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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.

rattle.jpg

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.

Dale Dougherty

I’m founder of MAKE magazine and creator of Maker Faire. I am CEO of Maker Media, the company that produces MAKE, Maker Faire and Maker Shed. I am Chairman of the Maker Education Initiative (www.makered.org).


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Comments

  1. domoshar says:

    It is terrifying. The label part was new to me. It is something I first noticed of safety car chairs. I just can not accept it on a rattle…

  2. Anonymous says:

    Thank you so much for this article. It is important that this issue gets as much press as possible. It’s interesting that a lot of smaller, local press seems to have addressed it, but I have yet to see something in the NYT, even if it were just the style section.

  3. GauntDesigns says:

    I work for a large screenprinter and this Act is affecting us greatly. I can only imagine how it will affect cottage industry.

  4. sz says:

    expect more and more of this. this is how the socialism works – it can only grow, increasing the number of regulations and reducing the economic freedom. believe me, i live in europe and i have seen much more of this :-(

  5. luke says:

    @ sz – this is how socialisms works???! WTF??
    I’m sorry but this has nothing to do with socialism at all. You either have a very American view of what socialism is (eg. it’s one step away from communism) or you’re plainly misinformed. This kind of ill-informed scaremongering makes me angry.
    Regulation in the market place is not at odds with your right to earn money in a capitalist / free-market economy. Regulation is essential – and without regulation we end up in the large economic quagmire that we’re currently festering in.
    Re: the CPSIA – it seems like this could be a bad idea, and while on the surface it might seem that the best of intentions are behind it – it seems to me that a flat $4000 dollar tax would increase the wealth of the organisations behind it.
    While not related to the craft market, a similar scheme of accreditation was introduced for the Mobile edition of Java (J2ME) called Java Verified .. which makes developing applications for mobile phone prohibitively expensive (to digitally sign an open source app, so that it can run on a range of cell-phones, could cost upwards of $30,000). As far as I can tell this was introduced to actively stop us little-guys from participating commercially.
    Perhaps it would be better if the _individual materials_ used in crafts-for-kids could be independently lab-tested; if the cost was passed further up the line, making the cost more manageable – while a similar level of safety could still be maintained.

  6. a. says:

    It’s great that you’re picking up this very important topic and bring it onto the table. We need more of this, even though it’s not half as fun as DIY tutorials and cool finds from craft world.
    People should start to look into who is behind market regulations such as the CPSIA, or even, as luke has pointed out, concerning technology. And do take a look into Europe as well. German craftistas and indie designers, small-scale entrepreneurs and home-based e-businesses are facing a huge financial burden by having to comply to the newly amended packaging law, which forces them not only to get a license for packaging (!), but to keep a precise record of what packaging they buy and use when shipping out goods. Non-compliance will be heavily fined.
    In short – what is going on in the minds of those who agree on new laws that leave no room for micro businesses such as those operating in the “handmade” scene? And who is lobbying these lawmakers (hint: definitely not “socialists” – keep it real, people!)? Clearly, infrastructures as we find them right now are not prepared for what has been coined the “revolt of the masses against mass production” – and for a good reason, we won’t see anyone in the respective places change that soon.

  7. Jon says:

    I wrote to Senator Feinstein about this and received a lame response that only included a summary of the legislation and nothing about how she would take action to fix it.
    I question whether she is a friend of small business. (Either that or she needs to get smarter staffers to write her responses.)

  8. bob says:

    Lets see:
    Affix a label stating “NOT FOR USE BY ANYONE UNDER THE AGE OF 18″ (or 21 to you Americans) to said toy.
    Job Done. If its not for Children then it would fall outside the act.
    We have a similar problem in this state if you wish to buy unpasteurized milk or cheese (Don’t talk to me about milk – it’s just an example)
    One manufacturer gets around it it by selling unpasteurized milk as “Cleopatra’s bath milk” (not for human consumption)
    Of course what the customer does with it at home is their own business and totally outside the control of the manufacturer….
    As with all regulations on small step to the right (or left – no real political connotations here) is enough to get around it…
    Thats the problem with professional legislators…. THEY LEGISLATE. And that my friends (along with Taxes) is the price we pay for living in a “civilized” society….

