Libraries and CPSIA

Posted by Valerie on March 21, 2009

I want to write more about Nancy Nord’s letter to Representative John D. Dingell later, because it was a treasure trove of information and presented very well.

But for now, this statement was really troubling.

“…information received from the trade associations…suggests that most library books lent to children are recycled approximately every 18 lending cycles or three years. Thus, it appears that few of the books being provided to children in their schools and from libraries would be more than 20 years old.”

This issue is well within my area of expertise, given that Jacobsen Books regularly sees freshly discarded ex-library children’s books from about 100 libraries in the Illinois-Wisconsin stateline area. We have quite a bit of experience working with libraries in Madison, Milwaukee, and Rockford as well as suburban and rural libraries in this region.

In my opinion, the trade associations are reporting an ideal world for publishers, not the real world as it exists for libraries. I’m not aware of a single library for which this assessment is accurate.

I wondered what a librarian would say, so I just walked over the next block to our library to talk to one of our librarians. I wanted to see her face when she heard that the CPSC thinks that the average children’s book is retained in a library collection for three years.

“Three years? Not in any library that I’m aware of! That’s probably about accurate for modern adult fiction, but not for any other area in the library, especially not children’s books.”

If the CPSC is very interested in how a permanent date cut-off in the 70’s or 80’s would work for public libraries, they really ought to talk to lots of them and not forget to ask small libraries in rural and other less prosperous areas.

A date cut-off that would really create minimal havoc for children’s libraries would actually be somewhere around 1950 or so. With few exceptions, only the smallest and least prosperous libraries still have a few pre-1950 children’s books on their shelves.

I know quite a few libraries that still have substantial numbers (hundreds, even thousands) of books published in the 1950’s, and many more have told me that they would have kept many more of these older books if not for lack of space.

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.”

Publishers Weekly

Posted by Valerie on March 19, 2009

Resellers of used children’s books are not required to test books or provide certification, but at the same time they cannot sell any books for children that are not safe, as defined by the Act. Most used booksellers continue to offer older books, even without proof that they’re safe, believing the risk is minimal and the harm from destroying children’s books outweighs any danger of lead exposure.

Staffers at Jacobsen Books in Clinton, Wis., used crime scene tape to express disapproval with CPSIA guidelines.

“I’m looking at it as a free speech issue,” says Valerie Jacobsen, owner of Jacobsen Books in Clinton, Wis., which sells 7,000 to 8,000 children’s books in its shop and online. She estimates 65% of her inventory for kids 8–12 and 35% for kids 3–8 was printed before 1986. “I just know that, from a moral position, I want to continue to sell them,” she says. “But it also makes me uncomfortable that someone could decide to make me a test case.”

Jacobsen surveyed used booksellers about their response to the CPSIA on her Yahoo Groups page. Of 79 who responded, 61% said they would continue to sell children’s books as they always have, 31% hadn’t decided what to do, 2% had removed all pre-1986 books from their shelves, and 3% said they removed some that seemed like they might be risky. None had tested any books.

Read More at Publishers Weekly

First Amendment

Posted by Valerie on

While parents have the authority, even the duty, to guide and restrict the scope of their own children’s reading, the Bill of Rights makes it perfectly clear that Congress does not share that authority.

Over the years, the courts have taught us that even content-neutral restrictions of our First Amendment rights must pass all three of the following tests:

[1] The restriction must be genuinely content-neutral. Neutrality isn’t always obvious, and restrictions that seem to be content-neutral on their faces might inadvertantly target some kinds of content more than others.

Under this test, I think it could be fairly argued that by keeping pre-1985 books out of children’s hands, Congress is unfairly restricting children’s access to older, more conservative, ”traditional” American values.

[2] The restriction must be narrowly tailored to serve a significant government interest in the least restrictive way. The government interest must be more than merely extant; it must be significant.

Under this test, CPSIA has not even the smallest hope of constitutionality. CPSIA restriction of our children’s freedom to access information was unanticipated and unintended; it was accidental. Congress has never expressed even the mildest interest in keeping pre-1985 books away from children, and we have no evidence that children will benefit from the loss of these books in any way.

I don’t think Congress could successfully make the leap from accidental infringement to proving a significant government interest, and what’s more, I don’t believe that they are inclined to do so.

[3] The restriction must leave open ample alternative channels of communication of the same content. Alternatives must be ample and readily available, not merely possible.

While CPSIA does leave the theoretical option of reprinting everything old and precious, the realities of the market render that extremely improbable. Congress has not attached one easily surmounted restriction with CPISA; Congress has actually created a situation where it will be virtually impossible to fully comply with CPSIA and still leave the full breadth of twentieth-century literary content available to children.

If you picture a government confiscating all the work of a press, but then permitting that press to reprint all of its past work, the result would be infringement of the freedom of the press. The economic reality would not be immaterial.

See Albert Krantz v City of Fort Smith for the application of these three tests to one content-neutral restriction of speech.

