Mark Pryor: Saving Kids from Old Books

saveskids-01When you think of unsafe children’s products, you probably don’t think of books. Outside of our one-year-old smacking me in the head with one of his board books, I have a difficult time imagining a less threatening product than a children’s book. Why, then, did Senator Mark Pryor’s child safety legislation label children’s books as such a threat?
To be fair to Senator Pryor, I don’t think that children’s books were the target when he shepherded the Consumer Product Safety Improvement Act (CPSIA) through the Senate. But the bill’s language did cover books. Older books, those written before 1985, were under particular threat. That posed big problems for libraries, second-hand bookstores, and resellers of older children’s books.
Walter Olson (whose blog, Overlawyered, has been invaluable for this series) explains why older books were in trouble:

Not until 1985 did it become unlawful to use lead pigments in the inks, dyes, and paints used in children’s books. Before then—and perhaps particularly in the great age of children’s-book illustration that lasted through the early twentieth century—the use of such pigments was not uncommon, and testing can still detect lead residues in books today.

Olson notes that even though these older books may have had lead in their ink, there was no reason to think they posed any harm to children:

While lead poisoning from other sources, such as paint in old houses, remains a serious public health problem in some communities, no one seems to have been able to produce a single instance in which an American child has been made ill by the lead in old book illustrations—not surprisingly, since unlike poorly maintained wall paint, book pigments do not tend to flake off in large lead-laden chips for toddlers to put into their mouths.

The Consumer Product Safety Commission (CPSC) issued regulations regarding the resale of used books, which said that only those made after 1985 could be considered safe. This threw book resellers and libraries into a kind of legal limbo about what to do with their pre-1985 books. Regrettably, in some instances this led some libraries to perform quite unnecessary mass book disposal and destruction.
The CPSIA hit newer books hard, too. The CPSC issued guidance that books intended for children’s use would have to be tested in order to meet the law’s lead limits. There was vigorous debate about this requirement. The American Library Association, for instance, concluded that “Our analysis is that neither the law nor the legislative history indicates any Congressional intention to include books and even textbooks in the law.” The ALA may be right about Congressional intent. However, the text of the law is broad, and it did indeed include books.
The uproar about CPSIA’s effect on older books, as well as the burdensome requirements that new books would face under the law, led Congress to amend CPSIA. In 2011, Congress passed legislation that removed the testing requirements for many new books. It also said that testing to comply with CPSIA’s lead standards did not apply to products made prior to the setting of these standards.
It was nice of Senator Pryor and the rest of Congress to make CPSIA’s effect on books a little less onerous. But perhaps it would have been better to do the legislative job right the first time. No one could reasonably think that books will cause lead poisoning in children. There was no need to have three years of disruption, advocacy, and confusion to settle this issue—to say nothing of the extraordinary waste and destruction of books that Senator Pryor’s CPSIA triggered.
 

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