CSPIA – Treatment of Resale Goods under the Waxman Amendment

The new Waxman Amendment provides an arcane and inadequate resolution of the longstanding complaints about the treatment of resale shops and resale goods under the CPSIA. The amendment adds a new provision, Section 101(b)(3), to address the resale issues.

This short provision has a lot going on:

a. It only applies to lead restrictions. The exceptions for resale goods do NOT apply to the phthalates ban. This means that used toys are unlikely to reappear in resale shops. It also means that anything possibly affected by the phthalates ban, including certain clothing and childcare articles, will be dangerous to sell in resale shops.

The legal niceties are of little import here – these low revenue stores won’t go near trouble. Will they know what’s okay to sell and what’s not? Probably not. Of course, the CPSC could always put out a new guidance brochure for them – something to look forward to!

Arguably, the inability of the Dems to give a clean waiver to the resale industry means that the resale exemption grants little relief in practical effect. That’s my belief, at least. If resale shops do not feel comfortable that the responsible administration of their businesses will keep them out of harm’s way (including being free of the possibility of bad publicity), they are likely to stay out of the market for children’s goods entirely. Resale stores don’t have legal departments . . . . [Who knew?!]

b. The definition of a “used children’s product” is quite interesting:

“The term ‘used children’s product’ means a children’s product that was obtained by the seller for use and not for the purpose of resale or was obtained by the seller from a person who obtained such children’s product for use and not for the purpose of resale.”

This obtuse language is intended to forbid the bulk resale of merchandise by inventory liquidators while permitting charity or consignment sales of children’s product. “For profit” resale shops will also be snagged on this language.

The origins of this language is presumably Commissioner Bob Adler’s odd Solomonic recommendation that charity shops be allowed to sell used clothing but not “for profit” resale shops.

The new definition is confusing because of the peculiar word “obtain”. There is no question that under this provision, you cannot “obtain” children’s products for the purpose of resale. Does this restriction apply to donated goods? Probably not because the legislators presumably believe you don’t “obtain” a donation for a particular purpose. Of course, that’s a fiction – do you think the Salvation Army accepts donations of children’s products with no purpose in mind? Could this language be a backhanded way to approve the distribution of donated goods for free but not for a nominal price? Possibly.

Would this limitation apply to consignment sellers who never take title – do they actually “obtain” the goods? Consignment sales may be okay but no doubt some factual inquiry will be required, a nice case-by-case analytical process to keep the CPSC busy! Ebay resellers and “for profit” resale shops are almost certainly not given relief by this language. The Resale Roundup is not in danger . . . .

The asserted distinction between a reseller of donated goods (a so-called charity shop), a consignment store and a “for profit” resale shop is flimsy and patronizing, in my view, reflecting a patrician view of society and the needs of the “lower class”. As I have explained in the past, the issue should be about safety, not compassion for the impoverished. Is it morally permissible to give dangerous products to children because they are poor? Please, don’t insult my intelligence. If the goods are safe, sell them – and if they’re not, throw them away. It has nothing to do with “needy” kids. This is yet another case of Dem legislators being unwilling to take a reasonable stand on what is and what is NOT safe. They are apparently willing to sacrifice the resale industry to their lack of courage.

c. As if the foregoing didn’t prove that the bill’s authors live in La La Land, the definition of “used children’s product” has several exceptions, namely children’s metal jewelry, painted children’s toys, children’s products comprised “primarily” of vinyl and any other children’s product later identified for this list by the Commission. I guess the charity shops are supposed to keep their eyes peeled.

So apparently the idea is that resale shops can get back into the children’s product business except . . . except . . . except . . . . The simple relief these shops need has been denied in favor of new uber complexity. To the intended beneficiaries of this “relief”, complexity alone will make the law unintelligible or at least unmanageable. Despite the “good intentions”, the effect of the relief will be moot – in other words, nada.

You should be OUTRAGED about this situation. The very FACT that this Dem-controlled Congress has been sucking its thumb over this issue for TWO YEARS, through two cold and snowy winters, is a national embarrassment. Frankly, it more shameful than that. When the Dems finally worked themselves into action, this is the best they could do?

