This exercise is important because how we define a children’s product will determine what products are subject to stringent provisions of the CPSIA, including those relating to lead content, third party testing and tracking labels. While our mission is to protect consumers, the CPSIA has given us little flexibility to do that in a sensible way and, as I have written here and here and here, a majority of my colleagues have chosen to ignore what little flexibility we do have under the statute to come up with sensible solutions.
In the current proposal up for a vote next week, we are being asked to make a number of nonsensical determinations. For example:
How should we treat home furnishings?
- A pink lamp on one bedside table in a child’s room is not a children’s product but a pink lamp embellished with a fairy sitting on the other bed side table is. No difference in use but a very big difference in outcome from the standpoint of the maker. How does this make sense?
What about common everyday products?
- Paper clips are not children’s products even if a teacher hands them out to students to clip homework assignments. If that same paper clip, purchased at an office supply store, is packaged in a “hands-on” science kit to help teach a child about how magnets work, it is miraculously transformed. How does this make sense?
What about DVD’s?
- Our proposed rule says that DVD’s may be subject to third party testing because of the content embedded on them. Apparently, “Animal Planet” does not pose a risk of lead poisoning but “Dora the Explorer” does. How does this make sense?
I could go on and on with other strange examples drawn from the proposed rule. We are not required by the statute to put out a rule defining children’s products. We are choosing to do this because we want to add clarity and consistency to a confused process. I fear we are just making the situation even more muddled. The proposal we will consider next week could add a whole new chapter to “Through the Looking Glass.” Lewis Carroll would be proud.