CPSIA and Small Manufacturers

If you are a small company, this is probably one of the most important articles you’ll ever read here. Please read this carefully. Very carefully. Make note of verbiage such as “may”, “must” and “at this time” within the appropriate context.

There is some confusion regarding requirements that I will make more clearly; points of law brought to my attention by Jennifer Taggert, an attorney and environmental engineer who specializes in these matters. These distinctions and how they affect your business are significant based on company size (I’ll explain the differences and why it matters further along). For the sake of expediency, I’m only discussing lead; phthalates are omitted from discussion unless otherwise specifically stated.

First of all, the law is clear with respect to three pivotal matters regardless of company size:

  1. As of February 10, 2009, no more than 600 ppm lead can be present in products intended for children aged 12 and younger, as determined by a “reasonable testing program”.
  2. Third party testing, is not required until August 16, 2009.
  3. General Conformity Certificates (GCC) are required as of February 10, 2009.

Caution is in order.
Legally, you cannot blithely state your products don’t have lead just because you’re a small company making everything yourself, your products are “high quality” and issue your own GCC based on that assumption. Do you really know? I am shocked at the number of children’s tee shirts embellished with Swarovski crystals applied to them by home makers. These are nearly all lead! Likewise, what of applications like “puffy paint” or other paint applications or iron-on decals purchased at craft stores? How do you know those don’t contain lead or phthalates? As such, you are required to have a “reasonable testing program”. Unfortunately, “reasonable testing program” is unclear at this point but due diligence is implied. As the law reads now, effective August 16, 2009, CPSC certified third party testing is required. So, from February to August, you may have the option of using a reputable lab or testing service that is not an officially approved CPSC testing lab. Now, just because a lab is not currently approved doesn’t mean the lab isn’t any good but you have to do your homework. You will have to determine whether an official body such as the CPSC or your state’s Attorneys General (charged with enforcement) would consider your lab to be a legitimate resource. Some have suggested home testing kits for lead are an option but it is dubious that these would be acceptable. Most authorities agree that lead testing services provided by businesses such as Taggert’s are viable. Using an XRF gun, inventory samples can be scanned for lead. This is an attractive option for smaller producers because products remain saleable after testing (more comprehensive testing destroys products), it’s faster and it costs much less, perhaps $200 to $300 for a batch of samples.

In this entry on her blog, Jennifer Taggert makes the valid point that it is not true that existing inventory must be tested by a 3rd party but context is everything. I know how long you guys can hold onto inventory and she may not. Many of you hold inventory for much longer time periods than traditional manufacturers. Probably the best way to phrase this is that -at this time- inventory sold prior to August does not need third party testing. That doesn’t mean inventory doesn’t have to be tested, it does, it just means inventory isn’t subject to destructive and expensive CPSC certified third party testing. In summary, if you’re holding aging inventory (as I know many of you are) past the date of August 16, 2009, it will be subject to third party testing. Until then, you can use “reasonable testing” such as XRF gun scans.

“At this time”
A word about why this matters. Many of us are of the opinion that this law as written, is not sustainable due in part to costs and likely rampant non-compliance. There is little doubt there will be a fall out on February 10th that will disproportionately affect large producers. We are of the opinion that as a result, the regulations will evolve to more reasonable standards, hopefully before August when third party testing is required. As such, this may represent an opportunity for smaller companies. Worst case scenario, even if third part testing remains in effect, it is possible more labs will be approved by the time August rolls around. This means it may be that you can stay in the game and wait it out hoping for more favorable conditions in the future. I hope you all realize that any gains you realize will be coming at the grave expense of large firms so it remains inappropriate to sling any tactlessly worded verbiage towards them.

There is another reason it is inappropriate to speak badly of large manufacturers other than it’s just bad breeding and foul play since we’re all in this together and it serves no purpose to splinter. You stand to gain a lot more than they do. I realize it’s hard for you to see that now but more of them will be profoundly impacted by this law in ways you are not. Worse case scenario, littler players can wait it out a season or two but being smaller, it’s easier to get back into the game. Larger players can’t do that. How can they? Their product development time lines are 12 to 15 months out. Assuming they regroup (I think many will just throw in the towel) the smaller players who hid out for a season or two can get back in much faster and get higher margins in the short term (due to lack of product on shelves) which will help to recoup re-start up costs. I’m not saying you won’t be hurt, I’m not saying it won’t cost you but I am saying this is a matter of magnitude. The bigger they are, the harder they fall.

