:26pm
pete (mail) (www):
Is it too much to ask that people recogniaze that some toys really are dangerous, but that this particular law is so overbroad and soley focused on the final product that it does more harm than good?

Pretesting materials would have the same benefit, without most of the costs. Having a list of preapporved items like various brands of yarn that can be used without requiring final product testing for chemicals (if no other non approved items are used) would solve much of the problems for small manufacturers without increasing the danger to children.
8.22.2009 5:39pm
einhverfr (mail) (www):
Chico's Bail bonds:

Because your child shouldn't have to choke to death on a small part so that you can have freedom from evil regulation.


The first thing they teach you in ANY safety or security field is the concept of "acceptable risk." We need to define acceptable risk, and acceptable cost before we discuss these sorts of things.

"No child should die" is not a reasonable standard.... At least not if you believe the child should be put in a car in an appropriate carseat and driven home from the hospital.... By that standard, no child should be allowed into the real world until adulthood and then they will be brutally unprepared for it and probably die soon anyway.

The second part of the question that you were referring to though is why it should be a federal law. A question you didn't answer is why it shouldn't be left to the state level?

A final point here is that I don't see anythng in this regulation which does what you say it does. It doesn't seem to be a violation of federal law to give a 1-year-old a toy that says "Has small parts: for years three and up."
8.22.2009 6:15pm
einhverfr (mail) (www):
Brooks Lyman:

On the other hand, I personally doubt - pace the nanny-state doomsayers - that handling a lead-painted or phthalate-containing toy by a child not prone to pica is going to harm them.


That probably depends on how much handling is involved. Glass harmonica players had lead poisoning from excessive handling of lead crystal with wet hands.

However, before I conclude something is harmful, I would want to see actual injury statistics. I doubt that playing occasionally with painted wood toys that have high lead content is itself exceptionally harmful.
8.22.2009 6:18pm
einhverfr (mail) (www):
Steve:

You're surely a much better parent than me. But I'll continue, in my naive way, to prefer buying my kids toys that haven't been recalled by the manufacturer.


And I will continue to give my kids toys I have made myself. I am still working on a radio controlled paper airplane which I expect to complete sometime this year or next.

(airframe is made from about 16 US Letter-sized pieces of 24lb laser printer paper, wingspan will be about 5 ft, and I expect it to be capable of some forms of aerobatics).
8.22.2009 6:24pm
http://volokh.com/?exclude=davidb :

Have you ever seen a child die from licking a bicycle?

Indeed I have. Once.

A confounding factor was that the bike was very, very cold. A similar tragedy was caught on film many decades ago.
8.22.2009 6:35pm
Porkchop:
GEORGE LARSON wrote:


I believe the bike problem is caused by a small amount of lead in the Schrader valve of the inner tube of some bikes. I do not believe the lead is a danger to any kid riding a bike. Could improper disposal of the inner tube contaminate soil or ground water?


Obviously, this is a nefarious government to benefit the makers of Presta valves.
8.22.2009 6:51pm
Obvious (mail):
Concerned parent Steve responds to me: "You're surely a much better parent than me. But I'll continue, in my naive way, to prefer buying my kids toys that haven't been recalled by the manufacturer."

Steve, does it give you any pause AT ALL that many if not most of the toys I played with growing up in the 1950s would, if made today, likely have to be recalled by the manufacturer. I'm happy to report all the kids in my neighborhood made it out alive...
8.22.2009 7:08pm
SenatorX (mail):
The toymaker lobby is slipping. The government should pay us to buy new environmentally safe toys and then destroy the old ones.
8.22.2009 7:56pm
newshutz (mail):
Well, there is always the solution offered in "Young Zaphod Plays It Safe"

After all, its "for the children"



(hint, as long as one is alive one cannot be "perfectly safe")
8.22.2009 8:10pm
Fub:
einhverfr wrote at 8.22.2009 6:18pm:
That probably depends on how much handling is involved. Glass harmonica players had lead poisoning from excessive handling of lead crystal with wet hands.
There is apparently no evidence to support this modern conjecture, and considerable evidence that suggests it is false. It's definitely not a lead pipe cinch.
8.22.2009 8:24pm
einhverfr (mail) (www):
Fub:

That article needs some additional areas of discussion. For example is the list of Glass Armonica players representative? Does one find different patterns in those who were professional musicians of the instrument? Certainly Ben Franklin wasn't devoting his life to that art....

