CPSIA Update: Testing Requirements Go Into Effect in February Unless Stay Is Extended
Reprinted with permission of Publishers Weekly
As the children’s book industry approaches the two-year anniversary of the Consumer Product Safety Improvement Act of 2008, which was enacted in August 2008 and went into effect February 10, 2009, it continues to face many unresolved issues.
The most pressing is that a one-year stay of enforcement of the Act’s third-party testing requirements is set to end this coming February 10, even though the Consumer Product Safety Commission has not yet clarified how that testing should be accomplished. “We’re very concerned about that,” says Dan Bach, executive v-p of the Book Manufacturers Institute. “No clear guidelines have been given about what is a reasonable testing program.”
After launching the process of developing testing and certification requirements last December with a working session attended by industry representatives, the CPSC has issued two rule-making documents, which were followed by many comments and suggestions for changes from industry groups. However, it has not issued its final rule yet. Several industries, including the children’s book publishing and printing industries, have petitioned for an extension of another year to allow not only for a final rule to be published but for the industries involved to understand that rule and put systems in place to implement it.
“If the stay isn’t extended, it will be complete chaos, not only for us but for all manufacturers of children’s products,” says Gary Jones, assistant v-p, environmental, health and safety affairs, Printing Industries of America. “We would have to rely on the legislative language, which leaves a lot to be desired.”
“This has been an issue that has been recognized and anticipated by the regulated industries for some time,” says Allan Adler, v-p for legal and government affairs at the Association of American Publishers. “By Thanksgiving it became clear that even if the regulations came out, there would be no time to adapt and comply. Whichever side you’re on politically with regard to the Act, the extension is only a question of fairness now, since the major regulations haven’t been issued.” The stay was one of the main topics of a Senate Subcommittee hearing on CPSC oversight in December.
If the stay is not extended, publishers of novelty and book-plus formats for children 12 and under, as well as some “ordinary” ink-on-paper or board books—including those featuring spot and PMS inks, film laminates, foils, plastic coils, saddle-stitching wire, or accessible non-animal-based adhesives—must be able to show a Certificate of Compliance for each batch of books printed. The CoC is meant to prove that an independent, accredited lab has completed tests to determine that the products contain acceptable levels of lead (100 parts per million as of August 2011).
Children’s books printed after 1985 and consisting of paper or board, process inks, threads, and animal-based and non-accessible adhesives are not required to test, as those components have been deemed unlikely to contain lead; the books still must be “safe” as outlined in the Act. As of last August, all children’s books (ordinary and novelty) must feature permanent tracking labels on the product and packaging to verify product origin.
In practical terms, publishers of toy-like book-plus and novelty titles already have testing procedures in place—many retailers, especially on the mass/discount side, have their own stringent requirements—and most say they are as ready as they can be, given the lack of direction from the CPSC, for the requirements to go into effect. But publishers of ordinary paper books have never been required to test. “We were not regulated prior to CPSIA,” Adler points out.
Another issue that remains open is the fact that books printed in 1985 or earlier are also included under the law, and testing these older books is impractical and prohibitively expensive. Libraries and sellers of used children’s books continue to lend and sell older books and have been told by the Commission that they do not need to test, although they could still face liability under the Act as it now stands. “The Commission has said that libraries are not the target of the Act, but we would like this to be resolved,” says Emily Sheketoff, executive director of the American Library Association’s Washington office. “Libraries are not interested in endangering children, but we’re also not interested in endangering their minds by not having books available.”
The industry continues not only to lobby the CPSC to exclude the remaining components of books from the testing requirements, but to push Congress to change the law. For example, it could exclude books entirely due to the low risk of lead contamination or give the CPSC more flexibility in granting exceptions. “The legislation needs to be fixed to give the CPSC the authority and comfort to exempt products in certain cases,” Jones says.
The new Republican-majority House of Representatives is likely to be more open to changing the Act. Rep. Jeffrey Fortenberry (R-Neb.) recently reintroduced House Resolution 272, which would amend the Act to exempt ordinary children’s books and printed materials. The proposed amendment was assigned to Committee on January 12. “We would be supportive of that,” Adler says of the amendment, “but we have no great expectations that it will pass.” He and other observers note that the Congress may be more apt to make legislative changes that improve the Act for all the myriad industries involved, rather than moving to exclude specific products.
Earlier this month, House staffers met with industry groups about the CPSIA. The staffers represented the new Republican members of the House Committee on Energy and Commerce, which oversees CPSIA and is now headed by Fred Upton of Michigan, as well as staffers for former Chair Henry Waxman and Mary Bono-Mack, incoming Chair of the Subcommittee on Commerce, Manufacturing and Trade. If the House were to revise the Act, many observers believe the Democrat-controlled Senate might follow suit.
However, the House Committee has stated that other issues under its jurisdiction, notably health care, are priorities, meaning it may be difficult to get the CPSIA on the agenda in the near future. In addition, the timing of any hearings on the Act would likely depend on when the Commission issues its final rule on testing, as well as whether the stay of enforcement is extended and for how long. “Having a hearing on the implementation of the Act probably wouldn’t make sense until we have the final rule on testing and certification and until we know the time frame we will have to adapt and comply,” Adler says.
For more on the history of the Act and its ramifications for book publishers, click here.