Given that we believe CPSIA is an unconstitutional restriction of the First Amendment freedom of American children, we are treating it as such in our business.

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (American Jurisprudence, Second Ed, Sec. 178)

We will continue to sell children’s books, and are in the process of returning to full marketing , but at the same time we do not find it comfortable to operate with this degree of uncertainty–or with even the smallest potential for government oppression against our good business. 

Both for the sake of our business and our family and for the unjust oppression of other businesses and families and especially for the great potential for harm to America’s low income children, we intend to oppose CPSIA for as long as it remains on the books.

Bikes and Kids

Posted by Valerie on March 18, 2009

The Bicycle Product Suppliers Association (BPSA) petitioned the CPSC for an exclusion from CPSIA lead limits; this petition was denied.

As a mom, the bicycle issue is important to me. I want to see regular children’s bicycles readily available for children and, in particular, I’d like to see the continued legal sale of used bikes. I have eleven children ages 19 to 2. All of my kids have loved riding their bikes, but over the last 16 years, we’ve purchased only one brand new bicycle. (The sale was irresistable!)

We’ve found it very easy to buy bikes that have only been used for one or two seasons for just $15 or less. These used bikes have brought a lot of joy to my children’s lives, and I’m–once again–peeved that Congress “accidentally” interfered so far into our family’s privacy–and now chooses not to repent and undo damage.

At a meeting on March 11, 2009, members of the BPSA met with members of the CPSC to discuss the issue of lead in children’s bicycles. Association President John Nedeau offered three reasons why the CPSC should exempt bicycles from the new lead standards.

“[1] New bikes still need to rely on recycled materials [which] allows for an uncontrollable potential for trace amounts of lead…especially as the limits step down to 300 parts per million….[2] Inventory plus spare parts and repair parts that were made well before this came to be and likely exceed the CPSIA limits….[3] Used bikes…there are some wonderful programs emerging in many communities…where used bikes are made available to less privileged children, and it’s a really powerful tool in terms of what it can provide for those children.”
John Nedeau, President BPSA

Even if you aren’t inclined to watch the whole meeting, the six minute  segment on the non-profit Dream Bikes store, from 9:25-15:30, is illuminating. You’ll have the opportunity to see how much may be lost under CPSIA, given that the sale of ALL bicycles is clearly, already technically illegal. (And there goes Congressman Waxman, again, pointing fingers when he could have the courage and humility to show mercy.)

This wouldn’t occur to many in Washington, but in America the wide and ready availability of all kinds of used children’s products–books, educational supplies, clothing, toys, bikes and more–really is a mercy to low income families. Low-cost, minimally used children’s products can go a long way toward closing the gap between the wealthy and poor, in terms of childhood experience. CPSIA directly attacks one of the greatest blessings that disadvantaged families now enjoy in our advantaged country. Please, think about it.

Here are some other quotes that especially caught my attention.

“What would be needed…to address [used] inventory…the nature of the product is some very old bikes would be around. In some cases, we have, for example, in the case of very old toys, we can sometimes say ‘That’s a collectors item,’ or a very old book, we have a different way of dealing with it, but in the case of bicycles, I don’t know if you have antique…bicycles…but just a ten year old bike would probably not qualify….”
Gib Mullan, Director of Compliance, CPSC

“Cheap kids’ bikes probably rust through due to the lack of lead paint. Just a little small editorial there.”
Gib Mullan, Director of Compliance, CPSC

“Any 24-inch or smaller wheel that’s coming out of our factories today has this outer core that’s below 300 parts per million….I’m assured by our QC people that this valve is fine and it will hold air and it’s has gone through all the destructive testing. And I hope and pray that I’m not back here in front of you six months from now saying, “I’ve got children’s tires rapidly deflating all over America.” I don’t think that that’s going to be the case.”
Bob Burns, Head of the BPSA Legislative Committee

WHAT WE DO KNOW: Kids were not in any danger from lead in bicycles.

WHAT WE DON’T KNOW: Kids may very well be in imminent danger of accidental injury due to the unforeseen failure of parts rushed to market to satisfy the overactive imaginations at Consumers Union, Kids in Danger, U. S. PIRG, Shackowski, Rush, Waxman et al.

BTW, there are good reasons to suspect that bicycle helmets which could prevent life-threatening head injuries are also going into dumpsters over the fear of expensive, hyper-technical violations of the lead standard by honest thrift stores.

If you want to know, all of my kids’ bicycle helmets were purchased used at $2 or less, and I don’t care how many ppm lead are in the racing stripes.

Would it be good if all Goodwill stores continued to feel confident selling used bicycle helmets for $1.99–or should all parents have only the $19.99 Wal-Mart option? And if some parents need the $18 difference for rent? Don’t worry? Be happy?

Or don’t buy a helmet at all?

For all the rhetoric spilled in the CPSIA Congressional hearings, there certainly wasn’t much understanding or appreciation for the full spectrum of American economic life.