The persistent inability of the Dem Congress to act sensibly on this issue is both demoralizing and illuminating. This situation is the Dems’ handiwork and yet, the disruption of this market affects the neediest Americans, and among them, the youngest and most vulnerable. Quite a departure from Democratic Party traditions. Not only is access to kids’ warm winter clothing impacted, but so many other important products are embargoed, from baby items to educational products to whathaveyou. And even though the needed goods are plentiful, the CPSIA made it prohibitive to offer them for sale at a low price. Too bad, Poor People!

The poor don’t deserve to live in the anti-economy just because the Dems have a phobia. The fact that the Dems can’t apparently empathize with people who really need their support is so shocking.

I hope you won’t support this bill regardless of its impact on you unless it gives real relief to those in need. If we are really a community, we must DEMAND true relief for the resale market. It’s time to take a stand against a stubborn, morally-numb, self-justifying Dem Congress.

Read more here:
CSPIA – Treatment of Resale Goods under the Waxman Amendment

CPSIA – More "Kudos" for CPSC’s Resale Roundup Program

The Atlanta Journal-Constitution published a nice article on the noxious Resale Roundup entitled ” Garage Sales Could Land You In Jail “. Apparently, I am not the only one who sees something dark in this PR blitz-driven program designed to root out recalled items from resellers in stores and online. As pointed out by one of my commenters, the real issue for regulators in the resale of recalled items is not the onesies and twosies at resale stores or Craigslist.com – it is the inventory liquidators who might be pedalling large volumes of these items. Of course, if there are items of special concern, like a particular recalled crib, then the CPSC should invest in educating (not terrifying) the resale outlets to keep them off the market. The presumption that members of the business community cannot be trusted to work with a well-intentioned agency with realistic goals is a sad reflection of the current anti-business atmosphere that the Pelosi-Waxman-Obamites are fomenting. However, the Resale Roundup is exactly the kind of grandstanding likely to become a favorite trick of the “new” CPSC. After all, promoting their “vigorous” enforcement of the CPSIA to a rabid media and equally rabid Democratic majority leadership seems to be a major objective of the agency nowadays. The supposed “crisis of confidence” of the American public is the stuff of their press releases, not reality. It’s ironic, then, that the CPSC seems to be annoyed by my observation that rocks and fossils need to be tested for lead and sharp points under the new law. You’d think they would be proud of this as it is required as part of a vigorous enforcement of their nifty new law. Yes, if I sell rocks to schools or as part of an educational toy, these natural materials are subject to the same excessive safety rules as injection-molded toys or painted wooden trains. So we must pay a lot of money to test rocks for “safety”, and in fact, have actually had to redesign products when a test report came back with an idiotic “fail” for sharp points. [These test reports are doubly infuriating because natural materials vary piece to piece. Testing a sample is no indication of the compliance of rest of the units - you would have to test each one to know for sure that they all comply. But the law wants us to get the little piece of paper, so we buy the little piece of paper.] Find me some mica or fool’s gold without sharp points, please. Nah, let’s just learn as much as possible from smooth stones good for skipping. With all this in mind, I suggest that the CPSC take the opportunity to start a new program called Residential Rock Roundup. Why draw the safety “line” at rocks that are sold to schools or as educational toys? Frankly, most rocks are found not in boxes on store shelves but on the ground. I know that’s shocking, but it’s true! Surely those plentiful rocks present a much greater risk of childhood lead poisoning or sharp points than our boxed sets. As Rachel Weintraub of CFA has instructed us, it is “absurd” to suppose that we can be sure about anything without testing. And, of course, you can’t be too safe, either. I think the CPSC should send its newly-expanded cadre of field inspectors out into the neighborhoods to gather up and test every rock they can find. Some rocks may also fit into a choke tube and if suitable for children under three, would need to be impounded to keep kids safe from choking hazards. Only an expert like a CPSC field inspector would know which rocks present this kind of deadly risk. No doubt this kind of outreach will impress everyone and demonstrate the CPSC’s commitment to keep kids safe, so so safe. Now that I have learned that rocks and fossils may cause lead poisoning (the victims are presumably the same kids chowing down on rhinestones, tasty!) or might cause lacerations from their sharp points, I do not know how the CPSC can tolerate rocks littering the United States that have not been tested. Perhaps the CPSC should also “sequester” some national parks deemed too “rocky” and therefore a danger to children. I also hope the agency will call for all Americans to voluntarily send their rocks in for testing – just to be safe. If you can think of some other programs that the CPSC should start – to keep us all safe – feel free to leave a comment!

