THE ISSUE:

Signed into law on August 14th, 2008, the Consumer Product Safety Improvement Act (CPSIA) includes updates to existing consumer protection laws and notably imposes strict regulations for the manufacture and sale of “children’s products” (designed for 12 years of age or younger) containing harmful lead and phthalates. The crux of the matter is the new rule about lead, which states that “Children’s products that contain more lead than 600 ppm are banned in the U.S. after February 10, 2009, and the sale of those products can result in significant civil and criminal liability.” Further, the law is retroactive. According to the advisory opinion (pdf) from the general council for the Consumer Product Safety Commission (CPSC), it doesn’t just apply to new products, but rather applies “to product in inventory or on store shelves prior to…February 10th, 2009.”

THE E-COMMERCE IMPACT:

The law has a potentially devastating impact for the¬†online selling¬†community at large (eBay, Bonanzle, Amazon, Craigslist, Etsy, etc. No matter where you sell, this affects you). Sellers of toys, clothing, collectibles, electronics, books and more must consider that any children’s product containing lead above the 600ppm limit is now a “banned hazardous substance”. But how is a seller to know? The cautious seller might avoid such products entirely – which for some might mean closing up shop. Craft makers who hand-make and sell garments, toys, doll’s clothing, etc. may soon have to provide certification of testing that their wares don’t contain lead.

eBay Ink Blog covered the issue last month, publishing an interview with CPSC spokesperson, Scott Wolfson. Mr. Wolfson’s answers hint at the impact to (and possible solutions for) the eBay community, but not all of his information is supported by law or Commission policy. In specific, his claim that a children’s product (a vintage Disney toy was the example), “would not have to be tested for lead if the seller and buyer have an agreement that it will be added to a collection…” is promising but dubious. Sellers might gladly adopt yet another disclaimer to avoid running afoul of the new law, but CPSC guidance documents don’t seem to officially offer this loophole. The Commission has established a set of rules to define a “children’s product”, but nowhere does the Commission provide an exception for collectors.

THE FACTS FOR SELLERS:

Based on the guidance document for Resellers, Thrift and Consignment Stores, “Under the new law, children’s products with more than 600 ppm total lead cannot lawfully be sold in the United States on or after February 10, 2009, even if they were manufactured before that date…The new safety law does not require resellers to test children’s products in inventory for compliance with the lead limit before they are sold. However, resellers cannot sell children’s products that exceed the lead limit and therefore should avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less than the new limit. Those resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.”

THE FACTS FOR CRAFT MAKERS:

CPSIA, as written by Congress, does not differentiate between a commercial factory and a home-based craft maker. The law requires that all “domestic manufacturers and importers certify that children’s products made after February 10 meet all the new safety standards and the lead ban.” The Commission, however, enacted a stay of enforcement on January 30th, 2009, delaying the certification requirement until February 10th, 2010, in the hopes of clarifying the rules. For now, “…crafters, children’s garment manufacturers and toy makers…will not need to issue certificates based on testing of their products…”

THE BRIGHT SIDE:

The CPSC is currently engaged in rule-making, with changes and updates happening every day for the past several weeks. A final rule has been issued with alternative limits for electronic devices. Proposed rules have been circulated that include exceptions for books printed after 1985 and for products made entirely of untreated “wood, cotton, wool, or certain metals and alloys which the Commission has recognized rarely, if ever, contain lead”. More clarifications and guidance can be expected in the future.

As RBH and Scott Wolfson explained in a December post on eBay Ink Blog, the CPSC works with eBay to keep banned products off of the site by using keyword filters. They also remind sellers (and buyers, too) to consult eBay’s weekly recall notice (found on the general announcements board) and the CPSC recall list. (The idea here is that because some form of lead ban has been in effect for many years, if the product hasn’t been recalled yet, it’s probably OK to sell.)

THE QUESTIONS:

  • Had you heard about this issue before today, the date the law goes into effect?
  • Will this change the way you do business?
  • Can we expect an official eBay statement beyond the blog post?

Steve Pinciotti

Steve has sold maybe three items on eBay and refuses to use social media of any kind for reasons known only to him but could probably BS his way through a decent talk about marketing with social media and selling on eBay because he has to live with The Whine Seller.