For the Children?

Wednesday, July 1, 2009

One of the twentieth century’s most important achievements in public health was effectively removing lead from paint and gasoline. A few simple and powerful steps sharply reduced the incidence of lead poisoning in children.

Recently, toys from China were found to have been contaminated with large doses of lead paint. The right government response would be to throw the book at the perpetrators: civil and criminal penalties coupled with bans from the U.S. market, backed by tort liability in cases of proven injury. No one should make light of serious harm.

But our Congress had a better idea, which turned this unfortunate episode into a national crusade against lead in children’s products. Thus last year saw the passage, with bipartisan support—which politician wants to look soft on lead poisoning?—of the Consumer Product Safety Improvement Act (CPSIA), which was meant to revolutionize the regulation of lead in children’s products in the United States.

Boy, did it ever. Instead of targeting the known sources of lead contamination, this ill-conceived statute extended coverage to the horizon by solemnly requiring third-party testing and certification, using only the best in scientific techniques, for all children’s products. Just to be on the safe side, these were defined generously to include all products that are “primarily” intended for children twelve years of age and under. Congress gave the Consumer Product Safety Commission (CPSC) six months to prepare the needed regulations.

This exercise in statutory aggrandizement shows that it is far easier for Congress to set public goals than for agencies to implement them. “Primarily” is a weasel word. Remove it, and all products need testing because some infant might suck on a wet paint brush. But determining which products are primarily directed to children requires a detailed examination of market structure that no small business is able to undertake.

No one seemed to care much that the safety commission did not mention the source of its authority to prolong the regulatory agony.

Worse still, that definitional hedge provides cold comfort to the thousands of small manufacturers of everything from bedclothes to books whose products have no known history of lead contamination. It is therefore no surprise that the Consumer Product Safety Commission worked itself into a lather trying to figure out sensible exemptions from the statute under the tight congressional timetable. But the commission was thwarted by the insanely tight language that required all covered products to endure expensive testing unless they could show “on the basis of the best available, objective, peer-reviewed, scientific evidence” that a “specific product or material” would not lead to absorption of lead in the human body or to any adverse impact on health and safety.

We thus ask as much testing for fuzzy felt bears as for cancer drugs. Imagine the joy of manufacturers who are told by expert third persons that the cost of testing exceeds the value of the product line, which it might destroy anyway by bathing it in acid. The palpable absurdity of the standard created instant turmoil among the sellers of everything from baby books to booties.

And lo, in an age of regulation, the CPSC did the only honorable thing. Subject to intense pressure from the same members of Congress who had supported the passage of CPSIA, it postponed (by an informal ruling) the operation of the ban for one year, except for “certain children’s products that used lead paint for surface coating,” cribs and pacifiers, various buttons, and a few other assorted items. No one seemed to care much that the CPSC did not mention the statutory source of its authority to prolong the agony.

This exercise in statutory aggrandizement shows that it is far easier for Congress to set public goals than for agencies to implement them.

The CPSC wants to use that year to find better ways to decide what counts as a batch of a given product line from which some sample should be tested. This is only a tangent. Congress should use the regulatory hiatus to back off from the abyss. The limited class of products identified by the CPSC probably represents the outer limit of merchandise calling for regulation. So now that the grandstanding is over, let Congress meekly dump its statutory “improvement” and start over. No libertarian can ignore the risks of lead, but everyone, regardless of political persuasion, should reject using a bazooka to kill a (lead-free) gnat. Adjusting regulation to relative risks counts for a lot. Indeed, for CPSIA, it counts for just about everything.