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Rigorous and costly testing for children's products and apparel, an extensive, costly certification process and ambiguous language are among the leading reasons why manufacturers of children's goods are engaged in the prospect of a lawsuit to amend the 2008 Consumer Product Safety Improvement Act (CPSIA).
"Laws cannot be vague and ambiguous," says Michael Kushner of The Kushner Law Firm, PLC in Aliso Viejo, CA, who is working with the organization Reform CPSIA and will represent children's manufacturers in a multi-party lawsuit against the U.S. Congress, if one is filed, with the objective of amending the Consumer Product Safety Commission's (CPSC) legislation. "If a law is overbroad, it is unconstitutional."
Kushner, along with manufacturers and designers behind the effort to reform the CPSIA, supports the lead restrictions stipulated in the new legislation signed into law last year, he affirms. It is the illogical and impractical aspects of the legislation, he says - such as mandating lead testing on natural fibers and finished product testing in addition to component testing - that Reform CPSIA seeks to revise, or rewrite.
"If you're (testing) the same product over and over, why do you have to (conduct) new testing for each new batch?" asks Kushner, highlighting suppliers' concern over testing different colorways, for example, in addition to testing finished products even after every component has passed an individual test. "I'm not saying, 'Lets lower the lead standards.' We want the law written intelligently."
Kushner is representing a group of small companies that make products for children ages 12 and under - primarily apparel at this juncture - that profess the complex and unduly arduous testing requirements will force them out of business. He says a multi-party lawsuit could be filed within the next few months.
Although the CPSC has issued a stay on some of the testing requirements, manufacturers and retailers remain concerned about what they consider laborious labeling requirements.
"It's intensive," says Dawn Michelle LaPolla, founder and owner of Baby Sprout Naturals, who has been overseeing regular updates to the Reform CPSIA web-site and advocating fellow children's manufacturers to campaign to revise the legislation. "You have to (indicate) what batch it is, the batch number, contact information and (other details)."
Industry members say there are not enough accredited labs to conduct the testing, and confusion persists on the precise cost of testing and certification. According to LaPolla, testing prices "start at $300 per test and go up." If every component on a finished product must be tested, that would be $300 per test for a button, snap and zipper, respectively, says LaPolla, adding, "It's a broad law and it's stringent."
According to LaPolla, the Reform CPSIA effort is trying to accrue a $25,000 "retainer" fee for the Kushner Law firm to issue the multi-party lawsuit. That retainer would require 100 companies each contributing $250. Thus far approximately 20 companies have signed contracts and contributed $250 each, she says. "We need 100 (companies) to make it affordable," LaPolla adds.
One of the companies on board is Aliso Viejo, CA-based Monkey Baby Clothes, whose founder Rachele Dressler-Sweetser contacted Michael Kushner, an attorney she had previously worked with to set up her business, and requested the law firm's assistance.
"I wasn't going to let my business go without a fight," says Dressler-Sweetser, who founded Monkey Baby Clothes about four years ago and who would be the "lead plaintiff" if and when legal action is filed, which would be in Federal Court in Orange County, CA. Many of the companies that have thus far signed on with Reform CPSIA are running businesses with incomes "under $15,000 a year," Dressler-Sweetser says. As many as 500 companies of all sizes -- including large manufacturers which Dressler-Sweetser declines to name citing confidentiality concerns -- have inquired about Reform CPSIA.
Dressler-Sweetser says Reform CPSIA must press on despite the one-year stay CPSC issued just prior to the February 2009 deadline.
"We'll find ourselves in the same situation one year from now," says Dressler-Sweetser. "The misperception for consumers and even by businesses is that they think (the legislation) is just for toys. It's more than that. We lost momentum (when the stay was issued.) I think we will (eventually) get the (number of company) names we need."
Companies such as those run by Marilyn Tov Oh, a children's wear designer marketing under the name Marilyn Tov, are monitoring the Reform CPSIA effort, although have yet to sign on as potential plaintiffs in a possible lawsuit.
"A lot of small companies would close down," says designer Tov Oh, who markets a collection of approximately 25 pieces for girls ages two to eight under the name Marilyn Tov. "To test every colorway (would be expensive). I don't think (small) companies can survive."
Tov Oh's apparel line is made primarily from natural fabrics including 100 percent cotton, 100 percent wool, and this season 70 percent mohair and 30 percent silk. While the CPSC claims it will not enforce testing on natural fibers such as wood and cotton, no legal exemption for such materials has yet been issued. "We still have to test fabrics, even if they are organic," adds Tov Oh, who is based in New York and sells to approximately 20 boutique-type retailers. |
