H.R. 4040: the Consumer Product Safety Improvement Act of 2008

In August 2008, the U.S. Congress passed a law prohibiting the manufacture, sale or distribution of any children's products containing lead. It will be in force effective Feb. 10. The votes in the Senate and House were almost unanimous in favor of the bill.

Can Americans relax, knowing that their children will be protected from lead in clothing and toys? Perhaps not.

Many retail outlets for children's products are unaware that the law exists. Others are aware of the new bill but do not know how they can comply. Most of the existing inventory at retail outlets, distributors, and factories was fabricated before manufacturing companies could have known about the requirements of the new law.

Children's clothing, toys, and other supplies are often composed of fabrics, dyes, plastics, and metal parts from sources all over the globe. Testing to ensure compliance with the law requires a chemistry laboratory, skilled technicians and a capability to perform x-ray fluorescence or inductively coupled plasma spectrometry.

Consequently, it is expensive to test a completed children's item.

Lead is not a rare ingredient. It is used in a wide variety of production processes. When the expense of testing for the presence of lead is spread over large quantities of paint, fabric, and plastic, the cost impact on any one item manufactured from those raw materials might be small.

However, current understanding of the law is that all products must be proven free of lead, including existing stock. All items for sale after Feb. 10 are considered guilty until proven innocent.

Retail outlets and small manufactures would find the cost of testing their goods to be prohibitive. The alternative is to scrap their current inventories.

Errol Noel, owner of a retail shop named The Toy Factory, replied “I don't know what the impact will be, and that's what so scary. I don't know how to insure that my suppliers are in compliance." Carey Oien, the manager of The Kids Kloset said, “I haven't seen the actual law. I don't know if it applies to nonprofit organizations like ours."


Enforcement of the law is at the discretion of each state's attorney general. Surveys conducted by the U.S. Department of Agriculture in 2006 enabled estimates that the annual clothing expenditure in the U.S. is roughly $400 per child. Total spending is in excess of $50 billion dollars annually.

Rigorous enforcement of the law at every retail establishment would be difficult. However, when a business is found guilty of a violation, fines of up to $1 million or more can be levied.

The situation is difficult for shops that sell used clothing. A single shop may have clothing from thousands of different manufacturers, and the clothing may have been created long before the bill was first considered.

Imagine that Congress passed a law that all cars sold must meet extremely tight tail-pipe emissions standards, effective immediately. Used car lots would have a real problem. Even car dealers holding an inventory of new cars manufactured before the law was passed would be in trouble. However, emissions laws have been written to impact only future car models. A grace period allows for the manufacture and sale of current models. Existing cars are exempt. Meanwhile we have to live with the emissions from older auto designs.

Children's clothing and supplies are more sensitive politically. No legislator wants to go on record as saying that it is acceptable to continue to sell lead containing items for children, even if only for a season while stricter manufacturing standards can be implemented and existing stocks can be sold. The Consumer Product Safety Improvement Act of 2008 contains no grace period. It passed 421 -1 in the U.S.House and 89-3 in the Senate.

Did legislators anticipate the impact of their bill? It appears that they didn't.

As the bill was being processed through Congress, a section required to assess the bill's economic impact was left blank. Congressman Peter DeFazio of Oregon sent a detailed letter in response to inquiries about the impact of HR4040. He attributes the confusion surrounding the bill's implementation to poor management by Bush administration officials, "The bill passed the House by a vote of 407 to 1 as it was considered a common sense piece of legislation that was designed to keep our children safe. Unfortunately the Bush Administration's Consumer Product Safety Commission, which is in charge of drafting regulations in order to enforce the new law, did a poor job of explaining what was expected of retailers and consumers and have written what I believe are overly strict interpretations of the law."

The number of news stories about the law has increased dramatically as the February implementation date draws near. Members of the public, not just business owners, are becoming concerned.

Bethany Fegles, a mother of two small children commented, “I just heard about this earlier this week and have wondered myself what would happen to so many smaller second-hand retailers. Or all the moms selling their kid's clothing on Craigslist. Or all the parents that use garage sales to earn back a little bit of what they spent on all the kid toys/clothes.”

The U.S. Consumer Product Safety Commission web site
http://www.cpsc.gov/ has the latest news updates and answers to frequently asked questions.