How the law disproportionately affects large firms.
When I was at that meeting in Washington last week, one man said “I don’t care what the CPSC wants”. You could have heard a pin drop but he has a very good point. He only cares what his customers want. Let me explain.

Very few retailers are environmental scientists cum attorneys and if the law confuses you, multiply that by a magnitude of “x”. They’re simply too busy to deal with it, they need easy standards to eliminate their liability because they are much larger targets for enforcement and lawsuits. As such, their fulfillment requirements are much stricter than the CPSC. They have to. They’re selling clothes and toys, not groceries. As I explained in the forum, this law is complex and retail doesn’t understand it anymore than we do. They don’t care that varying lead levels or third party testing is required on different dates. While they are set up to manage aging inventory according to seasonal calenders, they’re not selling groceries with rapid expiration dates. Retailers are not set up to cycle quickly expiring products in and out. They are not set up to buy and sell perishable products like milk. They’re not going to be able to track inventory at x lead levels according to a calender of X date in order to pull it from the shelves on time. So, they’ll do all or nothing, whichever is the least risk and ambiguity. They need blanket procedures to follow. Their definition is much stricter and more narrow than the CPSC.

In summary, to limit their liability, the largest stores are requiring third party testing for all goods sold after February 10th. They’re not waiting until August to implement it. If you don’t have any large retail accounts, this isn’t likely to affect you. If you do have big box customers, it would be safer to assume you’ll be getting product returned starting in mid January if you have not provided them with the required GCC so expect some sort of notification by mail. If you’re selling to smaller stores, I’m not surprised they know nothing of it. It has scarcely been mentioned in the trade press but with the upcoming fall selling season starting in January, rumors will be raging at market among smaller store owners. Hopefully you’ll be able to convince them your products are saleable without third party testing until August 2009. Remember, you are required to use a “reasonable testing program” to verify your lead levels as of February 10, 2009.

What you can do now:
Be sure to read Taggert’s entry for more information and background. You can also find a lot of information in the forum which is now open to the public. There’s a ning group focused on activism; Rob Wilson published a related entry on the topic of toy inventory today. You can sign the petition. Don’t hesitate to spread the word of the unintended consequences to anyone who will listen. Write letters to the editor and your legislators before this narrow window that only favors small companies closes in August 2009. Point people to all these sites (including National Bankruptcy Day) to bring those points home.

Related in the forum:
The War Room: CPSIA & Consumer Safety. This is a very active section with nearly 60 different threads and over 1,000 postings. Open to the public.

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  1. Peggie says:

    I wrote my congress people and one of them wrote back to me. Her understanding is that it only applies to paint on toys. She has no idea!! I wrote and asked her to please revisit the law as there is more to it than that. Have not heard back yet.

    Our law makers do not even know what they are approving yet they claim to stand for the people and the best of the people.

  2. Thank you for your tireless efforts. You have worked so hard to help spread correct information. I have sent my letters and continue to try to Twitter about this and send people to your site. Educating is the key! Anyone that I explain this to is shocked by the lack of media. Hopefully we will be loud enough that the CPSC, the media and our legislators will hear.

  3. LizC says:


    I’ve been spending an hour or more each day contacting new groups of people (both in business, and just families), and encouraging them to become educated and then act. I appreciate all your efforts here–I’m willing to do my part to repeal this poorly-thought-through piece of work.

  4. Jane says:

    Actually, the general certificate of conformity requirement is in effect NOW and has nothing to do with the Feb. 10th deadline for products with >600 ppm lead.

    See Section 102(a)(1)(A), which states that the general certificate requirements shall come into effect 90 days after enactment. Enactment was August 14, 2008. That means this section came into force on or around November 14 (I haven’t counted out the exact days).

  5. Michael says:

    By February, how many retailers will be left? That is the question we should be focusing on… this CPSC business is smoke and mirrors for the bigger problems out there… YMMV.

  6. Jane –

    There is a schedule for requirements for general conformity certificates depending on when the applicable law comes into effect. Manufacturers are required to issue general conformity certificates now for those requirements in effective now. But, there is no lead content requirement right now for children’s products – that is effective 2/10/09. In fact, the CPSC answered this very question in the CPSC’s Frequently Asked Questions:

    Question: If you have a “children’s product” with possible lead content, do you have to have a certificate on November 12, 2008, even though the lead rule is not effective?

    Answer: No. The lead content limits for children’s products do not go into effect until February 10, 2009. As stated above, children’s products manufactured after February 10, 2009 (600 ppm), will need a general conformity certification based on a test of the product or a reasonable testing program for products and children’s products manufactured after August 14, 2009 (300 ppm), will have to be certified based on third-party testing of the product by accredited third party laboratories.

