A mistake the lead-heads won't fix


We all make mistakes. Most of us are big enough to make things right when a mistake is brought to light.

On the other hand, if you've been told you made a collosal mistake, presented with indisputable evidence that your mistake has created hardships and suffering, asked to take simple steps to fix your mistake, and you still do nothing, then you're without a doubt ... in the Democratic leadership of Congress.

Last year, I introduced you to the Consumer Product Safety Improvement Act, a piece of knee-jerk, feel-good legislation intended to prevent lead poisoning in children. But the law, which passed by near-unanimous votes in the House and Senate in 2008, was written in such a rush following the recall of millions of Chinese-made toys that it sent unintended regulatory shock waves through the already hurting economy.

Lawmakers didn't specify that the act targeted paint, charms or other loose parts that could be easily ingested by small children. They imposed broad, tough new standards for lead content, including costly testing and certification requirements, and left it to the Consumer Product Safety Commission to create enforcement guidelines.

The commission then declared the law applies to every product intended for children age 12 and younger, from wooden toys to shoes, from basketballs to books, from T-shirts to tents. Worse, the commission made the law retroactive, applying the standards to already-manufactured products. Anyone who sells children's products that exceed the new lead-content standards, or products that haven't been properly tested and certified, can face steep fines and prison.

Small businesses have squealed the loudest this year, begging Congress to amend the law and insert a little common sense. Many toy and children's apparrel makers face testing costs that exceed their annual sales. Some small businesses have already closed.

The law has also affected the thrift and resale industries. Earlier this year, the Consumer Product Safety Commission ruled that resellers were exempt from the testing standards (Who would spend $1,000 to determine the lead content of snaps on a used baby onesie worth $1?) but not the penalties for selling newly illegal products. That sent local nonprofit thrifts scrambling to figure out how to comply.

Goodwill of Southern Nevada and the Salvation Army had to institute new screening procedures for donated goods and new training for employees, with the goal of weeding out children's products that have the potential to land them in hot water with regulators.

"It was difficult when it was first put into place and we had to train people to meet its standards," said Steve Chartrand, president of CEO of Goodwill of Southern Nevada. "Some of the rules are not very clear."

As a result, resellers are putting fewer types of children's products on their shelves and throwing out all sorts of donated goods that would have been OK for sale a little more than a year ago. They're being forced to do this at a time when more people are depending on the thrift economy to make ends meet. Nationally, retail sales at Goodwill thrift stores were up more than 6 percent through the first eight months of 2009.

"It's definitely hurt us financially," said Maj. Robert Lloyd, Clark County coordinator for the Salvation Army. "We can't afford to assume liability for knowingly selling a product that could harm a child."

But the biggest problem with the law, as written, is that it deems every single children's product -- even ones that obviously contain no metal -- equally likely to cause lead poisoning. Makers of children's microscopes and children's all-terrain vehicles have informed both the Consumer Product Safety Commission and members of Congress that it's impossible to ingest the lead in their products, yet under the word of the law, their goods are now illegal.

Congress is ignoring them. In September, after months of appeals for mercy from all sorts of businesses, the House Energy and Commerce Committee, chaired by Rep. Henry Waxman, D-Calif., held a sham hearing on the law. He heard testimony from only one person: Inez Tenenbaum, the new chairwoman of the Consumer Product Safety Commission, who said amending the law would be "premature."

The commission has voted down a variety of common-sense exemptions, leading Commissioner Anne Northrop to observe that the CPSC "does not believe there is any (flexibility) written into the law," and that unless Congress amends the law to significantly narrow its focus, "more small businesses will be forced to shut down."

In February, a one-year stay of enforcement on testing requirements will end, and in the process, expose thousands more businesses to the possibility of death by regulation. There are a number of representatives and senators of both parties who desperately want to clean up the mess they've made, but the Democratic leadership is focused solely on its big-ticket agenda. It won't even acknowledge that the lead law needs to be corrected.

If Congress could screw up something this simple this badly, and it still won't fix the law, what hope do we have that lawmakers might revisit the inevitable shortcomings of their incredibly complex health care and cap-and-trade bills?

None.

Glenn Cook (gcook@reviewjournal.com) is a Review-Journal editorial writer.