No Problem for Cottage Industries?

Posted by Valerie on February 13, 2009

The following statement comes from a letter widely distributed by HSLDA.

“HSLDA met on Wednesday [February 4, 2009] with Commissioner Thomas Moore, of the [CPSC] to discuss [CPSIA]. The proposed regulations had persuaded many small family businesses to shut their doors and cease production…. Home School Legal Defense Association is satisfied with the meeting…and remains strongly convinced that no small business should close down because of the lead requirements….

“…Last Friday, the CPSC declared….[a]n exemption for ordinary children’s books printed after 1985…. HSLDA [had] asked for an exemption for all books. Commissioner Moore argues, however, that the ink in books prior to the 1980s did contain lead…. Moore…assured HSLDA that small businesses…will have nothing to worry about. ‘Historically, we haven’t gone after these kinds of businesses,’ he told HSLDA, ‘not cottage industries.’

“HSLDA hopes that these policies…will provide significant relief to family businesses….  HSLDA is confident of the future of small businesses under this law, and is grateful to the Commission for its cooperation and its sensitivity to the needs of family businesses.”

Well, I’d really love to believe it, but lawyers who are specialists in business law have told their bookseller clients that persisting in selling old children’s books to children and families does put them at risk of prosecution.

So who’s right?  

First, CPSIA is clear. If I sell a pre-1985 book that happens to have more than 600 ppm in “any component” (a page? a picture? a front cover?) then I have, ipso facto, broken the law. I don’t have to know that the book contained lead, and I don’t need an official warning first. If I marketed that book as appropriate for children, then I have committed an offense with clear penalties of up to $100,000 in fines and up to five years in jail.

Verbal, third-party promises not to prosecute, combined with a third-party impression that I’m too small ever to be a target, don’t change the fact that the act of selling a pre-1985 children’s book with brilliant pictures to a child or to a family for a child is illegal. Call me paranoid, but nothing will convince me that this is a good thing or that CPSIA will definitely prove to be harmless in the long run.

The CPSC does already know that many pre-1985 children’s books contain over 600 ppm lead in some components. See Moore’s statement above as well as evidences here, here and here. (Note that the limit will drop to 300 ppm in August 2010 and 100 ppm in August, 2011.) Early on in this journey, many of us assumed that if we could only afford to test, then our beautiful treasures would be exonerated once and for all, but this is not the case. In some cases–possibly many cases–testing would put us booksellers smack dab in the middle of “knowing violation.” (This is why we need a change in the law itself.)

(BTW, does it need to be said? Lead levels over 600 ppm in some component of a child’s book do not indicate danger or risk. Unlike books, common table forks have been known to harm children, but no one thinks that they should be outlawed or regulated. We all understand that the risk is not inherent to the fork and that forks are a positive blessing if managed appropriately in the privacy of the home. In the case of books, we have not one single record of any child ever being poisoned by a book. Before we can have “risk,” we must have a measurable event, and we don’t have that here. Lead was given for the benefit of mankind, including children and is only ever dangerous when it is used in an inappropriate amount and in an inappropriate place; when lead is used in an appropriate amount and in an appropriate place, it is a blessing.)

Second, CPSIA has removed earlier requirements that any violation be “knowing,” and that any violator be given the benefit of a series of warnings prior to prosecution.

Third, a promise not to prosecute one day does not form a legal defense for another day. CPSIA is the law; a conversation between one member of the CPSC and HSLDA is not the law.

Fourth, while CPSC told HSLDA that CPSIA would not be enforced against cottage industries, CPSC told KPTM TV that they have an Internet surveillance team to police the online marketplace, including eBay and Craigslist.

Fifth, within the CPSIA, you will find the following statement:

“Not later than 180 days after the date of enactment of this Act, the Commission shall…report…the efforts of the Commission to reach and educate retailers of second-hand products and informal sellers, such as thrift shops and yard sales, concerning consumer product safety rules and product recalls….”

Sixth, the CPSC has said that we can sell some older children’s books as “adult collectibles” if, due to their price and scarcity, they are not intended primarily for children’s use, but it would be ridiculous for me to attempt this defense while http://www.valerieslivingbooks.info exists and our local bookstore retains signage, activities, and policies that are clearly deliberate marketing to children and their families. (At the very least, this loophole unreasonably prohibits honest and effective marketing for those books whose true best purpose is entertainment and education for children.)

Seventh, the opinions of the current commissioners are their opinions only. The commission is very clear that their enforcement policies can be expected to change at any time. Right now, there are only two commissioners on the CPSC, but President Obama has the authority to relieve both of them and appoint up to five new commissioners. Some of the rhetoric coming out of the Obama administration leaves me in doubt that any new commissioners will be likely to hold broad sympathy either for legitimate business interests or for family privacy. Also, the current calls for Nancy Nord to resign, now that she has publicly admitted that CPSIA does need more work in Congress, leave me doubtful that the future makeup of the commission will be better than it is today.

Eighth, CPSIA, as law, puts severe limits on what the CPSC can do. Even if the current commissioners want to exempt all children’s books, even if all future commissioners want to exempt all children’s books, the CPSC just doesn’t have that power.

Ninth, CPSC does not have sole authority for enforcing CPSIA. Authority and responsibility for enforcing these provisions has been given to the Attorneys General of the fifty states. A promise from Thomas Hill Moore, even if kept for the remainder of his tenure, does not restrict the power that CPSIA has delegated to the Attorneys General of every state. 

Finally, think about this…. HSLDA exists for the purpose of protecting families from federal and state aggression for the legal act of homeschooling. Since HSLDA does have a legitimate purpose for its own existence, it seems a little odd to presume that no families need protection from federal and state aggression if they do, in fact, commit illegal acts. If a law was passed that made homeschooling “technically illegal,” with fines and jail terms attached, I think HSLDA would be flooding the Internet with Calls to Action, enforcement promises notwithstanding.