  7. Jane says:

    Yes, I understand that. I am pointing out the general conformity certificates requirement applies now and goes above and beyond the lead requirement. Congress wouldn’t have written that section to be of immediate effect (90 days after enactment) if it only applied to the lead and/or phlalates bans/phase-outs. Children’s products manufacturers and importers (big and small) need to pay attention to *all* relevant safety standards and provide a general certificate of conformity regarding the applicable safety standards. As far as I am aware this is a new requirement. So point #3 in the OP is not technically accurate. Will there be any enforcement implications? I don’t know — but people should be aware that that certification requirements are currently in effect and make decisions accordingly.

  8. Allan says:

    I am a parent.

    I want EVERYTHING my children come in contact with to be safe. Congress addressed my concern.

    If small manufacturers would address my concern with a different solution, I am all for it. Otherwise, I will go with Congress, and make sure my children are safe.

  9. Allan, most of the posters here are parents too. They do have a different solution.

    Congress has written a law that says that if you make two child’s flannel nighties, one short one and one long one, that you have to send both nighties to an independent, third-party lab for thousands of dollars worth of testing. Every manufacturer who wants to use the same flannel or thread has to do their own testing. A large manufacturer who sells thousands of nighties will be able to afford this, but may decide in the future not to offer short and long nighties any more and just go with, say, medium-length ones to save on testing twice. A small manufacturer who only sells 20 nighties a year will simply not be able to afford testing at all and will close their business.

    The posters here want to be able to make their nighties with flannel and thread that has been certified by an independent, third-party lab. It’s less wasteful than everyone testing their own completed nighties, but the current law doesn’t allow for this.

    That’s all.

  10. Julia says:

    All of us, whether we have children or not, want children AND adults to be safe. However, the way these new rules are written, they do not make sense.

    If it stays as it is, companies, big and small, will have to factor in those extra costs somewhere, and guess what, the consumers, i.e., the parents, will be the ones who will have to shell out that extra cash.

    So as a parent who maybe spends $50 on a fleece, jogsuit set for your child, will you be willing to pay $200 – $300 for that same item? Because after this law goes into effect, that is one of the scenarios I see happening, or as Alison indicated, it may all become a hassle to deal with for manufacturers and stop producing that product all together.

    There is more lead coming from a TV or a computer monitor than the textiles we use for our apparel products will ever have. But how many parents are willing to stop having their children sit in front of these items?

    Parents shouldn’t assume that the manufacturers, designers, et al., don’t care about your children. We do.

  11. Anne says:

    Allan’s response is why this issue is so difficult, and why our representatives don’t want to touch it. It’s so easy to misunderstand our intentions, especially when dealing with such a delicate topic. Nobody here is after getting the law repealed — we simply want modification of the testing procedures. Sensible modifications like allowing component testing (among many of our solutions) for apparel will make our products no less safe, but will mean the difference between thousands of companies being able to continue offering quality products to the consumer, or those same companies all closing their doors (meaning you would have many, many fewer choices as a parent). I would have to raise my prices for infant clothing by $40 (do you want to pay close to $100 for an infant sleeper?) if the legislation stands vs. $5 or less if component testing is used. Anyone to whom I explain the current testing regimen immediately responds, “This is ridiculous!”

  12. patsijean says:

    It sounds like the authors of this legislation know nothing about how the textile industry works. They need solid, reasonable education into the process of textile manufacturing, the the subsequent use of those textiles, buy large, small and home businesses. Is this too easy?

  13. Kathy says:

    Allan, we ALL want our children to be safe. The CPSC needs to modify this legislation to keep our children safe AND keep businesses intact. THE SHELVES WILL BE EMPTY and you won’t have anything to buy for your children under the current plan!!!!

  14. Clinton Jackson says:

    Hello to everyone, I am new to the forum. I’m starting a sports line and I’m preparing to exhibit at the Magic in February 2009. The information and comments like this article has been a great help in the development and the strategic direction of my line. I’ll be sure to purchase the FXR GUN and mention that I’m CPSC compliant or aware of the new law. I’m doing a 10 x 10 booth display, if anyone has any helpful comments on booth displays; I’m all ears.

  15. Suzan says:

    Just like everything else, the people who should have kept an eye on the dangers all along messed up and now expect everyone else to pay for it. I have a small home-based sewing business, hving to pay to have everything tested will change things drasticly. I will do longer purchase supplies, instead the customer will have to do it. Most people that want custom sewing have no idea what is needed to complete a job. Supplies should be tested and verified at the manufacturer not by the consumer.

