Politics & Policy

Between a Rock and a Barbie Dream House

Congress paves the road to hell with good intentions.

Every conservative is familiar with the concept of unintended consequences. Built into our philosophy is the idea that even well-intended changes to the law can have undesirable and unforeseeable effects, and therefore policymakers ought to undertake such changes only when the need for them is urgent and clear. Even then, they ought to proceed deliberately and with caution.

When policymakers ignore this principle, they produce legislation like the Consumer Product Safety Improvement Act (CPSIA). This legislation grew out of the hysteria that surrounded the toy recalls of 2007–08, though the fact of the recalls themselves demonstrates that no new law was necessary. “We recalled those products because they violated the existing law,” says Nancy Nord, acting chairman of the Consumer Product Safety Commission (CPSC).

Lead paint has been illegal in the United States since 1978. When toy companies such as Mattel discover lead paint in their products, they have a legal obligation to report it to the CPSC, which then initiates a recall. In 2007, the CPSC launched a number of high-profile toy recalls involving lead paint. Similar scares involving tainted pet food and toothpaste fed a public panic over imports from China — the common denominator in these cases. In the wake of this panic, Congress speedily passed CPSIA with almost no opposition.

Now Nord finds herself in an odd position. She calls the law “heartbreaking” in its consequences but is charged with enforcing it. Her opposition to it led several Democratic lawmakers to call for her resignation, but that would leave the three-person commission with only one commissioner — one seat has been vacant since 2006. “I would like to see a full complement of commissioners and would welcome and urge the president to nominate a new individual to come over here and serve as chairman,” Nord says.

For the time being, however, she is obliged to implement the statute as Congress wrote it while doing her best to mitigate its damage to small retailers, secondhand stores, and other businesses that have been adversely affected. “The problem that we are finding,” she says, “is that because the law was in response to what Congress perceived to be this hysteria over recalls . . . they pushed through a bill that was not particularly well thought through. And we are now seeing the unintended consequences of this not-well-crafted piece of legislation.”

About these, the headlines have been stacking up. “Lead ban threatening manufacturers,” reports the Providence Business News. “Anti-lead law causes small-business devastation,” argues the San Francisco Examiner. “New law could cost libraries thousands,” according to the Zanesville Times Recorder. And “Lead law puts thrift shops in lurch,” says the Boston Globe.

As a perusal of these stories makes clear, there are three main problems with the law. One is that it lays down a bright line regarding lead content and defines anything that falls on the wrong side of that line as a banned hazardous product, regardless of whether the product is in fact unsafe. No one in history has gotten lead poisoning from reading a book, but printer’s ink used to contain trace amounts of lead. Librarians are faced with a choice between cost-prohibitive testing and disposal of their pre-1985 inventory of children’s books. Thus, we get stories like this one in the Nebraska City News-Press: “Librarian quarantines books.”

The second problem is retroactivity: The law’s provisions apply to all products marketed to children twelve and under, regardless of when they were manufactured. This is the part of the law that has hit thrift stores and other secondhand dealers that cannot afford to test and certify all of their children’s merchandise, as the law requires. Something as simple and safe as a zipper on a child’s jacket could contain more than the permitted level of lead, and store managers would rather throw inventory in the trash than run afoul of the law.

The third problem is the unrealistic deadlines the law imposed: Most provisions took effect February 10 — a mere six months after the law was enacted. As noted in the stories, many of the problems with this law arise from uncertainty: It allows some exceptions, but librarians, thrift-store managers, and small shopkeepers aren’t sure whether they qualify, and six months isn’t enough time for the CPSC to interpret the law and work these issues through the courts.

Not that CPSC has much room to work with. To a large degree, this legislation has taken decisions about consumer safety out of the commission’s hands. “They have taken away our responsibility to look at the risks and make judgments about what is or isn’t safe for American consumers,” Nord says. “And that’s really our job. And by doing that, they’ve swept all kinds of products into a net, and now we’re just going to throw them away.”

That’s not the kind of economic damage Congress intended to inflict when it passed this law. But that’s why we call them unintended consequences.

— Stephen Spruiell is an NRO staff reporter.