Dear Representative Harman,
Congratulations on a successful 2008 election season. With your help, I am confident our nation will be steering once again on a prosperous course.
I am a designer and supplier of sewing patterns primarily for children. I am writing to you as a private citizen, but also as a member of a community of entrepreneurs, artisans and parents, who make handmade items for children for sale, primarily clothes and toys. I am writing to you, because one piece of upcoming law will steer our endeavors entirely off course. I am speaking specifically of the Consumer Product Safety Improvement Act or CPSIA. The creative livelihoods of thousands of cottage-industry entrepreneurs and their suppliers are threatened with extinction when the CPSIA goes into effect on February 10, 2009.
CPSIA is designed to regulate the amount of lead and phthalates found in products manufactured for children. The law specifically requires that all products be certified through a third-party testing laboratory and labeled with an extensive tracking label. Failure to provide a certificate from an independent accredited testing authority and/or the tracking label can result in hefty fines and penalties.
As written and currently interpreted, I feel the law will not serve the public good: Vibrant enterprises will fail and consumers will face higher prices and less choice. The important burgeoning roster of small manufacturers, including those who specialize in ecologically friendly products and uphold fair labor practices could very well whither and die. In less than 3 months, the entire manufacturing market for children’s products could become oligopolic.
I am confident in saying I speak for my community when I say we agree with the intent of the law. We, as parents, strongly believe our children should be protected from the dangers lead and phthalates pose children’s developing minds and bodies. Since becoming aware, I am quite astounded at the amount of lead found in zippers and buttons. I applaud the strong stand our government is taking against the heretofore laxness toward lead and phthalate contamination by manufacturers of children’s products. The challenge for manufacturers and consumers alike, however, is in the implementation.
As a matter of introduction, the handmade cottage-industry sales venues are primarily online marketplaces, such as Ebay.com and Etsy.com, as well as independent retail. Often, the handmade market provides a Petri dish for new talent and springboard into commercial manufacturing. This community contains many stories of good old-fashioned American boot-strapping enterprise. Making handmade children’s items affords many members of our community the opportunity to supplement the family income while remaining at home with young children. There currently are no independent statistics to support the size of this market, however, I do believe we would be astounded at the amount of bread that is won for families through this specific entrepreneurship, while primary breadwinners are serving overseas in the military, have been laid off, or have been required to take hefty, recessionary pay and benefit cuts. This community represents a deep and diverse cross-section of America. It is comprised of caring, loving, creative and successful entrepreneurs from all walks of life, who represent the best of America.
As written, there are parts of the law, which we feel require revision, in particular:
• Unit testing
• Tracking labels
• Scope of producers and manufacturers
Unit testing requires that the finished product be tested and certified for lead and phthalates. It matters not, if the item is manufactured entirely of certified lead-free materials, the finished product requires its own testing. It stands to reason that a finished dress sewn of certified lead-free fabric, stitched together with certified lead-free thread, and held in place with certified lead-free buttons would be itself lead free. However, selling this dress without first testing the finished sewn dress for lead and providing certification for testing the finished sewn dress would be illegal and be considered “hazardous banned substance” according to the CPSIA. Logically, if the components are already tested lead-free, the additional testing of the finished garment is not only expensive, but clearly redundant. From a regulatory standpoint, I imagine it is certainly easier to go after the closest link in the value chain. However, due diligence can be served, surely, if the manufacturers of the components provide certification for legal lead content. A simple compromise can be met, which both protects children from lead and our businesses. Instead of unit testing for lead, we suggest component testing on the part of the inputs manufacturers. A textile mill could be inspected and certified against lead much the way a food plant is inspected and certified. The cost of this conformity could be bore across the entire customer base of the mill, adding pennies, not tens of dollars to the final retail price of a garment. In Europe, it is common practice to maintain "Öko-Tex" standards in textiles, which is then commonly used for children's products.
