January 7, 2016 UPDATE: Neal Cohen, the Ombudsman for the Consumer Product Safety Commission, got in touch with me this week to tell me about a brand new tool created to help small those of us who make toys and other handmade products figure out exactly what kind of safety testing we’ll need before taking products to market. The tool is called Regulatory Robot. I’ve given it a try and I highly recommend it! At the end of the survey you’ll get a report with the specific types of testing you’ll need to go through.
“I make teddy bears and sell them in my Etsy shop. I probably earn a few hundred dollars a year right now, but I’m hoping to grow my business over time. I sew my bears from fleece, stuff them with polyfill, and use plastic safety eyes.
My bears make great baby gifts, but I worry sometimes whether they’re safe for babies. I mean, I think they are, but how can I really know? And if, god forbid, something terrible happened and a baby choked or something, could I be held liable?“
Does this scenario sound familiar to you? Safety is a big concern for those of us who make things for children. I’ve woken up in the middle of the night worrying that a seam on the bear I just sold might not have been strong enough, or trying to remember if I tied a double knot when I sewed on that button. It’s scary!
Equally scary is the possibility of a lawsuit that could shut down your business and put your livelihood in danger. And what about the U.S. government? Could they come after you, and fine you, if someone reports that your toy is dangerous?
Perhaps you’ve added some wording about safety on your tags or online listings such as, “This toy is not intended for children under age 3,” but wondered if that was enough. Does adding that language really hold any power to protect you and your business?
Looking on Etsy right now I’m really struck by the variety of safety disclaimers sellers have on their shops. Here are two, for example, that seem to contradict one another:
“Filled with premium, non-allergenic, polyester fiberfill, and finished with quality safety eyes, this toy is perfect for children of all ages.”
“Safety eyes are hard to remove, but like any other toys with small parts, please use your judgment when purchasing this for a child.”
So which is it? Are safety eyes safe or aren’t they? Is it that the eyes can be removed and swallowed, or is it that the eyes might contain lead or other harmful chemicals?
Many sellers don’t mention safety concerns at all, even though they’re using those same materials.
One thing’s for sure: there doesn’t seem to be a unified language or behavior around safety standards among handmade softie makers in the United States.
Yesterday I spoke with Neal Cohen, the Small Business Ombudsman at the Consumer Product Safety Commission to learn more about what’s actually required of small handmade businesses when it comes to toy safety in the United States. We would have recorded our conversation as a podcast, but when you work for the federal government getting on a recorded line becomes tricky.
Neal was incredibly nice, and very patient with my questions, but after an hour it became clear to me why there’s so much confusion when it comes to toy safety: the standards are hugely complex. There’s no simple 1-2-3 that you can go through to determine the types of testing your toys might need, or to choose a testing lab. There’s no perfect set of phrases to add to your labels or tags that will properly warn customers and protect you as a maker.
It’s a tangled maze.
What is Actually Required by Law?
In 2008 Congress passed the Consumer Product Safety Improvement Act (CPSIA) which states that all manufacturers must pay a qualified lab to test and certify any product intended for children and that every product needs to be labeled in case of a recall. There is no exception based on the size of the operation. You must go through testing even if you’re making just one teddy bear to sell, or donating your softies to charity.
The testing is done by for-profit companies that have been approved by the Consumer Product Safety Commission and the tests involve two parts: a chemical test for lead and other heavy metals and a physical/mechanical test for the strength of the components. All testing has to be outsourced. You cannot legally test at home.
One bit of good news. Fabrics and polyfill are exempt from lead testing in the U.S., unless the fabric has been screen printed. This means you don’t have to go through that test if you’re making things from fabric. But safety eyes, plastic noses, doll joints, and polybeads used for stuffing all have to be tested. And if you use safety eyes in different colors, every color has to be tested separately.
Supplies that have already been tested and certified by the manufacturer will suffice if you can get a copy of the certificate. If you buy your supplies from a big box craft supply store, though, you may not be able to get the certificates. According to Neal, those stores are selling a component part, not toys intended for children, and aren’t obligated to show you anything.
So, the short version of the story is unless you’re sending your toys out for testing and getting certificates of safety for every material used, you are in violation of the law.
Let’s be honest for a minute now. You’re not doing that, and neither am I. The truth is everyone is breaking the law.
Do We Shut Down Our Businesses Now?
This information can make you feel paralyzed. I’m imagining you, like me, are pretty used to being a law-abiding citizen. So how do we go forward? And what happens to the 49,670 items on Etsy that are currently in violation of the law?