Secondly, the question is how readily lead leaches out of the lead crystal used to make the glasses. I, quite frankly, have never heard anything about theories involving leaded paint.

It is interesting to note though that associates of mine who have voiced the most concern about exposure to lead in household materials did so while drinking wine out of crystal wine glasses.
8.22.2009 8:47pm
David M. Nieporent (www):
Here is just one example of these supposedly non-existent child injuries. Just use the Google, and you won't sound so stupid.

"S.C. child's injury leads to toy recall" AP 8/14/09
Perfect example. The kid... put a toy in his mouth that was intended for older children. In other words, the toy was perfectly safe; the problem was that a toddler was left unsupervised. Unless one argues that no objects on the planet should be smaller than a beach ball, it doesn't have anything to do with toy safety.

However, before I conclude something is harmful, I would want to see actual injury statistics. I doubt that playing occasionally with painted wood toys that have high lead content is itself exceptionally harmful.
Remember -- and this was discussed here before -- the nuts who passed the CPSIA have banned older books on the theory that there's a chance there might be lead lurking somewhere in there. I'll wager the number of children who have died this way is smaller than the number killed by stray meteors.

The first thing they teach you in ANY safety or security field is the concept of "acceptable risk." We need to define acceptable risk, and acceptable cost before we discuss these sorts of things.

"No child should die" is not a reasonable standard....
In fact, we're practically there already. A quick google leads to this, which says that there were virtually no deaths from toys. (22 kids killed in 2006, according to the CPSC, but the majority of them were "related to, but not caused by" toys. As in, kid gets hit by a car while playing with the toy.)
8.22.2009 9:32pm
einhverfr (mail) (www):
Mr Nieropant:

One interesting aside is that there is a push to mandate airbags and more securely bolted seats on airplanes on the theory that deaths could be avoided on relatively slow-speed landing mishaps where deceleration is no more than 9 G's of force. Singapore Airlines already has a number of planes with passenger airbag systems.

However, I keep waiting for them to ban kids on such planes on the theory that the airbags could kill children.....
8.22.2009 9:52pm
einhverfr (mail) (www):
crap.. sorry for habitually spelling your name wrong.
8.22.2009 9:52pm
EPluribusMoney (mail):
I spent my first 14 years growing up in a building that had a solid lead, unlined pipe probably 60-80 years old bringing the water into it. I drank tap water every day. Was told I had a high IQ and got through college and a good law school just fine. I think every building in the city had solid lead pipes.

Whatever reason they have for banning lead in pipes it can't be related to children's health.
8.22.2009 10:57pm
John Moore (www):
<blockquote>
<blockquote>
On a related note, how is this even vaguely constitutional?
</blockquote>

The Court answered that question 70 years ago in Wickard v. Filburn. I suppose that doesn't stop anyone from expressing surprise.
</blockquote>
No, it doesn't. Plenty of non-lawyers, having read the Constitution and the history of its drafting, are shocked when they encounter the results of that insane and unconstitutional decision.

Just because the Court provided an answer to the question doesn't mean the answer was correct.

The current subject just illustrates how far we have strayed from the founders' vision - especially as a result of Wickard V. Filburn, etc.
8.22.2009 11:52pm
John Moore (www):
Hmmm... the Blockquote thingie doesn't seem to work too well with Google Chrome. Back to Firefox
8.22.2009 11:55pm
karrde (mail) (www):
All and sundry:

It is easy to argue about the safety (or lack thereof) in the sale of children's toys that may have once been recalled.

My concern is the mode of enforcement: requiring the sellers of such merchandise to verify the (unknown) recall status of items which may have been made anytime in the last 30 years, by manufacturers who may or may not be in business, in a system which does not encourage a single clearinghouse/central-data-storage for information about recalled toys.

