CPSIA - size doesn't really matter
I have been hammering on one aspect of this CPSIA fiasco for some time now. In reaction to the sanctimonious "defenders of the public good" at USPIRG, PC, UCS, KID, etc., I have been trying to point out that they have supported a law which favors mass production and economy of scale even as they speak out against "Big Business". But now it's time to look at other angles; it's a complex mess, so there are many to choose from. [1]
First, there seems to have been a failure to distinguish what is meant by "large" and "small" manufacturers. I have probably been guilty of this myself whenever I was making reference to economy of scale and mass production. There is no "bright line" rule to distinguish the large from the small, the mass produced from the merely large production run, no answer to the Sorites paradox. There will be a temptation, I think, to use arbitrary numbers like "sales greater than $1M" or "fewer than 5 employees," but these will be less than satisfactory.
The million dollar level brings to mind rich people running sweatshops, but it is commonplace to generate sales figures like that with a reasonably small company of happy employees and -- while generating a comfortable living -- without making anyone fabulously wealthy. That is the beauty of entrepreneur capitalism (as opposed to finance or the "other" kind): it generates jobs and meets consumer demand without generating a great deal of inequality. Setting an exemption for companies smaller than some arbitrary size like this is going to have negative repercussions on both the jobs and consumer fronts.
One of those repercussions is the devastating impact it is going to have on the companies which, while big enough to be regulated, are still smaller than the rest. Their sales may fluctuate from year to year, so it may not always be clear to them if they are going to have to test in any given year. If they tend to compete with manufacturers below the line, they have a cost disadvantage because the other guys don't have to test. If they tend to compete above the line, they have a cost disadvantage with companies with large production runs. The middle will tend to get squeezed more than either end, and will therefore collapse.
The second repercussion will be a cyclical problem. As the middle clears out (everyone either gets big or fails), consumer choice will deteriorate. Consumers will start finding the smaller manufacturers making interesting stuff. Those smaller manufacturers will see demand skyrocket and will attempt to meet it. They will grow rapidly, probably making it to the level of the bright line rule. Suddenly, they will have to change their game to incorporate product testing into their production processes. Many of them will respond in one of several ways: either they will manage it well; manage it well but face a change in their pricing structure leading to a drop in sales; manage it poorly and see their costs quickly overtake their revenues; or manage it poorly by hoping to get away without testing.
Is the latter a big deal? We have been watching the tweets and posts of Jennifer Taggart, a lawyer who owns her own XRF gun (anyone remember Paladin?) and has been posting some of the interesting results. It is interesting how many bits of hardware -- mostly bling -- that fail the lead tests. So far, she has found the following:
(1) Vinyl is often stabilized with lead. So, I've found lead in fake leather, vinyl purses (particularly children's and doll purses), vinyl or fake leather shoes, vinyl raingear, diaper changing pads, diaper pages with built in changing pads, vinyl changing pad covers, vinyl mattress covers, etc.At the risk of slaying the sacred cows of some of the really small manufacturers, many of them tend to buy blanks -- unadorned t-shirts, onesies, and so on -- to decorate. This is one of the many easy ways to enter the industry. Unfortunately, they seem to think that since they aren't buying anything that says "Big Al's 100% Pure Lead Geegaws", since they aren't a big name manufacturer, and since they sew at home and don't have employees, then obviously they aren't violating the law (and in some cases have decided that they aren't even a manufacturer). At the risk of getting off topic, many of them are WAHMs (Work at Home Moms) or "Mom-preneurs" and believe that the fact that their bodies spontaneously (or nearly so) grew and then shed an independent life somehow gives them an aura of saintliness and whatever they produced by gluing lead crystals to a t-shirt blank therefore has a patina of perfection. This attitude is at least as dangerous as what might happen at the opposite end of the scale, if not more so.
(2) Fake pearl, fake shell or opalescent buttons. Almost universally. [also, she recently tested sequins with the same result]
(3) Fake inexpensive pearl decorations attached to clothing or in children's jewelry.
(4) Some red dyes in textiles.
(5) Lots of those decals on the front of t-shirts. I'm not a fabric industry person, so I don't know if they were ironed, heat transfer, screened or what. They seemed not to be silk screened but I don't have the vocabulary to be accurate.
(6) Crystals. The lead may not be accessible but the lead is generally well above 600 ppm.
(7) Charm like decorations attached to clothing.
At the other end of the production scale, large producers work directly with mills and hardware manufacturers to create custom ensembles of products. Also, they are an easier target for lawsuits both because of their visibility and their deeper pockets. Your kid swallows a lead pendant from Reebok, they settle for an undetermined amount; your kid swallows a lead pendant from some unknown working in her garage, you never find her or, if you do, you win a suit and will be lucky to see the funeral costs covered (I think they call such defendants "judgment proof"). The large producers may be more motivated and able to make sure that nothing enters their production stream that would fail a test. May be: Mattel didn't.
So we will find a constant problem with small companies growing into the range of the bright line rule delineating "big" from "small" and then finding that they have to do things that they never had to before. Some will be successful, others will not.
In fact, one really difficult problem will be determining during the course of a year whether or not you meet the new rule. Say I ended last year with $999,999 in sales. I don't have to test, right? But in October or so of this year, I sail through the $1M mark. Now, do I have to go back and test everything I made this year? Or do I see it coming and lay everyone off in September? Same thing with hiring employees: rules that kick in at some level usually force such companies to avoid maximum efficiency: they opt to avoid growing, hire temps, or they outsource.
Another aspect to this is the fact that it is not just manufacturers who are affected, but also distributors and retailers. They are not going to want to risk confiscation, fines, or jail, and will therefore insist that everyone -- large and small -- deliver the GCC documentation. For one thing, they can't advertise products as safe unless they can back up the claim. So small producers will have to produce the GCC and therefore pay for the testing even if the government exempts them. It isn't what Nanny Sam wants, it's what your customers want. In this case, your customers are retailers, and they're afraid of Uncle Sam. In fact, Wal-mart isn't just asking for GCC's, they're asking for the test results.
There is a further differentiation between retailers and manufacturers. Fly-by-night manufacturers can set up sweatshops and produce without giving a single thought to compliance. They can forge test results and GCCs. They can sell their products through traveling reps, at trade shows, and so on. When they get raided, they shut down one facility, incorporate under different names, and start up a new one. Location doesn't matter to them. That is absolutely not the case for retailers: if they aren't in the same location under the same name day after day, they never get the foot traffic to make sales possible. Retailers have more reason to be paranoid and therefore most strict about enforcement.
So everyone who thinks that a small business exemption will solve your problems, think again. Small business will not be able to sell into any meaningful venue. I'm not sure how this plays into the dynamic of the rapid growth of some of those small businesses: it makes it more difficult and so possibly means that only the better business managers will succeed in getting to the higher level and will therefore be okay, but on the other hand it makes it more difficult for anyone to get larger.
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[1] Which is why it should be repealed so we can start over.
Labels: CPSIA, regulation, sweatshops, trade