  9. a. says:

    “Affix a label stating “NOT FOR USE BY ANYONE UNDER THE AGE OF 18″ (or 21 to you Americans) to said toy.
    Job Done. If its not for Children then it would fall outside the act.”
    This would be too good (or simple, whichever sounds right) to be true. As a matter of fact, cloaking children toys as adult toys or even as collectibles is contra productive in many ways:
    1: it doesn’t help bringing the real problem behind all this to the lawmakers’ and the consuming public’s attention (the majority of which is being either still not aware or ignorant of the consequences), and as such won’t help finding a solution for this new market that is currently developing.
    2: like with big corporations producing non-kid-safe toys, this would backfire on the whole scene of home-based businesses and cottage industry who produce products for small children. Customers who don’t know better won’t ask why you cloak kids’ toys as adult toys, they’ll just think your company isn’t trustworthy — a bad start if you want to make a positive change in people’s perception, and not a good argument when you want to convince people why these toys are better than those of large mass-producing corporations.
    3: The Act embraces all products that *could* possibly end up in the hands and mouths of children below the age of 14. This leaves enough room for lawyers to sue anyone they deem guilty. I don’t recommend trying this out, unless you have billions sitting in your savings account.
    This said, in its very basic idea, the CPSIA had good intentions, but put into practice, it -and many other laws passed around the globe- reveals that governments and lawmakers are absolutely unable to deal with what is really going on in the market(s) – and therefore they’re not flexible in passing a law that embraces the whole market in a beneficial and supportive way for everyone participating in it.
    P.B. Dear Craftzine-webmaster, what’s wrong with the commenting form? Does it not run under Firefox? I am being prompted that the captcha was entered incorrectly, which is far from being so. I don’t want to have to have an account with a billion blogs and websites only to be able to submit my comments. Commenting should be made easy if you want to involve people in discussions on your website…

  10. Martin H. says:

    I think there is a big difference between this law and the german Verpackungsverordnung. As a small business in Germany, you will certainly have only several ten or hundred kilograms of packaging and no obligation to keep a permanently up-to-date-list of your used packaging. You just have to declare the weight of the different packaging materials (paper/cardboard, plastics, glass, metal) at the end of the year and pay some Eurocent per kilogram. If you buy your packaging material you have to keep the invoice for 10 years anyway. You an simply check your inventory on New Year every year and add the packaging you bought during the last year.
    Short version: As a small business in Germany, you have to sign a contract with one of several recycling companies, tell them within 3 month after the end of a year, how much packaging material you used. Packaging material costs only few Eurosents up to ca. one Euro (metal) per kilogram.
    So there is a big difference in the cost structure and what you can do without help. You can’t certify your own products and you have to certify every product.

  11. a. says:

    Martin, my comment wasn’t a comparison but an addition, and I am well aware about the complexity of product testing. The point about these regulations is that they were drafted with a focus on the big economy, and this reflects how those who regulate under the advice of lobbyists seem unaware of how things really are.
    When the packaging regulations came out in Germany they caused a lot of irritation on many ends (not on the ends of those who would just delegate the dirt job and pay whatever costs, though), and the fact that this extra work adds to overall costs can very well be lethal to a very small business selling handmade products, and here is where your bill is wrong.
    It’s not just adding up the costs for recycling and obtaining the license, but the additional work invested on book-keeping, changing the online shop to reflect current state-of-affairs, and other due work, and this has to be handed on to the customers. 1-people-shows who are well aware of how much they have to charge for their products anyways are not happy about this extra burden, the effectiveness on a better environment yet left aside.
    This is not to say that the regulations as such were bad or that smallest businesses act responsible per se; it is to say that regulations couldn’t care less about smalles businesses and how well they’d be doing under the regulations, because yes – it all comes down to money.
    But not to hijack the comments here, shan’t we.

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