Disability Law

Under the new administration in Washington federal agencies are taking a tougher stance, weighted more toward consumer protection, than in the recent past. One example is the enforcement provisions of the 2008 Consumer Product Safety Improvement Act. And of course the agency is getting push-back from manufacturers, who want their products to be exempt from regulation. The New York Times recently ran a good article on this debate. Here are excerpts:

Is a football mainly for children? What about a Halloween costume or a model train?

None of the above, manufacturers say, as a new federal crackdown on dangerous toys has left some in the industry crying foul and not wanting to play.

The Consumer Product Safety Commission has been swamped with requests to exempt playthings from the new regulations, put in place after extensive toy recalls several years ago.

The Consumer Product Safety Improvement Act of 2008 gave the commission the job of defining a ?children?s product? ? which includes such things as toys, clothing and household goods ? and eventually enforcing the act. But coming up with that definition has become so difficult that the commission has postponed votes three times.

Critics of the crackdown argue that it heaps additional costs on small, American-based businesses that were not responsible for the tainted toys, many of which were made in China for large toy companies. So many manufacturers want out ? even if their arguments may leave some children scratching their heads.

The Halloween Industry Association, for example, insists ?thematic? costumes may not meet the definition because teenagers and adults like to get dressed up as Superman and Batman, too.

Model train makers point out that that the typical customer for their locomotives is not a child but a 53-year-old man. The Handmade Toy Alliance maintains that child-size instruments and craft tools should be exempt because an adult is usually supervising.

And the Sporting Goods Manufacturers Association says that a 30-year-old can share the same fantasies as a 10-year-old, ?of being Eli Manning and throwing the winning touchdown pass in the Super Bowl with no time left on the clock.? Therefore, it argues, footballs, lacrosse sticks and baseball bats should be considered ?general use products? rather than toys, regardless of their size or the age of the user.

The new enforcement was brought about by an influx of tainted toy trains, jewelry and other imports from China in 2007 that led to a recall of 45 million toys and other children?s products. In the aftermath, Congress passed legislation giving the safety commission vastly greater authority to regulate children?s products. Among the regulations are more safety testing, additional recordkeeping and a reduction in the amount of lead that is allowed.

It defined a children?s product as one that is ?designed or intended primarily for children 12 years of age or younger.? Lawmakers said regulators should consider the manufacturer?s statement about the product?s intended use; whether the product?s packaging and promotion were geared toward children; and whether the product was generally recognized as being intended for youngsters.

But even those caveats leave room for interpretation. For instance, the commission suggests that pens not be considered children?s products unless they are embellished with ?childish themes or play value.?

In another example, the commission says that a stuffed animal that is part of a Valentine?s Day gift ?is likely to be considered a children?s product even though it has been combined in a promotion with a general use or adult product.? The reason, the commission says, is that the stuffed animal will probably end up in a child?s hands.

The industry has had some success in persuading the commission to soften its stance. In the latest draft of the ?children?s product? definition, released this month, the commission granted an exemption to model train makers and a few others.

But the commission refused to give any slack to child-size musical instruments and craft tools. And, as far as sporting goods were concerned, the draft suggested that size does matter: equipment marketed to children would be considered children?s products. The same goes for Halloween costumes marketed to children.