Uncle Sam vs. your favorite toys

In the wake of the Chinese toy product debacle, and under pressure from the American people, the US government has mandated what amounts to a massive recall of its own. Children's products such as clothing, shoes, bedding, toys, tennis balls, staplers, books, bicycles, consumer electronics, and practically anything that any child under 13 years old would use are all on the list.

This recall affects millions, if not billions of dollars of inventory deemed safe today but may be considered contraband on Feb. 10. Has this inventory been found to be in violation of safety standards? No. Has anyone been injured by this inventory? No.

Even in these tough economic times, thrift stores and charities will no longer be able to sell or distribute used children's clothing, toys, cribs, and strollers without fear of legal repercussions.

In August 2008, Congress passed the Consumer Product Safety Improvement Act (CPSIA) in reaction to a rash of toy recalls in 2007 from unsafe lead in paint found in certain toys made in China. New, expensive, and complicated procedures were mandated to clamp down on how children's products companies do business.

The law has been interpreted to require existing inventories of children's products across the country to undergo expensive testing to certify compliance with the new lead standards, even in cases where there is no scientific basis for lead to be a danger; products that cannot be proved to be in compliance must be destroyed.

Later this year, the CPSIA will require expensive and redundant third-party testing for lead on practically all components of all new finished products.

This law defies common sense. The CPSIA does not focus on products and materials that have a history of actually presenting a danger. Nor does it present a reasonable method of testing. For instance, it does not exempt already certified materials, or allow inputs, such as the paint, to be tested prior to production.

Rather, the CPSIA would require a wooden animal manufacturer with, say, 400 different animals, to apply paint to them all and then test the same paint 400 times, for a cost exceeding $100,000. As most small companies produce low volumes of many styles, this law could mean the end of diversity in the children's product market.

The US government – champion of capitalism around the world – is making safety regulations so difficult for small businesses that many will simply shut down, and others will exit the market for children's products. If the inventory losses and third-party testing rules do not cripple these companies, the added administration and sheer complexity of the law will.

Required permanent markings specifying the date and location of manufacture on the packaging and product does nothing to improve safety and is unnecessary for small companies. It simply adds a layer of complication and cost. This kind of requirement will discourage businesses from supplying products to the niche, underserved populations, including the deaf, blind, and special-needs children.

In its attempt to address the outcry from small businesses that sell children's products, the Consumer Product Safety Commission (CPSC) has clarified that resale stores can use judgment in distinguishing between products that are high risk versus low risk for lead without certification. However, if resellers "judge" wrong, they are still subject to federal, civil, and criminal penalties.

Meanwhile, the CPSC remains unable to list and focus on the high-risk materials itself, choosing instead to create an incomplete list of possible exemptions such as wood, cotton, and gems, provided that these are in their natural state, free from dyes, paints, finishes, etc. This ignores that lead-free dyes and coloring are available and assumes colorless products are acceptable to you, the consumer.

The broad strokes of this law represent a gross overreaction to consumer anxieties by greatly transcending the scope of the original safety concerns.

Consumers will now be faced with limited choices – and a mass-marketed world of bland and uninspiring products, higher prices, and an unnecessary loss of liberty. The irony is that we are at risk of losing the niche local products that the country turned to during the recall scare of 2007.

The alternative to this well-intended, but poorly thought out legislation is a simpler law, focused on strict regulations of lead in paint and children's jewelry, while exempting other materials that have not posed a danger. Regulated inputs that have been certified compliant should be exempt from redundant testing. These changes will ensure safety and ease the minds of consumers, while supporting creative, unique, products for children.

• Rob Wilson is vice president of Challenge & Fun, an importer of natural toys from Europe.