Regulating the Process, not Actual Safety

Kevin Drum says:

The Consumer Product Safety Improvement Act makes it illegal to sell toys that haven't been tested for lead content.  In general, I think that's a perfectly fine idea.

He can't understand, though, why its effects seem so perverse and Draconian when its core is such a "perfectly fine idea."  It is amazing to me that the law of unintended consequences is so hard even for seasoned political observers to grasp.

A sensible restriction might be that a child cannot by any reasonable use of the product ingest more than X concentration of lead.  But of course that is not what the government does.  The government requires that every toy undergo expensive testing and batch tracking (almost like that of an aircraft part).  This is not by any means the same as simply requiring products to limit lead exposure.  It is a one-size-fits-all regulation of process, rather than true safety.  It imposes huge testing and tracking expenses on products that can't possibly have any lead in them.

And, like many laws of this kind, it imposes a huge penalty on small competitors and new entrants and rewards larger toy makers who both have the scale to pay for the testing and the political clout to shape the law in their favor.  In fact, the big winner from the legislation has actually been Matel, the company whose recalls actually led to the law in the first place.

The Consumer Product Safety Improvement Act (CPSIA) requires third-party testing of nearly every object intended for a child's use, and was passed in response to several toy recalls in 2007 for lead and other chemicals. Six of those recalls were on toys made by Mattel, or its subsidiary Fisher Price.

Small toymakers were blindsided by the expensive requirement, which made no exception for small domestic companies working with materials that posed no threat.

So while most small toymakers had no idea this law was coming down the pike until it was too late, Mattel spent $1 million lobbying for a little provision to be included in the CPSIA permitting companies to test their own toys in "firewalled" labs that have won Consumer Product Safety Commission approval.

The million bucks was well spent, as Mattel gained approval late last week to test its own toys in the sites listed above"”just as the window for delayed enforcement closed.

Instead of winding up hurting, Mattel now has a cost advantage on mandatory testing, and a handy new government-sponsored barrier to entry for its competitors.

Update: Brad Warbiany has similar thoughts.


  1. Ian Random:

    Hugh Hewitt was talking about this months ago. I love the part where ATV's for kids can't have lead in the engine block. What is the kid going to do? Rebuild an engine or lick it? He also had some lady on from the CPSC who said that the law was written in such a way that they can't weaken (add common sense) any of the regulations without an act of Congress even though Congress denies it. It cracks me up to see the ultra lefty toy producers making stuff out of blocks of organic recycled rain forest safe hemp complain they can't afford the testing. I wonder if they could fathom it as a barrier to entry so as to not challenge the big plastic toy producers.

  2. DrTorch:

    This law always felt very personal to me, as a chemist who created and marketed an educational board game. Personal as in insulting.

    This wasn't just about lead. The restricted compounds also included pthalates. An interesting class of compounds that are used widely in manufacturing. Manufacturing of ANYTHING...carpets, clothes, plastics, etc. In fact while working on contamination control for a spacecraft instrument, we couldn't get away from detecting pthalates, even after extensive cleaning and assembly in a clean room.

    The craft makers who sell at the local flea market will probably be able to skate by for a while. For a while, some of the places we sold our game at were very rigid on ensuring all state and local tax guidelines were followed. They'll likely follow up w/ this.

    If you use distributors (as we did) they are on the hook and insist that vendors provide evidence of compliance. Understandable IMO, but limited to large companies.

  3. LoneSnark:

    My favorite part in all this was that a perfectly good law already existed and did in fact work.

  4. Not Sure:

    "My favorite part in all this was that a perfectly good law already existed and did in fact work." - LoneSnark

    If one law = good, it only stands to reason that more laws = better.

  5. gn:

    Where did the law end up with respect to garage sales and thrift-store sales of older toys? Will they be forced to discard all un-tracked and un-tested products, thereby forcing people to buy new products from the same vendors and manufacturers that caused the problem?

  6. josh:

    I am a bit confused, how would one create a law that enforces the restriction "that a child cannot by any reasonable use of the product ingest more than X concentration of lead" without establishing some sort of testing and verification program.

    Either we test, or we don't. If we test, one might argue as to the thoroughness of the testing required, but some level of bureaucracy will be required to verify testing and enforce recalls and sanctions in the event of a testing failure.

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