Go here to see the original:
CPSIA – More "Kudos" for CPSC’s Resale Roundup Program

CPSIA – Washington Times Trashes CPSC’s "Resale Roundup"

THE WASHINGTON TIMES Thursday, September 3, 2009 EDITORIAL: From yard sales to jail yards When federal agents can swoop down on your personal garage sale and arrest you for selling the wrong old doll, this is no longer the land of the free. Yet just such a scenario is possible because of a campaign called Resale Roundup, which stems from last year’s jobs-destroying Consumer Product Safety Improvement Act.

Excerpt from:
CPSIA – Washington Times Trashes CPSC’s "Resale Roundup"

The CPSIA Shoves the Poor Off a Cliff

Deputy Headmistress has been kind enough to let us cross-post her personal story. The original and her other knowledgeable and helpful posts about the CPSIA can be found on her blog The Common Room.

In 1992 we had three little girls, ages 2, 8, and 9.  My husband was serving out his enlistment in the Air Force, and I was a sahm.  You may have heard rumours about how little enlisted men get paid.  Those rumours?  They are mostly true.

We weren’t seeking adoption at all, but we heard of two little girls who needed a home together, and we just couldn’t come up with a good reason to say no.   One of the children was severely handicapped, and it was unlikely anybody would take on both of them (nearly 4 and 6 at the time) because of the severity of those disabilities. The birth-mother did not want them separated. And so, over the objections of everybody sensible that we knew, we opened our home to this unplanned blessing.

Unplanned?  Surely, of all the ways to add to a family, ‘unplanned adoption’ doesn’t make much sense- how is that even possible?  It’s funny to call an adoption unplanned, but it really was. What little planning we were able to do came to naught. We were supposed to take the children for weekends over a period of a few months so they could get used to us.   On the Wednesday before the first weekend visit, the birth mother telephoned and called off the adoption.  We notified our friends and relations.  The following day she called and asked the caseworker what time we were picking the girls up.  The case worker asked her what had changed. She had her reasons, and I won’t go into them here, but she did have their very best interests at heart, so the caseworker gave her a time.  And then she dropped a bombshell. “I want you to come and pick them up tomorrow,” the birth-mother said, “but not for a visit.  They need to go to their new parents now, and not come back.”

So… we went to bed with three children and the next morning suddenly gained two more children who came to us with nothing but the clothes on their backs and some immediate and distressing but treatable medical problems, and some longterm and severe medical problems- again, just two weeks before Christmas. We had no clothes for them, no beds, no presents; nothing was in readiness for them, except our hearts (and even those needed some sprucing up). (If you are interested in the longer version of our adoption story, see here.

They came on a Friday.  We went shopping on a Saturday.  Where did we go shopping?  Thrift shops, of course.  We had an immediate and urgent need for clothing, toys, and bedding for two new children, and we lived on an enlisted man’s salary.  It was only two weeks before Christmas.  The thrift shop enabled us to fill the gap between our income and our needs.

We dressed our five girls from thrift shops, consignment stores, and yard sales over the next several years.  Now they dress themselves largely from the same sources- ‘new’ clothes are supplementary.  Not only does this help their budgets, but it also is a culturally and environmentally beneficial practice.

Clothing, books, and toys purchased from thrift shops do not come with all the extra external packaging that new items do.  They are bagged in used bags donated by the public.  They arrive at the thrift shop instead of at a landfill by means of donations.  Many times stores will donate unsold inventory to thrift shops.  These are items that do not contribute toward further burdening of landfills.