The CPSIA and it's anti-lead laws have a similar effect. Bans on items older than a certain age, expensive testing required on the finished product, no study of mode of transmission of lead into the bloodstream, no leniency for a fifth owner of an old toy or book who may pass it on to a sixth owner and their child.

It is almost as if these laws were written to make potential criminals out of anyone who does not have a small army of lawyers and secretaries to help them with their garage sale, second-hand shop, or family member who manufactures toys.

If there is a need for regulation of children's toys, there are better ways to do it. If there is any information that a statistically-significant number of children die due to toys which should have been (or were) recalled, then there are better ways for the regulation and safeguarding to occur.

But no, we have a law (and associated Federal Regulation) which seem focused on making compliance hard for everyone, but easier for large/wealthy corporations and incredibly hard for smaller operations. And our Congress isn't interested in these better ways.
8.23.2009 12:14am
Mike McDougal:

Is there a mens rea element? Or is this a strict liability crime?

I'd be surprised if it isn't strict liability.
8.23.2009 2:36am
ReaderY:
The sale of used item at garage sales affects the price of new items coming in from out of state in the same way that growing a marijuana plant in ones home affects interstate commerce in marijuana
8.23.2009 2:39am
MCM (mail):
"No child should die" is not a reasonable standard.... At least not if you believe the child should be put in a car in an appropriate carseat and driven home from the hospital.... By that standard, no child should be allowed into the real world until adulthood and then they will be brutally unprepared for it and probably die soon anyway.


You're sort of getting at the precautionary principle, which is a legitimate policy approach. It's more popular in Europe than America when it comes to consumer products and food, but in America it's effectively the approach we use to terrorism.
8.23.2009 10:52am
MCM (mail):

The Court answered that question 70 years ago in Wickard v. Filburn.
You mean the "Roosevelt court" had.


So I guess Gonzales v. Raich was decided by the "Reagan/Bush court"?
8.23.2009 10:56am
Fub:
einhverfr wrote at 8.22.2009 8:47pm:
That article needs some additional areas of discussion. For example is the list of Glass Armonica players representative? Does one find different patterns in those who were professional musicians of the instrument? Certainly Ben Franklin wasn't devoting his life to that art....

Secondly, the question is how readily lead leaches out of the lead crystal used to make the glasses. I, quite frankly, have never heard anything about theories involving leaded paint.
Seems to me that extraordinary claims put the burden of proof on the claimant. If one asserts that glass armonica players died from lead poisoning, then one should produce at least one colorable example of such a death.

Same for the notion that lead leaches out of leaded glass. Any example of such an occurrence would at least open the question.

But the mere assertion of either is no more persuasive than the assertion that children are endangered by books printed before 1985.
It is interesting to note though that associates of mine who have voiced the most concern about exposure to lead in household materials did so while drinking wine out of crystal wine glasses.
They are probably in more danger of having their hands encased as the glass flows.
8.23.2009 11:42am
Sarah Natividad (mail) (www):
No one, including people who sell pure chunks of lead, wants children to get lead poisoning. In fact I have to wonder how any thinking people can believe for one minute that anyone producing children's products does so with the slightest bit of desire to poison their customer base.

For those looking for stats on lead poisoning, I refer you to the CDC's website. Lead poisoning cases are in exponential decline since 1996, thanks to the 1978 ban on lead in paint and the later ban on lead in gasoline. Of the cases that remain, upwards of 75% of them are due to lead-based house paint. (This source says 85%, other sources differ but all are in the 75%-85% range.) The rest are largely due to contaminated soil and lead-containing home remedies and cosmetics used in immigrant communities. You can count on one hand the number of cases each year traceable to consumer goods, and most of those are from adult consumer goods (e.g. the child that died in 2006 from swallowing his mom's lead bracelet charm, or a 2008 non-fatal case involving a candle charm) which are not regulated by CPSIA. It is notable that the NIH's recommendations for avoiding lead poisoning do not mention toys, clothing, books, bicycles, ballpoint pens, or any other consumer product as a source of lead poisoning.

