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Financial Lead Poisoning

New Law Hurting Business, Catholic Retailers Say

BY TIM DRAKE

Register Senior Writer

May 24-30, 2009 Issue | Posted 5/15/09 at 5:24 PM

 

COLORADO SPRINGS, Colo. — A new law meant to protect children from lead is, some say, hurting business for many Catholic retailers.

Catholic retailer Ian Rutherford, owner of the Colorado Springs-based Aquinas and More, said that the law impacted his store's first Communion season sales this spring.

Last August, Congress passed the Consumer Product Safety Improvement Act (CPSIA) in response to massive toy recalls. The law, co-sponsored by Rep. Henry Waxman D-Calif., passed overwhelmingly in both houses. It impacts any products sold to children ages 12 and under, including toys, books, jewelry, bikes and clothing.

As of Feb. 10, such items, even if they were made prior to the enactment date, are subject to more stringent rules governing the content of lead and phthalates (chemicals used to soften plastic).

"We were unable to obtain any kind of certification from several of our vendors, so we had to drop a major section of our first Communion line," said Rutherford. "That included first Communion jewelry, bracelets and rosaries, as well as dresses and dress accessories, such as veils and gloves."

According to the law, retailers who do not have the necessary certifications on file for each product sold can be fined. Each violation carries with it the potential for a $100,000 fine.

While other Catholic retailers haven't gone to the lengths of Aquinas and More, Rutherford said he'd rather not run the risk of facing a fine that could bankrupt the store.

"While we didn't expect the [Consumer Product Safety Commission] to wander into our store, some child-safety consumer groups have been entering stores with portable lead scanners, and state attorney generals can also enforce the law," said Rutherford.

Reprieve of Sorts

Because of confusion over the law and how it would be enforced, the Consumer Product Safety Commission (CPSC) issued a one-year stay of enforcement in January, just prior to the law going into effect on Feb. 10.

"The action we are taking today puts in place a limited 'time-out' so that the commission and the Congress can address the issues with the law that have become so painfully apparent," said Nancy Nord, the commission's acting chairwoman, in a written statement.

"The stay of enforcement provides some temporary, limited relief to the crafters, children's garment manufacturers and toy makers who had been subject to the testing and certification required under the CPSIA. These businesses will not need to issue certificates based on testing of their products until additional decisions are issued by the commission. However, all businesses, including, but not limited to, handmade toy and apparel makers, crafters, and home-based small businesses, must still be sure that their products conform to all safety standards and similar requirements, including the lead and phthalates provision of the CPSIA.'

The stay, however, does not apply to children's jewelry makers. Currently, a loophole of sorts exists for consignment stores such as Once Upon a Child and Goodwill. While not required to test the products they sell, they can still be held liable if they sell a product with high lead content. As a result, some consignment stores across the country, such as Goodwill, have ceased selling children's books, toys and shoes.

In addition, attorney general offices in California, Connecticut, Arizona and New York have stated that they intend to enforce the law as it's currently written.

Retail Response

Catholic family business assistant owner Kerri Davison says that even with the stay the law has the potential to close many small Christian retailers or home-based businesses.

"If someone were trying to destroy a small family or Christian business, they couldn't have written a better law," said Davison.

Davison's business, Holy Heroes, until recently, sold children?s religious books, CDs and jewelry. They've since ceased selling jewelry because much of it was made in South America and the Davisons were unable to verify the lead content. The high cost of having each component tested and the requirement that government-certified labs do the testing were part of their decision. There are few certified labs in the U.S., and most of them have been kept busy with large suppliers and manufacturers so have little interest in doing testing for Mom and Pop shops like Holy Heroes.

According to the CPSC, each component of a particular product batch must be tested for lead. Such tests cost hundreds of dollars per part tested.

As an example, Davison described the testing required for their sacrifice beads.

"We would have to test the beads, the string, the crucifix and the carbiner," explained Davison. "Thousands of dollars of testing for a product that sells for $4.95."

"This is an onerous law," she said. "It's overreaching and unnecessary."

One manufacturer whom the Register spoke with said it has spent thousands of dollars testing various jewelry components.

Alan Napleton, president of the Catholic Marketing Network, said that he started receiving telephone calls from retail stores last July, before the law was passed. He described the law as "confusing" and "government run amok." To date, he said he's unaware of any stores that have been fined.

"Congressional leaders are beginning to see the unintended consequences of this poorly written and hastily passed legislation," said Napleton. "They are starting to understand that for stores and manufacturers to comply with all provisions of the act it would place tremendous financial burdens on some of these businesses when many are struggling to survive in a very difficult economic environment."

Some congressional members, such as Reps. Anthony Weiner, D-N.Y., Gresham Barrett, R-S.C., and Sens. Olympia Snowe, R-Maine, and Sandy Levin, D-Mich., have requested hearings and have asked the CPSC to provide common sense clarifications to small businesses regarding the regulation's implementation.

Another organization that tried to fight the legislation was the Home School Legal Defense Association (HSLDA). Members of the HSLDA's federal relations department met with commissioners from the CPSC in early February.

"They assured us that they wouldn't be locking people up for selling curriculum and books, but the law is clear that any products sold to children 12 and younger need to be safe," said Jeremiah Lorrig, deputy director of federal relations with the HSLDA. "They issued a stay and indicated that there could be another stay, but that there will be testing requirements."

While the law doesn't specify books as "children's products," the CPSC does. Thus, any children's books printed before 1986 would fall under the requirements. Those printed after 1986 are considered safe because regulations were in place banning lead from printers' ink.

"We're concerned that Congress would put forth such sweeping legislation without first examining the consequences it would have on their own constituents," said Lorrig. "My hope is that within a year they'll review the policy and the political climate will have cooled so that they can reconsider what products are truly dangerous and deal with it."

Tim Drake is based in

St. Joseph, Minnesota.