Another aspect of the law, which is troubling, is its retroactivity. As written and presently interpreted, anything without the required certification and tracking labeling would be deemed hazardous, whether the item poses an actual threat or not. In other words, “guilty, until proven innocent.” On an industry level, this would make the hundreds of millions of dollars of current inventory unsalable in the United States. On the level of the consumer, retroactivity would eliminate entirely the second-hand and thrift markets upon which many struggling families depend. Furthermore, part of our cultural heritage may be lost, as, technically, any sale of vintage and collectable toys and children’s clothes would be the sale of “hazardous banned substance”. Imagine if, from one day to the next, all the inventory of your family business, Harmon Kardon, was deemed hazardous and banned, not because of any real hazard, but rather because of a lack of proper accredited testing and tracking labels. The retroactivity of the law appears unique to this legislation: If safety legislation were applied retroactively on, say, automobiles, I doubt there would be any automobiles older than five years on a used car lot. Classic and antique cars would be, quite literally, a thing of the past. And where do we draw the line? Should we prevent the sale of homes built before 1972, the year when lead in house paint standards were implemented, to families with children under the age of 12? It could be argued that bedrooms in older homes for sale are marketed and intended for children.
Micro vs. Mass Producers
As far as mass manufacturers go, only the largest manufacturers with the greatest advantages of economy of scale and negotiating power with the limited number of testing facilities would survive this law. Initial estimates for lead testing of finished clothing lines of 10 pieces in three color-ways (a very small line, the type of clothing line a specialty or start-up brand may produce) start at $30,000. One estimate has close to 70% of the companies producing children’s clothing to have 20 or less employees. It would follow that specifically this 70% of the children’s clothing industry would dwindle. Because of the boon in testing requirements, the law of price elasticity tells us that increased demand with limited supply of accredited testing facilities will increase prices charged for testing. Lead testing for each individual garment produced is a prohibitive cost factor for small manufacturers. And, as made mention, for the handmade market unfeasible to the point of impossibility. A single clinical lead test costs presently around $70. Considering that a very simple garment has three separate material components, that would equate to $210 in testing for a pair of trousers we would hope to sell for $50. Following Bane’s Structure-Conduct-Performance paradigm, only a few large manufacturers will remain. The legislation will create an oligopolic structure of manufacturing. It will limit consumer choice while increasing consumer prices. The market structure will be conducive to price gouging. Come February 10th, families will face less choice, higher prices and no second-hand alternatives.
The requirements of CPSIA, the clinical testing of an individually made toy or clothing article is no more feasible than certifying against enterobacteria in every cupcake the local baker bakes. For cottage industry, home-based handmade items, I can imagine a complete exemption from clinical testing. If an artisan can prove due diligence, for example, through use of a home testing kit and posting of actual test results on his or her Web site, I believe the public interest would be served.
I am confident with a bit of revision to the CPSIA, our children’s safety can be assured and our livelihoods may remain.
I would like to note that the greater portion of makers of handcrafted toys and clothes began their enterprises in reaction to the poisonous, polluting habits and questionable labor practices exercised by mass producers of children’s products. These handmade items for the next generation are the product of a higher consciousness of what exactly is being used, how and why. It will be sadly ironic that only the large mass manufacturers will have the resources to afford and the access to testing as required by this law. It could very likely be, that the heretofore worst offenders will ultimately benefit the most. Already, the numbers are dwindling: Three of the highest quality, most ecologically friendly manufacturers of children’s products, which have won many, many coveted design and education awards, the German companies HABA and Selecta, have announced they will no longer export to the United States. This is a loss for our children. This law will eliminate competition for the mass producers, as well as eradicate the vibrant and worthwhile enterprise of independent creative economic endeavor. I am confident in saying that the handcrafted children’s enterprises is in no way afraid of testing—go ahead: Test our products any which way you like—it is simply that we cannot afford the testing, certification and tracking required by this law.
On a side note, out of curiosity, I purchased home lead testing kits and tested many of my fabrics. These fabrics are mostly milled in Southeast Asia, some come from mills in Spain and France. Some of my material is vintage, from the 1940s and older. Some is organic. Some is milled according to the Öko-Tex standards. I dabbed the testing medium on some 50 different fabrics altogether. Admittedly, my testing is not clinical nor quantitatively relevant. I tested the fabric to satisfy my initial curiosity and concern. After all, most of my fabric will likely find its way next to the skin of my own children. Nonetheless, as not one of my fabrics tested in the least bit positive for lead, I wonder if this legislation is necessary to this degree for most textile products for children.
I welcome the opportunity to speak one-to-one with you or someone in your office. I can also arrange an Internet chat with many members of our community.
Thank you in advance for reviewing and considering revision of the Consumer Product Safety Improvement Act.