It’s been seventeen years since I tore the wrapping paper off my G.I. Joe Battle Wagon. I believe I ended its electronic-missile-firing life a few months later with a poorly thought out tour through the bathtub. But nearly a score later, it’s not so certain that the Battle Wagon would have had a life to begin with, at least without a lot of testing and retroactive product liability in the form of the Consumer Product Safety Improvement Act.
This is the first Christmas since the testing requirement of the Consumer Product Safety Improvement Act was made effective for toys (the lead ceiling currently has a one year stay). The bill sailed in the wake of the lead paint scare for toys made in China and nearly passed unanimously (lone wolf – Ron Paul) in the House. The Act covers all children’s products, or any product intended primarily for children under 12. This would include hard-to-access microchips in toys and other items not readily removable.
A key provision of the bill is its requirement that all children’s products be tested by third-parties. It isn’t enough for the materials to be of reputable quality; samples of every component must be tested. Writing in Forbes, Walter Olson catches the first wave of unintended consequences. “[N]ew kids’ goods will all have to be subjected to more stringent ‘third-party’ testing, and it will be unlawful to give away untested inventory even for free.” While retailers aren’t required to test themselves, they will be subject to liability if the products don’t conform to the regulatory standards.
The Act contains specific limits for lead content. In addition to reiterating a ban on lead paint, the Act limits lead in other components to less than 300 ppm. In the Wall Street Journal, Richard Posner likened the Act to “killing a gnat with a bazooka”. “Instead of targeting the known sources of lead contamination, this ill-conceived statute extended coverage to the max…” said Posner. These lead limits apply retroactively as well. But there are (very unlikely) exceptions: no testing if you can show “on the basis of the best-available, objective, peer-reviewed, scientific evidence” that a lead product won’t lead to harm. I wouldn’t hold my breath.
This Act can affect technology for toys in a number of ways. The most obvious is higher costs in getting to market. Testing is expensive, and testing the numerous components and combinations of components could be prohibitively so. With electronics, chips are often manufactured by third parties and integrated into toys separately. This could lead to a lot of companies doing the same testing for the same chips once integrated, even with a proven track record.
Additionally, soldering is used in nearly all electronics, and most commercial solder contains some amount of lead. In 2003 the EU passed the lead-limiting Restriction of Hazardous Substances Directive (RoHS), prompting many manufacturers to begin removing lead from all products, and some electronics companies such as Intel have been using lead-free materials for a few years now. However, most commercial solders still contain lead, and lead-free alternatives by manufacturers such as Kester cost up to five times as much as their lead-based counterparts.
A related effect is increased liability, which can both increase costs and deface a company’s public image. Since the 1970’s lead poisoning has cast a dark shadow on paint products, of which toys are the most recent example. Lead poisoning and its effects are real threats, and the absent sensibilities of children pose a unique risk. To avoid potential liability and looking the part of villain, manufacturers will probably pay the “for-the-kids” premium expected by the public, even though the risk of consumption of lead in electronic goods is low compared to the potentially high testing costs. As noted on Popehat.com, no child was injured in the lead paint scare of 2007.
It’s hard to say what effect the Act has had on companies this past toy season. Due to changes in the economy, sales figures probably won’t tell an accurate story as to testing costs, and initial dissidents to the legislation have tended to be on the small side. But the potential for high costs of testing and the even higher liability for violation could limit a lot of technological toys making their way into the market.
Even if lead-free solders cost five times more, I can’t imagine solder is a major cost area for any consumer product. The EU RoHS directive hazardous material bans have had an additional significant effect: the ban on cadmium in electronics sealed the tomb for nickel-cadmium (NiCd) batteries in the EU, probably spurring the earlier consumer market adoption of nickel-metal hydride (NiMH) batteries.