Thrift store shopping is culturally beneficial as it teaches children thrift, and is a direct reproach to the consumer oriented materialism of our culture.

Thrift store shopping benefits charities- most thrift shops are run by and for charities and provide job training and other support to those in need.

And thrift store shopping directly benefits the poor- thousands of others, as we did, fill the gap between what they make and what they need by shopping for necessities such as warm coats, hats, boots, snowpants, hats and scarves at thrift shops.   Boots, bikes, and balls can be purchased used anywhere from 1/2 to about a tenth of their price new.  The impact of the CPSIA on the poor is devastating.
One reason for this legislative blind spot, I believe, is that politicians and special interest groups like PIRG and Public Citizen have little understanding of what it means to have no margin of error.

And this is important to remember- when you are poor the margin for error is so very, very thin that the consequence of what seems to some to be a very small error in judgment or very small increased cost due to poorly thought out legislation such as the CPSIA is disproportionately large. Even people who are just barely financially comfortable sometimes just can’t understand how thin that margin of error is. The poor are skating slowly and shakily on razor thin ice. The smallest mistake, theirs or somebody else’s, can send them plunging into life threatening icy waters. You very likely make exactly the same sort of foolish decisions in your financial decisions on a regular basis- but you have a larger cushion to protect you from irresponsibility, whether it’s your irresponsibility or that of legislators who pass unread bills or pass bills without hearing from ALL the stakeholders.

When you are poor, there are no margins. You can’t take money out of the budget in one area and apply to another because there are no surpluses in any area.  There may not be even be a budget.

Being forced to buy a brand new winter coat for your child because thrift shops have had to send all their used coats to the landfill in response to the CPSIA can cause far more devastation for lower income families than the complacently comfortable can imagine.  For those who live precariously from one small paycheck to the next, that legislative error might result in having to choose between warm clothes for winter and having the power turned off or not being able to buy gas for the car that week. It might mean an overdraft at the bank, which will then cost more money as the bank adds an overdraft charge, which then means other checks bounce, which means more overdraft charges.

To the complacently comfortable, this sort of scenario seems overly dramatic, but that’s because they haven’t lived there, and they don’t know what it’s like.  We do. We’ve lived out of an ice chest for three months because we couldn’t afford the deposit to turn on our electricity.  I’ve been reduced to tears when the only food in the house was two eggs, and I dropped one and broke it.

Our thrift shop charges five dollars for winter coats, good winter coats.  If they have to send those coats to the landfill and poor families have to buy brand new coats, we’re looking at a coast increase of at least 75 percent imposed on the families least able to bear it, and their children will be no safer.

The CDC says that on a scale of 1 to 10, the risk to children of lead poisoning from books is maybe .05- that is a rhetorical way of saying nil.  No children I have ever heard of have had an increase of lead blood levels from the zippers on their jackets.

Because I have lived it, the poor to me are very real, living, breathing people, with real flesh and blood children who will be immediately harmed by the impact of the CPSIA as it is written.

To legislators and the special interest groups who pushed this bill through, the poor appear to be an abstract concept, useful for exploitative purposes, as poster children for pet causes, as tools for emotional manipulation and rhetorical propaganda. And that is why they shrug over the reality that they have chosen to impose a very real and immediate harm to poor families by quadrupling clothing expenses for their children in order to avoid the negligible at best and utterly unproven risk of increased blood lead levels in the zipper pull or snaps on a ten year old’s coat.

Thrift and Consignment Shops Ponder How to Get Lead Out (Salem, MA)

Many resale shop owners are still confused with the law as we learn in this Salem News article:

More than a month after Congress passed a law prohibiting shops from selling children’s products containing high levels of lead, local thrift store owners are still fuzzy about the rules.

The Consumer Product Safety Improvement Act, which took effect Feb. 10, warns small businesses, thrift shops and manufacturers to make “sound decisions” about the products they are selling for children younger than 12. Items as small as buttons and beads, children’s toys and books, child care articles, and clothing are covered under the new law.

Herein lies the confusion, said Liz Moore, owner of Children’s Orchard in Danvers.

Click here to read the entire article in The Salem News.