Indeed, bicycles are a great test case for CPSIA. No child has ever contracted lead poisoning from a bicycle, nor to my knowledge have any bicycles been recalled for excessive lead in the metal. Bicycle manufacturers use recycled metal for their low-priced bikes. The problem isn't that this metal contains too much lead, so much as it's that it's difficult to control the lead level of recycled metal. Because the suppliers of recycled bike metal can't guarantee consistent lead levels, the cost of testing the metal becomes prohibitive. Not only that, but the one part of the bike that is guaranteed to contain violative amounts of lead-- the valve stem-- is so tiny that a child would have to eat a rather large quantity of them to get any measurable rise in blood lead levels. You'd think that if your child was taking the valve stems out of every bike in the neighborhood and eating them, you'd find out about it well before any deleterious effects ensued.

Sure, CPSIA makes our children more safe. Instead of only being able to eat a 6' bookshelf full of books before they got lead poisoning, now they can eat the whole library and you can sleep tight knowing they're safe! Well, at least until you have to take them to the doctor with a seriously upset stomach.
8.23.2009 12:49pm
LiC:
Yeah... you're complaining now... but when your Easy Bake Oven goes critical and your Polly Pocket Doll creates a stable singularity, then you won't be laughing. You'll be there on the event horizon trying to run away like Wile E. Coyote cursing the government for not protecting you from those damned black holes.
8.23.2009 1:31pm
einhverfr (mail) (www):
Fub:

The question about glass armonica players comes down to a few questions, such as how much weight we give contemporary accounts of dangers. Given how pervasive lead poisoning was at the time, you are correct that it is difficult for such a theory to be upheld.

As for crystal wineglasses.....

The rule is they are fine to drink out of but if you store any liquid in them for any significant length of time (hours, for example), they begin to pose some dangers. The simple safety issue there is don't set your wine down and come back to it a few hour later, and don't store the wine in a crystal decanter for any longer than necessary. Same goes for lead pewter.
8.23.2009 2:31pm
Mac (mail):

You're surely a much better parent than me. But I'll continue, in my naive way, to prefer buying my kids toys that haven't been recalled by the manufacturer



OK, so you are not going shopping at garage sales. Nor are you going to give your kid any "antique" toys you may have played with as I did.


I assume you are only going to buy NEW toys then, but how do you know it won't be recalled at some future date by the manufacturer?



Seems to me that, to follow your logic, you should not buy any toys for your kids. That is the only 100% safe method of insuring that they will never come into contact with a toy that might be recalled.

Ditto, you cannot make a toy for your kid because, assuming you do not have a laboratory, you could not test the raw materials prior to making the toy.

Whatever happened to the 3 R's, reduce, reuse, recycle? It is good for Global Warming, you know, or at least that is what we are told, but then the Government wants us to throw out perfectly good toys because they might have some small amount of lead or not.

It especially pains me that the thrift stores etc., are throwing out beautiful old books. I still treasure many books from my childhood as does my daughter to whom they were passed on from a young age. How did she ever make it to 28 and make the Dean's List to boot at ASU while working full time? She should have been a slobbering imbecile, I would think, what with all the garage sale toys, my old toys, and the old books she handled.
8.23.2009 6:33pm
Mac (mail):
Steve,

You should also go through your wallet and house and eliminate all of your change. A stray penny dropped on the floor was the only thing one of my kids put in their mouths that nearly choked them.

I am sure there are many other normal household items that you should eliminate, like keys, hard candy, all toys of older children (Legos) anything with a bolt or nut that could loosen and fall out, as they sometimes do and so on. Good Luck.

When you are done, you might want to consider that there is no replacement for parental common sense and eternal vigilance and a lot of luck.
8.23.2009 6:43pm
Sarah Natividad (mail) (www):
Mac: I agree. My kids are an extreme case: I have a boy on the autism spectrum who at 18 months dismantled his hand-me-down crib enough to remove two bars and escape from it. No humane door lock could hold him in his room, and he had no fear of danger or pain. We finally gave up on childproofing and settled for slowing him down enough for us to catch him before he got into a forbidden area or did something dangerous. But we never once felt it was the responsibility of gate manufacturers to make sure he couldn't defeat their gate, or the responsibility of crib makers to keep their products mechanical-kid-proof in perpetuity. At some point, their responsibility has to end and the parents' has to begin.
8.23.2009 7:21pm
Sammy Finkelman (mail):
Here is an example of a legislature never paying attention to details. But they haven't paid attention for years. They treat these kinds of questions about garage sales - and even small businesses - like they didn't exist.