  16. Kathleen says:

    In reference to what I wrote earlier (How the law disproportionately affects large firms) and why retailers have more clout to impose standards on vendors than the CPSC, I was told this morning, that Burlington Coat Factory, has sent a letter to all of their vendors saying that anything they’ve shipped as of January 1, 2006 -two years ago!- must be compliant or they will be returning it. Two years ago! Wal-Mart hasn’t been quite as regressive as BCF but they’ve put their vendors on notice to supply LAB RESULTS -not GCCs- for any goods shipped over the past three seasons (which could span a time period of a year depending on a company’s seasonal calender) and if they can’t, to include an address where the goods can be returned. JC Penney’s is auditing their entire inventory; anything not meeting the August guidelines will be “marked down to zero”. Bone chilling words as they typically charge back those discounts to vendors. Lastly, some retailers are abdicating altogether. QVC will not sell any children’s toys anymore, period.

  17. Melanie says:

    I have a small crafts business out of my home & I’ve just expanded my business to include embroidery, and now am faced with either destroying my newly purchased supplies and inventory…or taking a chance and selling anyway. I just read the actual law, and while difficult to read, is clear that this law has funding and hiring requirements for inspectors! They even list going to yard sales and thrift stores to ensure these items are not resold!!! I plan to contact my Representative, who happens to be on the Energy & Commerce commission (I live in Oklahoma)…and I wwill be contacting the local media too. I also found a part in the law, that basically states that every place of business that uses cribs, must replace them, if they don’t meet the requirements of this law…that would be every daycare, church, school…anywhere that has cribs for babies. This is Washington run amok. It was a well intentioned law, but in their zeal to correct an issue (that mostly stemmed from products imported from China), they used a shotgun approach and now will be shutting down a large portion of the US economy & spending millions for inspectors! I know we are all getting active on this, but the general public needs to understand, that it will affect them too… they most likely won’t be able to find most of their children’s items on the shelves… The big retailers will just pull everything that they are not 100% certain complies with this new law. BTW…I also contacted some of my suppliers. JoAnn’s, Equilter and Discount Embroidery Blanks, all knew nothing of this when I contacted them. However, as I understand things, it will affect them too, since they sell either children’s fabric, or items that can be embroidered on, like baby blankets…which means they can’t sell without that certificate from their manufacturers. Everyone please keep spreading the word…Thanks to this forum for some great information!

  18. Carol Daly says:

    I am so disgusted with our lawmakers that I could scream. What are they thinking?!

    I operate a very small home-based toy and children’s products business with 2 different web sites that include actual toys and some wearables. I sell many manufactured products, but I also sell many handcrafted products made by individual handcrafters and wood craftsmen. (None of the toys or children’s wear that I sell, even made by manufacturers, have ever been recalled or had to be remanufactured for safety reasons.)

    The handcrafters who I contract with do not “manufacture” as such — they simply create products with items purchased through local lumber companies and fabric stores. They are not “adding” lead-based anything to their wooden toys (most are unfinished, but some are “stained” with a food-coloring based stain). The fabric capes and costumes that I sell are made by a lady who became medically disabled and needs the little bit she makes from me. These people will all suffer needlessly if this law goes through as written. Just once, I’d like to our government representatives think something through completely before passing another ridiculous law. We’ve become a country of senseless governing by half-baked laws. And we wonder why we are in economic trouble today. Laws like this protect all the wrong people, and hurt the small business person at every turn.

    I think we would all agree that laws on “FOREIGN IMPORTS FROM CHINA” should be reviewed and tightened up. Chinese products are cheap for a reason. But this over-reaction by lawmakers is a national outrage and shows only that they are totally ignorant of what needs to be done. The actual % of children injured is very small in comparison to the numbers of toys sold. While certainly no child’s life is expendable, we have to be realistic and realize that some of the responsibility for child injuries from toys (with or without lead) is unavoidable, and some is unfortunately (though not necessarily negligently) the fault of the parents who give their young children age-inappropriate toys and let them play with them unsupervised. A child who still puts toys in his/her mouth should be monitored no matter what he is playing with. Would we want any of our children to “eat” even non-toxic paints? Do we want any of them to swallow magnets? Do we want any of them to choke on small parts of toys? Of course not, but where is the shared blame for the parents here? The children who became seriously ill a year or so ago from putting a Chinese-made product in their mouths (some kind of “paint dots” craft kit) . . . the paint dots were toxic and should certainly be reformulated without whatever chemical was used to make them. But again, why were children young enough to be putting these things in their mouths, playing with them to begin with? And I don’t remember the incident numbers on that particular product, but I believe it was under half a dozen.

