I’ve known for a while that one of the key legal challenges to the growth of the DIY segment as a source of innovation is liability law. So-called consumer protection laws have long been used to punish manufacturers who produce defective or harmful products, even if the use of the product extends beyond what the manufacturer intended. In the past year, parents and child-safety organizations have lobbied the US government to enact a law that requires products intended for children to be tested and proven to be safe. That is the origin of the Consumer Protection Safety Improvement Act, slated to take effect in February. Now, what happens when the the very law designed to protect parents and children eliminates a source of handmade products that were designed as safe alternatives? Imagine if food from farmers’s markets was eliminated because they were required them to comply with a set of regulations imposed on the industrial food-processing system that people don’t trust. The effects of this law are not limited to crafters, but all those who are making products large and small. I’ve heard that a number of companies are truly scared by what this legislation could do to them. The following is a column I wrote on the subject for the current issue of CRAFT magazine.
The $4,000 Handmade Rattle
Years ago, Jason Gold was looking for a rattle for his new baby. He wanted something safe and made of natural materials. “I was trying to find a rattle that wasn’t coated in paint or made of plastic,” said Gold. Not finding any, he made a rattle out of wood. Thinking that other parents might be looking for alternatives to mass-produced items of questionable materials, he started Camden Rose, a manufacturer of wooden and fabric toys in Ann Arbor, Michigan. Today, the Camden Rattle sells for $15 through a network alternative retail stores and places like Whole Foods.
This year, Jason Gold thought the economy would be his biggest worry this holiday season. However, it turned out that the 2008 holiday season was the busiest ever for Camden Rose. The bigger worry for Gold has been figuring out if the Consumer Product Safety Improvement Act (CPSIA) will put him and many others like him out of business in 2009. The CPSIA on the surface seems like a good idea, coming as a response to the recall of toys made in China and sold in the US that had potentially harmful levels of lead, phthalates or other toxins. The law’s intentions are good but its side effects are not. Lost in the details were provisions that may deal a serious blow to America’s cottage industries and individuals who make things by hand. This comes at a time when the unemployed and underemployed are seeking creative ways to make a living from home. There are three parts to the CPSIA. The first requires independent testing and certification. “We’ve gone from no certification to the strictest form of certification in the world,” says Gold. “It might cost me $4,000 to test my rattle.” It’s not just the cost of testing. The tests must be done for each component, and for each item, not for the manufacturing process itself. Kathleen Fasanella of Fashion Incubator in Las Cruces, New Mexico said that clothing makers are equally affected. “In the past if you made pajamas, you could buy fabric that the vendor certified as non-flammable,” said Fasanella. “The vendor certificate was enough. With this law, you can’t use a vendor certificate to verify that the materials you used are lead-free; you have to get your own certificate.” She added that this law affects “people who make the nicest things, in small numbers.” She described how a dress maker would have to make two dresses for each new design and send one off to be tested and destroyed in the process. “The law is not tenable,” she said. “It stifles innovation.” Most crafters are upset about testing, but Gold believes the other provisions of the law are just as onerous. “CPSIA requires that you put a label affixed to the item that’s permanently attached to the item forever,” said Gold. “Forever,” says Gold in disgust. “Just like a mattress tag.” The tag must include when it was manufactured, which is a problem for the Camden Rattle because its two pieces, a ring and a ball, are manufactured at different times. Gold says that the label cannot be affixed to an item, and the tag itself must be tested as well so paint is not an option. (He’s looking into laser engraving.) Finally, there’s a cumbersome, time-consuming administrative process. Once you have tested your product, you have to send the certification to the government to put on file; they will send an authorized certificate back to you, which you must send with your product to the retail stores. The stores are supposed to display these certificates but no one knows how that will be done. Gold believes the CPSIA will increase the cost of his products and he will have to produce fewer products. His biggest concern is that stores will no longer carry his products. “Realistically, if it was just me,” said Gold, “I could say that the law doesn’t really apply to me, and I’d ignore it, but the stores that carry my products are required to carry only certified products.” Gold is as worried about the policing as the policy. “Non-governmental parental groups who are set up to enforce child safety laws will be authorized by CPSC to go out and find out if stores are carrying uncertified products,” said Gold. It makes him uncomfortable to think that these well-intentioned groups might assume the role of enforcers. The law goes into effect on February 10, 2009. Rick Woldenberg of Learning Resources has called it National Bankruptcy Day and Fasanella has set up nationalbankruptcyday.com to organize opponents of the law. The timing is particularly bad for those who sell into retail because that’s when they preview new products and take orders. With such uncertainty about this law, no one knows what to expect. Fasanella said that the law was “already affecting the amount of kids’ clothes available for next fall.” She believes that bigger companies will be hurt as well. Gold hopes that the CPSC will eventually listen and come up with a set of realistic fixes such as exemptions for small-run manufacturers and makers of handmade goods. “If the changes happen too late,” said Fasanella, “the law will have hurt a lot of people who won’t recover.” If the goal is to really protect children, then Gold believes the CPSIA will need to be rewritten. “The law focuses on lowering the amount of lead and phthalates, not eliminating them,” said Gold. “I want to produce products that don’t have any of those harmful substances, and I’m being put out of business,” concluded Gold.