But people in legislatures also know that laws in fact are not enforced as written - and that it is difficult to write them so they will cover just what they want.Many tax laws are written with this kind of thinking. Obama is now proposing giving help to poorer people to buy helath insurance that also probably won't pay attention to the problem of accurate reporting.

It is only businesses that pay taxes that will be affected by this thing. The problem here is that even that is over broad. Congress was probably only thinkinbg of businesses big enough to have lobbyists.

Many garage sales in many states probably violate sales tax laws. They may violate post no bills laws. A garage sale probably doesn't violate any income tax law, because in most cases they are losing money and only recovering part of their initial cost. A lemonade stand probably does violate a whole host of tax laws. That's not being enforced - why should this be?

This sorts of works because there is an informal economy
8.23.2009 11:42pm
Sammy Finkelman (mail):
Here is an example of a legislature never paying attention to details. But they haven't paid attention for years. They treat these kinds of questions about garage sales - and even small businesses - like they didn't exist.

But people in legislatures also know that laws in fact are not enforced as written - and that it is difficult to write them so they will cover just what they want.Many tax laws are written with this kind of thinking. Obama is now proposing giving help to poorer people to buy helath insurance that also probably won't pay attention to the problem of accurate reporting.

It is only businesses that pay taxes that will be affected by this thing. The problem here is that even that is over broad. Congress was probably only thinkinbg of businesses big enough to have lobbyists.

Many garage sales in many states probably violate sales tax laws. They may violate post no bills laws. A garage sale probably doesn't violate any income tax law, because in most cases they are losing money and only recovering part of their initial cost. A lemonade stand probably does violate a whole host of tax laws. That's not being enforced - why should this be?

This sorts of works because there is an informal economy
8.23.2009 11:42pm
Mac (mail):
Sammy Finkelman

The problem is, this is harming thrift stores which are non-profits. It is making life a nightmare for them. If they have to throw all this stuff out or face breaking the law, they are going to have a difficult time staying in business and making the money that they donate to charity.

Another case of good intentions gone very, very wrong.

The road to hell and all that.
8.23.2009 11:57pm
Mac (mail):

Sarah Natividad (mail) (www):
Mac: I agree. My kids are an extreme case: I have a boy on the autism spectrum who at 18 months dismantled his hand-me-down crib enough to remove two bars and escape from it.



Wow, you had it much worse than I ever did. I am reminded of a family I knew who had a child about whom we said, "You think you have your house child-proofed until Ashley shows up". I vividly recall fishing her out of our fireplace covered in ashes. I don't recall if she ate them or not. She certainly covered herself in them. I never had any other child get into the fireplace.

My daughter could open the child-proof cabinet mechanisms with ease long before she understood not to drink what she found there. Like you, I had no intention of suing anybody. My son, was born with common sense and was very easy in that way. He made up for it when he became a teen ager.

I shudder to think what Steve is going to do when his kids get behind the wheel of a car. Or much worse, if he has a daughter, when she gets in a car with some boy who is behind the wheel. Talk about pure hell. Give me the toys with lead, please.

If it's any consolation, your child is probably very, very bright and will do well in life if his creativity is not killed in school by sheer boredom.
8.24.2009 12:12am
Losantiville:
If a product has been recalled, there are plenty of other products I can get for my kids instead.

If a book has been "banned" under the CPSIA because it was published in 1984 or earlier, there are probably few substitutes. Most children's books published before 1985 have not and will not be reprinted. Modern children's books are not good substitutes because they are informed by very different sensibilities.

As for lead in toys. Since they used to make toys out of solid cast lead and most "users" survived, I would guess that today's children would too. Perhaps one can discourage one's children from eating toys.

The strict and constantly changing legal environment of the CPSC in which products can be banned and then the substitutes banned and then mandated fixes of one year converted into next year's federal crime. Madness. I'll take care of myself and my children.
8.24.2009 2:37pm

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.