    And what about the good old-fashioned word, “accident” that is simply just not anyone’s fault? Like it or not, accidents happen every day. Some are preventable, sure; but some are so freakishly weird that they could not be anticipated or probably duplicated. A while back a little boy jumped off a top bunk into a drawstring toy bag that was hanging on the side of his bed, hanging himself. It was the most horrible and strange accident I’d ever heard of, and my heart ached for that mother who found him there; but does that mean we should now ban all drawstring toy or clothing bags? What are the chances of that happening on a widespread basis? I’m sure there are other parents out there who read of that incident and took precautions to remove similar items from their own children’s beds. That’s the kind of thing that’s needed . . . education of the possibilities, if you will . . . not more ridiculous laws that make life difficult or even impossible for our US-based companies and handcrafters. No law, no matter what it says, will stop every possible children’s accident or death. I know a family whose 7-year old son was killed falling off his bicycle several years ago — he was wearing a helmet, knee and elbow pads, but he was killed anyway. The handlegrip perforated his spleen as he fell — he died before they could get him to the hospital. It was a horrible accident, but that’s all it was — an accident.

    Sometimes I’m amazed that I and my friends and siblings grew up at all in the “dangerous” lead-laden world of our old 100-year-old+ houses that we lived in, with dangerous cribs, wooden play pens, no helmets, padding, or toy restrictions of any kind except for the good sense of our parents.

    I will almost certainly have to close my business this year after 10 years. And the wonderful people I have contracted with to make handcrafted toys and costumes for me will then be out of business, too. It’s especially sad because so many cottage industries are built on the very premise that once described all our US companies — personal pride and attention to detail. These people have a passion for their work and get their pleasure from watching children enjoy their creations, not from worshipping the almighty dollar. One of the woodcrafters I buy from sells his toys from his web site as well as selling them to me and a few other toy stores. He’s already had orders cancelled this past month that he was anticipating shipping in January. And I won’t be ordering anymore either at this point, unless I order on a “per sale” basis for a while. I can’t afford to get stuck with more inventory than I already have on hand . . . I’m looking at a several thousand $ loss in inventory as it is. I want to avoid bankruptcy, and will do my best to suffer through this using our family’s personal income . . . but either way, we suffer.

    Write to your Congressmen again people . . . explain the facts of life to them in agonizing detail and tell them to READ every line, every word, and consider the broader implications of each and every detail of this proposed law before they vote on anything. They hold our fate in their hands, and passing this law will NOT save each and every precious child from harm, despite what they might think.

  19. Anna B says:

    Unfortunately, Carol, restricting Chinese imports would also not be good for our economy as China pretty much owns our national debt. Hence, why our legislature didn’t dare do the obvious thing and force our favorite banker to call in their loans. I will be selling felt decorations instead of felt toys after February. Never mind that these are the same things I make for my own children to play with. I foresee Objects d’Art and collectible objects as the new cottage industries. I’ve written letters, but I honestly don’t expect much more than a form letter saying how great this legislation is in reply.

  20. Sylvia says:

    Yes, I too contacted my legislators. One sent back a “form” letter basically stating that the law was a great thing and I need to get a grip.
    Another (from my own district) sent me a letter by mail (the only one to do so…) stating that he understood the problems and would do his best to address them. The other one never responded at all. I didn’t expect her too. She is the worst. I’m from Washington state by the way.

    I also attempted to contact our media and they must have decided it wasn’t newsworthy since no one has done any reporting on it. Just wait until their favorite seller goes out of business or the special stuff they want either costs double or isn’t there at all. Maybe THEN people will wake up. Seems like it takes that to make our complacent society do anything.
    Pessimistic I know. Sorry…. ;-)

  21. Suzanne says:

    In response to Allan :
    I am also a parent, but I fail to see why I should be forced to test the finish product which I have created using products I buy in the US (at retailers anyone can frequent), and add nothing else to.
    Right now if I want to crochet a baby toy and sell it, I need documentation that says it is lead-free. Well, the yarn I use was lead free, and the stuffing I use is lead free (according to their manufacturers) but as the end-user I am somehow MORE responsible for this than the manufacturer who MAKES the baby yarn (which by it’s label implies that it is sued for make baby items). Even though a “batch” of my work is one toy?

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