Several provisions of the Consumer Products Safety Improvement Act went into effect on August 14, 2009. In the last couple of weeks, as that deadline approached and on the heels of the confirmation of new Consumer Products Safety Commission head Inez Tenenbaum, the Commission issued guidance on a raft of unresolved issues, some affecting publishers. Several loose ends remain, however.

The CPSIA, which governs all products for ages 12 and under and was spurred by recalls of lead-containing toys, is intended to protect children from harm, particularly from lead and phthalates. It was enacted in August 2008 and its first major provisions went into effect in February 2009.

As of last Friday, lead levels in children’s books must be 300 parts per million or less, down from the 600 ppm level that went into effect in February. The publishing industry has argued that new books are uniformly far below these limits, and should not be subject to the law’s testing and certification requirements. “Regular” ink-on-paper or board books printed after 1985 were granted a stay of enforcement, but they had not yet been deemed “intrinsically safe” or exempt from the law’s testing provisions.

On August 18, the Commission voted to affirm a "final lead rule" that outlines the products that are not subject to testing and certification under the law. It contains good news and bad news for publishers, deeming paper and CMYK inks to be “safe” and not subject to testing, but questioning other book components.

In a statement issued after the vote, in which she addresses children’s books at length, Tenenbaum said, “Although the Commission could not make a determination concerning all ordinary books published after 1985, the staff assessed the scientific and industry data provided by commenters and made determinations concerning several components of children’s books and the materials that comprise them. Based on these determinations, books printed with the modern four color system with a paper or cardboard cover and an inaccessible binding would not need testing unless they include other components that have not received a determination.” She adds, “The staff was not able to determine that spot colors, inks not utilizing the CMYK process, foils, laminates, metal wire saddlestitch, spiral bindings, and certain after treatments would not violate the lead standard.”

Allan Adler, the Association of American Publishers’ v-p for legal and governmental affairs, says AAP appreciates what the Commission is trying to do by identifying the materials not subject to testing, but is disappointed that the Commission’s final rule didn’t exempt regular children’s books entirely, as it had indicated that it would. “They didn’t fully address our concerns,” he says. “We had hoped we had provided them with enough information to reach those conclusions.”

Tenenbaum noted that interpretation of the CPSIA is an ongoing process and left open the possibility of further testing exemptions. “Although today’s rule is final, it is important to note that the Commission will continue to make similar determinations in the future based on its own scientific test data and the scientific test data provided by stakeholders seeking similar determinations for other materials or children’s products,” she said in her statement, adding, “Although every book component did not receive a determination at this time, further scientific test data and additional information about manufacturing processes may prove helpful in any future determinations concerning ordinary children’s books.”

Tracking Labels in Effect

August 14 also was the deadline for all children’s books—whether affected by the testing and certification provisions or not—to carry tracking labels. These are permanent marks to help consumers ascertain where the product was made, the batch number, and other information. Two weeks ago the Commission issued a ruling welcomed by publishers that gives them and other manufacturers flexibility in how they comply.

At Scholastic, for example, the print history lines already included on the copyright page or back cover of conventional books will now include plant-specific vendors codes, according to Karen Fuchs, associate director, non-book/novelty manufacturing. Products that don’t include a print history line will feature a tracking number code “where it will be most effective and compliant,” depending on the size and style of the item and its packaging.

“With the new guidance that has come out from the CPSC, we have not found the tracking label issue to be a huge burden,” says Michael Levins, CEO, innovativeKids. “Because books always had a unique identifier—the ISBN—and we always used a print code to track the specific production run, it was not a huge leap for us to add a bit more information to comply with the law. It’s a black plate change.”

Andrew Steinberg, president and CEO, Modern Publishing, agrees it is not difficult or costly to add the tracking labels. “This is just another added step for the production people to check dates and batch numbers,” he says. “I’m not sure people need that much information, but we have no secrets.”

In the case of publishers who test their products, either as required by the CPSIA or demanded by their retailers, the tracking label information typically is integrated electronically with their database of safety testing results.

Open Issues

The testing provisions of the CPSIA are more burdensome than the tracking label requirements. They affect publishers of novelty and book-plus formats, no matter what the outcome is for “regular” books. The CPSC has issued some guidance of late on testing, such as better defining what constitutes “inaccessible” components and confirming that book adhesives fall under the definition of “inaccessible” and typically do not need to be tested.

There are still issues pending, however. One of the key questions is whether the law will allow manufacturers to test just the components, rather than the components and the finished product, which would be costly and duplicative. The wording of the proposed final lead rule suggests the former. “It’s clear that the Commission is leaning toward component testing and not product testing,” Adler says.

Most novelty and book-plus publishers already have testing mechanisms in place at the behest of their retailers, especially the large discount chains, and feel they are well-positioned to comply with the CPSIA. “If you use plants that are approved by your retailers and licensing companies, there are no issues,” Steinberg believes.

Another open question is how libraries can comply with the CPSIA. The proposed final lead rule rejects the argument that books printed before 1986 are “intrinsically safe,” thus affecting vintage booksellers who sell the books for children’s use (“collectible” books for adults get a pass) and libraries whose shelves contain older children’s books; see our previous story here. The Commission has said it will issue a separate statement in the future regarding libraries and how they can comply with the law.

The publishing industry is also lobbying for a “safe haven” ruling for retailers, which are not required to test their inventory, but still can be held liable if they sell unsafe products. But if publishers are not required to test or provide certifications, how would a retailer know an item is safe? This has led some chains to demand testing results from publishers, even for regular books. “It would be ironic and wrong to have to provide certifications to stores when the Commission says no certification is required,” Adler says.

With the peak back-to-school and holiday seasons upon them, publishers hope some of the still-unresolved issues will be clarified soon. “Bits and pieces are coming together,” Adler says. “But we hope the Commission appreciates our concern that they keep their eye on the calendar.”