Sarah Furstenberg, owner of Clover Toys in Ballard, worries that many of her suppliers won't be able to afford to test the toys they make under stringent new standards.
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TOY SAFETY AT A GLANCE
Mark Your Calendar
Feb. 10: Children’s products can no longer be sold if their lead content exceeds 600 parts per million, or more than 0.1 percent of certain specific phthalates.
Aug. 14: The total lead limit in toys and other products sold in the U.S. drops to 300 parts per million.
The Delay: Manufacturers Get a Reprieve Manufacturers have an additional year to test and certify that children’s products meet all new safety standards. Retailers don’t get the same break – they have to quit selling toys that don’t meet the new standards now. The penalty if they’re caught selling banned products: fines of up to $100,000 per violation.
What about Second-Hand Stores? Sellers of second-hand children’s products, including thrift stores and consignment stores, are not required to certify that toys meet the new lead limits and phthalates standard. But they still can’t sell children’s products that exceed the lead limit. They’ve been told to avoid likely violators, unless testing or other information shows the product meets new standards. Resellers that do sell products in violation of the new limits could face civil and/or criminal penalties.
Be Diligent Check the Consumer Product Safety Commission's Web site for the latest information on recalls: www.cpsc.gov.
Retailers Scramble to Make Sense of New Toxic Toy Rules
Melanthia M. Peterman
On any given day, the tight quarters at Clover Toys are packed with parents scanning shelves and racks crammed with books, clothes and, you guessed it, toys. The long, narrow shop in Seattle’s Ballard neighborhood offers a treasure trove of many natural, handmade items, like wooden cars, trucks and dolls, as well as German and Swiss art supplies – all toxin free.
You might think the droves of customers drawn to this creative and colorful inventory would make for one happy owner, but Sarah Furstenberg is frustrated.
She and other Seattle-area toy merchants are trying to make sense of and meet new federal rules limiting the amount of lead and other toxins in children's toys, books and accessories sold in the United States. A last-minute change on Jan. 30 by the U.S. Consumer Product Safety Commission gave manufacturers and importers another year to meet testing and certification requirements. It also allows more time for the feds to provide guidelines on how testing should be done.
Retailers, however, still must comply with the law, which took effect Feb. 10.
Rather than immediately pulling inventory, Furstenberg is relying on certification letters from all of her vendors to show that toys in her store meet the new requirements.
“I don’t carry anything that I really don’t think will pass (inspections),” she says.
A few miles away at Top Ten Toys in Greenwood, owner Allen Rickert has pulled some of his inventory – anything he thinks might not pass inspection. He’s also been asking manufacturers to give him written certification that their products are up to code.
He’s already spent more than $5,000 testing just a fraction of his stock. He says he can't afford to test everything on his shelves, so he'll keep any certification letters he’s received from manufacturers handy until he gets better guidance from the government.
Recall after Recall, Then Congress Gets Tough
Congress adopted new rules, and then-President Bush signed them into law late last year, after a bevy of toy recalls. More than 550 toy recalls were issued in 2008 alone. All told, some 8 million toys were ordered to be pulled off store shelves nationwide.
One major change was that all materials in toys – the paint, finish, plastic or metal – needed to pass independent, third-party laboratory testing for lead. Previously, regulations required that only surface paint be tested. If ingested or inhaled, lead has been found to cause brain damage, learning disabilities, and behavior problems. In large dosages, it can be lethal.
The law also prohibits three types of plastic-softening phthalates – di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP) and benzyl butyl phthalate (BBP) – and temporarily bans three others: di-isononyl phthalate (DINP), di-isodecyl phthalate (DIDP) and di-n-octyl phthalate (DnOP). Research has shown that phthalates can interfere with the endocrine system and may cause reproductive problems.
If manufacturers run afoul of the new rules – which won’t apply to them for another year – they’ll face maximum penalties of $15 million per violation, up from $1.25 million. Retailers, however, still can't sell any products for children ages 12 and younger with lead levels totaling more than 600 parts per million.
The regulations are retroactive and will apply to toys, clothing, books and more made before the February deadline. The rules get even tougher on Aug. 14, when the total lead limit drops to 300 parts per mission. It will drop to 100 parts per million in 2011 unless the Consumer Product Safety Commission finds it is not technologically feasible.
Some local businesses say that timeline is unrealistic because smaller retailers don’t sell their products as quickly as their mass-market competitors do, which means they could have to toss hundreds of thousands of dollars worth of merchandise that won’t meet the new regulations.
“I'll be out of business,” says Valla Wagner, co-owner of Teaching Toys and Books in Tacoma. Like Furstenberg, Wagner says the reprieve that the government gave manufacturers changes nothing for retailers. If anything, it makes the law more awkward.
