The Consumer Product Safety Improvement Act of 2008 has been in the news all year, and December is no exception, as the Consumer Product Safety Commission is scheduled to vote imminently on some key issues that will affect children’s book publishers. While the industry continues to await that ruling, Emily Sheketoff, executive director of the ALA’s Washington office, was scheduled to meet with CPSC head Inez Tenenbaum on Thursday.

The Association of American Publishers, along with the Printing Industries of America and the Book Manufacturing Institute, has petitioned the CPSC to extend the “stay of enforcement” of the testing and certification provisions of the CPSIA.

Extending the stay, which is scheduled to end on February 10, is important because the CPSC has not yet issued guidelines about CPSIA-related testing and certification protocols—although the law dictated that it do so no later than 15 months after enactment, or by November 2009. This lack of direction makes it difficult, if not impossible, for publishers and other makers of children’s products to comply. Several other industries have made similar petitions, and the CPSC is scheduled to vote on the extension today.

“As we argued in our petition, how can you not extend the stay when these critical rulemakings aren’t finished?” asks Allan Adler, AAP’s v-p for legal and government affairs. The question is whether the stay will end on February 10 as originally planned (likely accompanied by some interim testing and certification protocols), extended for a certain finite period, or be tied to the timing of the rulemaking (e.g., having the stay end six months after all the protocols and standards have been finalized).

Meanwhile, as publishers, booksellers, libraries, and schools approach the end of a tumultuous year of trying to understand and comply with the CPSIA, U.S. Representative Henry Waxman drafted an amendment that would have created an exception for books (among other things), representing a significant shift from his previous position. The amendment, which some observers considered flawed—including Rick Woldenberg, a leading commenter on the CPSIA and chairman of Learning Resources, a producer of educational materials—did not end up being attached to the Defense Appropriations Bill this week as was planned. However, the fact that it was drafted is seen by some as a signal that Congress may take some action on the CPSIA in the future.

What a Year It's Been

Enacted in August 2008, the CPSIA was a reaction to high-profile toy-industry recalls that took place in 2007. It required, among other provisions, that all products intended for children under age 12, including books, not exceed certain lead levels, and that they be independently tested and certified to ensure that. The publishing industry was not consulted during the formulation of the Act and was taken by surprise late last year when it found it would be regulated under the Act.

The CPSIA has caused significant confusion for the children’s book business throughout 2009. It initially was believed that the Act could cause children’s books could be removed from schools, libraries, and stores; nonprofit groups to lose the ability to accept donations; and retailers, printers, and publishers to potentially go out of business. The publishing industry, led by the AAP, argued that ink-on-paper and board books should be exempt, since there has never been any evidence that books pose a danger of lead exposure.

Just before the CPSIA’s provisions were scheduled to take effect in February 2009, the CPSC granted the above-mentioned one-year stay of enforcement on the law’s certification and testing requirements, to give the multitude of children’s product industries and the CPSC itself time to interpret the law and issue guidance on how to comply. At the same time, it stressed that products on store shelves after that date must be “safe,” according to the law’s provisions.

Shortly thereafter, the CPSC declared a permanent stay of enforcement for “ordinary” children’s books printed after 1985, saying it would not impose penalties against anyone for making, importing, distributing or selling them. This gave the industry some relief, but still did not preclude states’ Attorneys General from enforcing at their discretion.

Throughout the year, the industry continued to lobby the CPSC to exempt “ordinary” books entirely, and there have been occasional rumors that Congress might take action to amend the law. While neither has happened yet, several rulings came down that were positive for the book industry. Most publishers and other book-industry players say things have settled down now and that they are in compliance, although a few loose ends remain.

Where Things Stand

Here is a snapshot of how the CPSIA has affected various constituencies within the industry, and the issues still pending as the year ends:

• Publishers of “ordinary” books: These were the houses potentially most affected by the law at the beginning, since they had no testing mechanisms in place. In August, the Commission declared that many of the components of ordinary books printed after 1985 were either “safe” (for example, paper and CMYK inks) or “inaccessible” (adhesives used for bindings). This made publishers breathe easier; however, the Commission went on to note that it had doubts about whether lead levels in foils, laminates, spot colors, saddle stitching, spiral bindings, and other components were safe.

