I had intended to return to the Consumer Product Safety Improvement Act of 2008, a law I find to be of interest as illustrating the perils of hasty legislation in response to media-generated threats, a little later, but as today is CPSIA blogging day, I’ll get to it now.

Short version: This is a law that may wreck thousands of small businesses over a scare in which no one was hurt.  Long version, and how I determine that no one was hurt, follows:

As I wrote earlier, the CPSIA was enacted in response to 2007 voluntary product recalls of certain toys manufactured in China and imported to the United States, toys which were found to contain lead paint.  The offending toys were a set of buckets featuring Thomas the Tank Engine and Curious George, and a magnetic toy made for Mattel and its subsidiary Fisher-Price.  These toys were recalled amid another, more serious scare pertaining to Chinese products, the dog food scandal in which pets died due to toxic additives, similar to the scandal which China itself is now facing due to tainted milk.

One difference among these scares is that no federal legislation has been offered pertaining to pet food, or to milk.  The lead painted toys did lead to a new law, the CPSIA, which requires anyone manufacturing or importing products intended for use by consumers under the age of 12 (we’ll call them “kids” for the sake of this discussion), to engage in costly testing, estimated among various sources at a low cost of $2,500 per lot of products (though I’ve read of much higher estimates), to rule out the presence of lead.  The law as written extends to any product intended for kids, including products which obviously don’t contain lead, such as diapers, children’s books, wooden toys, trapper keepers, crayons, and Hanna Montana lunchboxes.  The probable result, as a number have pointed out, will be the ruin of small and mid-sized businesses, which can’t afford to pay for this testing, and consolidation of the market for children’s products (those who have kids know what a vast market this is) in the hands of a few giant corporations, i.e., the Mattels and Fisher-Prices who started the problem by outsourcing their manufacture to China.

The other difference, the main difference so far as I can determine, is that unlike the dog food scandal and the milk scandal, no one died and no one was hurt in the lead paint scandal.  How do I know that?  I looked around.

I’m well aware of the costs that the CPSIA will impose on small and medium domestic business while our economy is already in the toilet.  What I wasn’t sure of was its benefit.  I’d read, and was pretty sure, that few if any kids were hurt as a result of the Chinese lead paint toy scare of 2007.  I’d passed that on.  But was it true?

Yes it is.  So far as I can tell, there are no reports, whatsoever, of kids suffering injury as a result of ingesting lead paint from the toys that inspired this law.

How does one discover the absence of injuries among a vast, widely dispersed population such as that of the United States?  One can’t prove a negative, but there are a number of places one can look for the positive.  One might examine the records of the Consumer Product Safety Commission itself.  I did.  I looked for records of recalls for lead paint.  There have been a number in the time that the CPSC has had its records online.  In each and every case (and I examined them all), no actual injuries are reported, though manufacturers engaged in recalls are under a legal obligation to pass on such reports.

I looked at the SEC filings of Mattel, which started this mess.  As a publicly traded company, Mattel is required to report on suits against it.  According to its filings, there have been 22 lawsuits filed against the company in the United States as a result of the lead paint recall.  None alleges actual injury.  The suits request reimbursement for the product (usually a toy costing less than twenty dollars), and reimbursement for blood profiles by parents to determine whether their kids’ blood contains elevated lead levels (the equivalent of getting a neck x-ray after a fender bender, even though one feels fine).  None of the suits allege actual physical, bodily, or cognitive injury.  And 22 suits is a pathetic number for a scandal as widely hyped as the Chinese lead paint scare of 2007.

I googled around.  Searches for information about injuries from lead paint in toys lead to dusty old websites such as toyinjuries.com (aka Parker Waichman Alonso LLP), which solicit for clients but don’t report verdicts or settlements.  If kids were hurt by toys containing lead paint, surely the lawyers of Parker Waichman, et. al. would have reported lawsuits and money by now.

I examined Pubmed, a database of abstracts and medical literature, for evidence of case studies or reports of injuries children sustained as a result of ingesting lead paint from toys.  I found nothing, though of course lead ingestion is a serious problem which has a long history in the literature.  Just not from toys.  Usually, a child is exposed to lead by living in a dilapidated apartment built before 1978, and not painted since.  In other words, a housing project.

Which brings to mind another fact.  The CPSIA does not make lead paint illegal.  Lead paint has been illegal in this country for over 30 years, since 1978.  So almost no one uses it, and any company found to use it (almost always by way of import from countries where it isn’t illegal, such as China), quickly recalls the product once it’s discovered.  Even in 2007, the system worked as intended.  A few people are suing to get their money back (Mattel has already offered refunds), or for testing, but it appears that no one was injured, and the products that caused the problem are already off the shelves.

Meanwhile, the small manufacturers that the CPSIA really targets can’t even get the paint that the act guards against.  You can’t walk into a Pittsburgh Paint store, or call any American paint supplier, and say, “Sell me some of that lead paint!”  They’ll say they have none today.  But, as a manufacturer of products intended for kids, whether it’s Christmas ornaments or dolls or diapers or the stickers applied to award winning children’s books, you’re required to test for it anyway, on each lot of products sold, forever.

Or until you go out of business because Mattel can afford the testing, for products it will continue to make cheaply in China, and you can’t, whichever comes first.

The phrase, “throwing out the baby with the bathwater,” refers to ruining good things in an effort to root out the harmful.  But in this case, there hasn’t been any harm that I can see. No kids were hurt as a result of the Chinese toy scare of 2007.  A lot of small businesses are going to be hurt.

All baby, no bathwater.

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