Wednesday, January 14, 2009

Great article!

I just read this article after submitted the previous post. I think this one might be the most concise and entertaining of all:

http://online.wsj.com/article/SB123189645948879745.html

Do read!

Terri

1 comment:

Renai said...

It may not be as far-reaching as many are making it out to be (hopefully, and still keep an eye out of course).

Here is HSLDA's take on it:
http://www.hslda.org/docs/news/20091130.asp

Consumer Product Safety Improvement Act of 2008 January 13, 2009
Home School Legal Defense Association has received numerous inquiries from member families about the impact of the federal Consumer Product Safety Improvement Act (CPSIA) which was signed into law on August 14, 2008. More specifically, home educators and vendors of educational materials are concerned about what restrictions the new law imposes on their ability to purchase and sell products used for homeschooling.While CPSIA potentially affects the sale of educational materials by individuals, it is unlikely that this new law will significantly impact the homeschooling community.

Beginning February 10, 2009, children's products cannot be sold if they contain more than 600 parts per million (ppm) total lead. Certain children's products manufactured on or after February 10, 2009, cannot be sold if they contain more than 0.1% of certain specific phthalates. Phthalates are chemicals mainly used as plasticizers (substances added to plastics to increase their flexibility), although they are used in other products as well. The ban on sales also applies to toys if they fail to meet new mandatory standards. Under the new law, children's products with more than 600 ppm total lead cannot lawfully be sold in the United States on or after February 10, 2009, even if they were manufactured before that date. The total lead limit drops to 300 ppm on August 14, 2009. Children's products are consumer products designed or intended primarily for children 12 years of age or younger.

The new law requires that domestic manufacturers and importers certify that children's products made after February 10 meet all the new safety standards and the lead ban. This certification must be based on testing of the product by an independent third party accredited by the Consumer Product Safety Commission (CPSC). Retailers of new children's products and sellers of used children's products, such as individuals, thrift stores, and consignment stores, are not required to test those products in order to certify that they meet the new lead limits, phthalates standard, or new toy standards. However, no one is permitted to sell children's products that fail to meet federal standards, including used books, educational materials, etc. The CPSC recommends that sellers avoid products that are likely to have lead content, unless they have testing or other information to indicate the products being sold have less that the new limit. It would seem that the same advice would apply to products likely to contain phthalates and products that may not meet federal standards for other reasons.

When the CPSIA was signed into law on August 14, 2008, it became unlawful to sell recalled products. Sellers may check the CPSC website for information on recalled products before taking into inventory or selling a product.


Following is an excerpt from a press release by CPSC on January 8, 2009:

"While CPSC expects every company to comply fully with the new laws, resellers should pay special attention to certain product categories. Among these are recalled children's products, particularly cribs and play yards; children's products that may contain lead, such as children's jewelry and painted wooden or metal toys; flimsily made toys that are easily breakable into small parts; toys that lack the required age warnings; and dolls and stuffed toys that have buttons, eyes, noses or other small parts that are not securely fastened and could present a choking hazard for young children."

This appears to be a far-reaching law because it repeatedly refers to acts which are prohibited by "any person." The term "person" is not defined in the amended law, so one can only conclude that "person" includes individuals, not just businesses such as manufacturers, retailers, consignment shops, and thrift stores. Further, while the new law gives special attention to children's products, the fact is that all persons are prohibited from selling any consumer products that fail to meet federal standards applicable to them, even products intended for use by persons older than 12 years of age.

Persons who knowingly violate the new federal law by selling products that do not conform to standards could face civil and/or criminal penalties. The term "knowingly" is defined in the law as "(1) the having of actual knowledge, or (2) the presumed having of actual knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations." In layman's terms, a person violates the law if he knows or should have known that a product he sold did not meet the federal standard. A seller is not
liable for penalties if he (1) has a certificate from the manufacturer stating that the product conforms to federal standards, unless the seller knows the certificate to be false, or (2) relies in good faith on the representation of the manufacturer or distributor that the product is not subject to any applicable product safety rule.

The current civil penalty for a violation is a maximum of $5,000, although this amount will increase to $100,000 on the earlier of the date that the CPSC adopts final rules or August 14, 2009. The criminal penalty is a maximum of five years in prison, a fine, or both.

How does the new law affect homeschoolers who sell used textbooks and other educational materials to other individuals, including those who sell through the online HSLDA Curriculum Market? How does it affect vendors at homeschool conventions? These transactions are subject to the restrictions of the federal law under CPSIA. However, it is likely
that most of these materials contain no lead or phthalates, are not banned hazardous materials, and have not been recalled by the manufacturer. And sellers are not required to test or certify any of these products, new or used. That's the responsibility of
manufacturers and importers. Sellers are simply prohibited from knowingly selling products that fail to meet federal standards.

The CPSC is in the process of proposing rules intended to provide further guidance on the federal standards for consumer products. More information can be found at its website.


Disclaimer

The information in this document is not intended to be legal advice. Sellers of consumer products should seek counsel from their attorney regarding the specific products they intend to sell.