“Since manufacturers don't have to test, or provide us with certificates of compliance, we have less information about what is safe and what is not,” Wagner says.
Rickert worries that if small manufacturers go out of business, then the mom-and-pop retailers will lose unique merchandise. This, he fears, could lead to a “homogenization of the toy industry.”
If toy sellers, including thrift and consignment stores, break the new rules, they could face fines of up to $100,000 per violation. The Consumer Product Safety Commission recommends that retailers avoid selling products likely to contain lead – such as jewelry, vinyl books or other soft, plastic toys – unless they have testing or other information showing the product meets new standards.
Wagner already has many of the certificates she needs to keep her toys on her shelves, and expects most of the companies she deals with will provide compliance letters, even though they are not yet required to.
“Any company that wants to sell to us will have to have test results, as it is the only way we have to protect the children who shop here and fully comply with our responsibility under the law,” Wagner says.
The State Got Tough First
Last year, Gov. Chris Gregoire appointed Wagner to serve on a task force assembled to advise her office and legislators as they worked to come up with a state law banning toxic toys in Washington. (This past spring, Gregoire signed what lawmakers touted as the toughest toxic-toy law in the nation, but the federal law Congress later passed included a provision preempting state and local laws.)
Wagner understands why many of her peers are worried and somewhat confused. The new federal regulations – 63 pages front to back – don't outline exactly how retailers are expected to comply, Wagner says, especially with regard to toys made before the new law and prior to new testing guidelines.
“There's no way to go back to the manufacturer for test results because that test didn't exist,” Wagner says.
The Washington Toxics Coalition, an environmental advocacy group, argues that the law should not be feared. Those already aware of the threat that toxins pose to young children aren't likely to be selling very many products that would violate new standards, says Ivy Sager-Rosenthal, the coalition’s campaign director.
“I understand the concern,” she says. “But the ultimate goal is making sure we protect children from unsafe products.”
Sager-Rosenthal was disappointed that the government gave manufacturers more time to comply with the new rules. It’s their responsibility – even more so than retailers, as she sees it – to assure that the products they make have been proven to be safe.
“Ultimately, toxic chemicals in toys just don't belong, and it's time the manufacturers comply with the law,” Sager-Rosenthal says.
Work on federal regulations began after Washington’s tough new rules had been signed into law. The state regulations would have taken effect in July. State Rep. Mary Lou Dickerson (D-Seattle) championed the state legislation and applauded Congress for taking quick action, although she believes they didn't go far enough.
“I am happy the federal legislation passed, and I hope Congress will take their responsibility seriously by providing adequate staff to implement the bill,” Dickerson said. “I would have liked the federal regulations to be stricter, but the trade-off means having the entire country protected.”
Breathing Room or a Waste of Time?
Retailers say they do recognize that the delay for manufacturers will help small toy producers who would have struggled to meet the testing and certification requirements. A huge number of small manufacturers, craftspeople and artists make products that are clearly safe, yet it would be a major struggle for them to cover the costs of testing every item, says Rickert of Top Ten Toys.
“For the mostly well-meaning small manufacturers, the delay is needed breathing room to figure out how, what and where to test, and how to report,” says Rickert. “For the procrastinators, it will just be a waste of time.”
The Consumer Product Safety Commission currently lists 23 accredited testing labs that typically charge about $50 per toy part to test for lead, or $5,000 for a toy with 100 accessible parts, according to research by children's and consumer advocacy groups, including Kids in Danger, U.S. Public Interest Research Group and National Research Center for Women & Families.
Under the new rules, any part of a product that a child can access must be tested. Components that aren't feasibly accessible to a child are exempt from the testing requirements, even if they contain lead or phthalates.
One toy-testing resource Rickert has used is the American Specialty Toy Retailer Association, which on its Web site has links to dozens of companies that have provided letters detailing their product testing and safety standards. Rickert also has called in Essco Safety Check, a Bellevue company, to test some of his toys.
Essco uses an X-Ray Fluorescence machine, or XRF analyzer, that scans household items, soil or toys to detect a variety of toxic elements, including lead, cadmium, arsenic and mercury. The scans, which partially penetrate the surface of whatever’s being tested, take about a minute per item, costing less than $2 per test on average. They don’t meet new federal toy safety standards, but owner Seth Goldberg says they give families and businesses a better idea of what's in their environment.
Goldberg is already working with people and companies in California, New York and Texas. He's received inquires from others in Florida, Montana and Illinois. People want to comply with the law, he says, and they're coming to him before going to a potentially more costly lab. He'd like to be accredited as a third-party tester, but says he can't afford to set up a lab.
Melanthia M. Peterman is a Seattle freelance writer and mother of one.