Maybe you should label all your toys as sculptures intended for people 18 and older. Neal says no. Overall, the government deems all plush as toys. That being said, every product is looked at holistically. Exceptions would be made for toys with a clear adult theme, or plush set at a very high price point. If your plush is indeed intended for adults, though, don’t show it in photos with kids or in a child’s room. That kind of marketing is misleading and will work against you.
What about sewing patterns for children’s items? A sewing pattern is not a children’s product and is therefore not subjected to these standards. If someone buys your pattern, sews a toy and gives it to a baby who gets hurt, you’re not on the hook for that. All the more reason to get into the pattern business!
But what if you’ve built your business around selling handmade products for children?
Neal is an ombudsman and as such is very diplomatic. He can only say so much. But from him I learned two basic things. First, it’s important to make the distinction between compliance and safety. Safety means sewing a toy with lead-free fabric, stuffing it with polyfill, and embroidering the facial features so they won’t come off. Avoid plastic parts. It’s easy to make safe toys. Compliance is much more difficult.
Second, the Consumer Product Safety Commission has 520 employees. This is not the Food and Drug Administration with 20,000+ employees. The sheer number of handmade toys on the market far outweighs the manpower available to enforce the law. Neal didn’t say that, but I am.
I wanted to see if what I was concluding was indeed accurate so I reached out to April Putnam. April is an Etsy seller and she heads up the CPSIA compliance team on Etsy. April has worked professionaly as a Product Safety and Compliance Coordinator
with companies that make all kinds of products from jewelry to pet products, ceramics, fashion accessories, toys and apparel. She is a self-described CPSIA geek.
April was able to tell me what Neal couldn’t.
“In my opinion, while CPSIA seems like a huge scary beast, and yes it totally is, the handcrafting community sells in a much more personal way than Mattel or Wal-Mart or corporations. The mind-set of handcrafter’s purchasers is very different as well. I know if I’m thinking about buying a stuffed rabbit toy, made of organic cotton, from a stay-at-home-mom working a craft fair, my mind does not go to, ‘I wonder if she has safety certificates on these?’ If my child pulls a button off of that same rabbit toy and puts it in her mouth, I’m more worried about getting the button out of her mouth and getting on with my day. I’m not going to think about, ‘I wonder if that button had lead in it?’”
“My main message to small batch manufacturers would be to think like big business. And by that I don’t mean hiring lawyers, or consultants, or testing every piece of every item. I mean do what you can, while still making a profit. Work with material suppliers who can provide you with documents for free, track all your materials, where you use them and whom you
sell to. No company can be 100% risk-free, or 100% compliant. You need to look at your company and products, and do what you can to eliminate as much risk as you can.”
I love this advice. It’s real and it’s honest and, most importantly, it means you can keep going with your business. April added one further great piece of advice,
“Tracking labels is an area that people find very confusing and overwhelming. The intent of tracking labels is that end consumers can find you if they have safety or quality issues, and you can find them for the same reason. You don’t have to have complicated batch codes at all. If you are making unique items, you could literally number them 1, 2, 3, etc., and list your website or email. Look at your item and think about how someone would contact you to talk about that specific item. What would they need to tell you three years later, or you to ask them, to answer their question about that button on the rabbit toy?”
To me that’s totally sound advice that we can all act on today, for free, to improve the level of safety of our children’s products, and even bring us a few steps closer to compliance.
I’ll let you draw your own conclusions about safety standards and compliance, but if you’d like to learn more I recommend starting with the Consumer Product Safety Commission. Neal’s Small Business Ombudsman website is a nice introduction to learning about testing. You can find Neal’s email there and connect with him on Twitter, too.
Take a look at The Handmade Toy Alliance, a lobbying organization that works on behalf of handmade toy makers. They actively lobby the House of Representatives and the Senate for CPSIA reform and also serve as a collective voice to the CPSC.
Join the CPSIA compliance team on Etsy. Neal is there, and so is April. Ask your questions and learn what others are
Just a note regarding posts on this blog in general, and this post in particular: I am not an attorney and nothing on this blog is to be treated as legal or compliance advice. You should consult an appropriately licensed legal advisor regarding any questions or concerns you may have related to your own business.
If you’ve considered having your products tested, or if you have questionsa out the law, please feel free to ask them here. I’ll forward any questions to Neal or April that I can’t answer myself. And if you’d like like to express an opinion about testing for handmade children’s products, go ahead! Let’s talk about safety.