Thus, “ordinary” books printed after 1985 are not entirely out of the woods yet; some do need to be tested and certified. The CPSC issued a statement of policy in October that included an illustrative example relating to books, in which it said that “a book made with a cardboard cover glued to pages made with paper and printed with CMYK process printing inks does not need to be tested for lead content and no certificate is required by the Commission.... If, however, the book was bound with a metal spiral binding rather than inaccessible glue, the metal spiral bindings would need to be third party tested for compliance with the 300 ppm lead content limit, and the product would need to be certified.”

In addition, the Act requires publishers and other manufacturers to provide tracking labels—permanent distinguishing marks on the product and packaging that indicates the manufacturer, date and location of production, and batch or run number—whether they need to test or not. The CPSC issued guidelines for tracking labels in August that were in line with what the publishing industry wanted, allowing flexibility in how the information is provided. Many publishers print a code on the book that allows consumers to find the required information on a Web site.

• Publishers of book-plus and novelty books: Because of their toy-like attachments, plastic components, glitters, foils and the like, book-plus publishers must comply with all of the Act’s provisions, from tracking labels, to testing and certification of lead levels, to testing for phthalates (a chemical used to soften plastic). Most of these publishers already were testing their products extensively, in part due to demands by their mass merchant and other key retail accounts. The impact of the CPSIA on them has primarily been to add more cost, paperwork, and time to their testing procedures.

As noted, book-plus publishers are still awaiting the CPSC’s guidelines on specific testing protocols, and are hoping for an extension of the stay of enforcement while those issues are resolved. The longer stay also will give the CPSC more time to expand the list of approved independent laboratories, which currently is limited to just eight globally, far too few to meet demand.

• Bookstores: Although children’s booksellers initially were worried that they would have to dispose of significant inventory, that fear has been alleviated by comments from the CPSC that the burden of liability and the responsibility for testing remains with manufacturers and importers rather than with retailers, and most are now comfortable selling ordinary children’s books printed in 1986 or later. Still, booksellers theoretically could face lawsuits or fines if they sell or display a lead-containing or undocumented product, and the AAP continues to lobby the CPSC for some sort of “safe haven” ruling to prevent their liability, if an exemption is not forthcoming.

The primary effect of the law on booksellers to date is the need to make sure that they have access to paperwork, which most publishers and manufacturers are making available on the Internet, showing that any required testing has been done. This has been a time-consuming and expensive process, especially for stores that sell a significant amount of book-plus or toy product in addition to books.

• Schools and libraries: These constituencies face unique challenges from the CPSIA due to the fact that many have books in their collections printed before 1986. Initially some libraries and schools thought they would have to destroy or hide all of their older books, but most are currently taking a wait-and-see position, as suggested by the American Library Association and other groups. The CPSC has reiterated that it does not consider older books in libraries and schools safe, but has promised it would issue separate guidance to address the concerns of these organizations.

The industry continues to await that ruling, but Emily Sheketoff, executive director of the ALA’s Washington office, is scheduled to meet with CPSC head Inez Tenenbaum today and is hoping that means guidelines will be forthcoming soon. “Libraries have been called on to do a lot this year for our communities in this economy, and this is something we shouldn’t have had to deal with,” Sheketoff says. “The CPSC has been working with private industry to address their concerns. If these books are a problem, they should be doing something to help us address it. If it’s not a problem, as we believe, then they shouldn’t have put us through this, especially in this year.”

• Used booksellers: Sellers of used children’s books face many of the same challenges as libraries, since their inventory often includes older books. The CPSC has addressed their plight somewhat by stating that, like other retailers, resellers (including flea markets as well as other sellers of used products) do not have to test the items they sell, although they must not sell anything “unsafe.”

Some purveyors of used books have said they have stopped purchasing or selling children’s books due to the law—either because they are older printings or because they cannot prove they have been tested for lead—while others have labeled their older children’s books “collectible,” to signify they are intended for adults rather than children. Still others have continued with business as usual because they believe the risk to children is minimal and that the harm from destroying children’s books outweighs any danger of lead exposure.

See our online timeline for links to the major CPSIA stories we have run throughout the year. We will continue to monitor and report on new developments in 2010.