Quin-essential Cases: Unleaded economy could fuel huge job losses
By: Quin Hillyer
Examiner Columnist
February 3, 2009
Folks often hear the exhortation to “get the lead out” when moving too slowly. But Congress’s over-hasty insistence on getting the lead out is about to cause massive economic problems in an already weak economy.
The Manhattan Institute’s Walter Olson wrote Jan. 16 in Forbes that a new law, limiting lead content in consumer products, probably will be “a calamity for businesses and an epic failure of regulation, threatening to wipe out tens of thousands of small makers of children's items from coast to coast, and taking a particular toll on the handcrafted and creative, the small-production-run and sideline at-home business, not to mention struggling retailers.”
Antiques dealers, toymakers, electronics retailers, even book manufacturers and diaper makers all are agitated, and in many cases confused, about the new law that is scheduled to take effect Feb. 10. As usual, only the plaintiffs’ attorneys are rubbing their hands in glee.
Last August, Congress passed the Consumer Product Safety Improvement Act, which mandates that all products for children ages 12 and under be tested for lead and phthalates (a chemical in many plastics), and that no such products be sold with lead contents higher than 600 parts per million. (Ingested lead, of course, can cause serious health problems, including learning disabilities in children.)
The sales ban applies retroactively, too: Even if the items in question were made 100 years ago, The Consumer Products Safety Commission (CPSC) has advised that a second-hand store could be subject to lawsuits or even “criminal penalties” for selling them.
Even antique lead soldiers sold as collectibles for display, rather than as play toys, could conceivably trigger punishment.
In the realm of the bizarre, the ban scared Honda into withdrawing all its youth all-terrain vehicles from the American market because the vehicles contain lead alloys. As Olson noted, “the irony, of course, is that of all the imaginable safety hazards posed by the existence of youth motorcycles and ATVs, the danger that kids will eat the darn things must rank at the very bottom.”
Last Friday, the CPSC, hamstrung by Congress, arguably made things worse. After a huge coalition of business groups, ranging from the Craft Yarn Council of America to the Association of Home Appliance Manufacturers to the International Snowmobile Manufacturers Association, requested that the agency delay regulations putting the law into effect, the CPSC announced it would delay enforcement of the testing and certification requirements – but not the ban on sales.
Furthermore, because the new law empowered state attorneys general to enforce its provisions, retailers could still be subject to penalties from the AGs even if the CPSC holds off.
Even worse, because the underlying law still applies even if it is not enforced for now, anything sold between now and a year from now could make the retailer liable retroactively. (That’s what has the class-action plaintiffs lawyers licking their chops at the prospect of filing lots of lucrative lawsuits).
In explaining the enforcement stay, CPSC Chairwoman Nancy Nord wrote:
“The stay of enforcement does not provide relief for the charities, thrift shops, resellers and small retailers who are impacted especially hard by the retroactive effect of the lead ban to existing inventory.
“While these groups do not have a legal requirement to test their inventory, they must meet all standards enacted by Congress. [They] will have to decide whether they will continue to sell children's clothing and other products that have not been tested, even though no one has suggested that they are unsafe.”
Confused? Join the club.
“In effect, no burden has been lifted,” said Rosario Palmieri, vice president for regulatory affairs of the National Association of Manufacturers (NAM). “It was the least helpful way to do this.”
The official NAM analysis of the stay explained: “For example, if a manufacturer requests that a product be exempted by rulemaking, and ultimately it is not exempted, any such product sold would be subject to recall and the manufacturer could potentially be subject to class action litigation.”
If Congress and President Obama have any decency, they will pass an emergency bill this very week to delay all implementation of the act for a full year, until they themselves can re-do the original legislation to make it more clear, and more sensible.
Quin Hillyer is associate editorial page editor for The Washington Examiner. He can be reached at qhillyer@gmail.com.
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