Wisconsin Enforcement Info

Posted by Valerie on March 20, 2009

I just talked to Michelle Brennan at the Wisconsin Department of Agriculture, Trade & Consumer Protection. This is the agency that the Wisconsin Attorney General relies on when it comes to selecting and pursuing consumer protection cases.

She told me that right now, Wisconsin is not actively pursuing CPSIA cases or actively enforcing the post-1985 book standard. She said DATCP is not sending inspectors into bookstores, and that, right now, no one thinks that 1985 will be the final cut-off date for the legal sale of children’s books, but that the CPSC is still looking at data to see if maybe that date can be pushed back further. She said that Wisconsin will take its cue from the CPSC, will wait to see what the final rule will be, and will follow the federal guidelines.

She said that even though, right now, Wisconsin is not actively enforcing the post-1985 standard, she does not want me to feel that there’s no potential problem if I were to continue to sell old children’s books. She told me that there are federal inspectors in Wisconsin who are required to enforce CPSIA as it pertains to books, that CPSC inspectors who are already in Wisconsin do visit bookstores and thrift stores to check on compliance. Also, if a consumer were to come into my store and feel inclined to report me to Wisconsin DATCP for CPSIA non-compliance, then the DATCP would be required to come and investigate.

She said that I “may want” to set aside all of my pre-1985 books and hold them and not offer them for sale and wait to see what will happen, perhaps hold them in a garage for now, especially since Congress might even make changes to the law that could allow me to sell more of them in the future. She said that she didn’t want to tell me that this is what I should do, but she wanted me to understand that CPSIA is the law and that CPSIA being enforced at the federal level as written, and that it’s definitely enforceable and ultimately will be enforced at the state level as well.

She seemed more knowledgeable about CPSIA as it relates to children’s books than anyone I’ve spoken with at any other government agency or congressional office. I was not shocked or surprised by this, which seems to me an accurate assessment of the duties of Wisconsin, as spelled out in CPSIA.

My Constitutional questions remain, however. Perhaps as more than a curiosity, the Wisconsin Constitution states, “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.”

The Annotated Wisconsin Constitution maintained at the Wisconsin State Legislature web site includes the following references:
“Commercial speech is protected by the 1st amendment. The government must show a restriction directly advances a substantial interest for it to be constitutional.”

“For restrictions on commercial speech to stand a constitutional challenge, the restriction must not be more extensive than is necessary to serve the government’s interests.”