Banning of Pre-1985 Children's Books

It seems that relatively few people are aware that as of February, 2009, it has become illegal to distribute children's books printed before 1985. The Washington Post wrote a comprehensive story about it last March 24th, Book Dealers Told to Get The Lead Out by Michael Birnbaum, but the rest of the mainstream media, even including the New York Times, ignored it.

Now, we're stuck in a classic, Kafka-esque example of the Law of Unintended Consequences. Unless they are willing to spend $300 to $600 per book to ascertain that its lead content is within safe limits, no one can legally do anything with a pre-1985 children's book except throw it away. The penalty has been set by law as a fine of up to $100,000 for each violation.

Meanwhile, no one has yet come up with a single case in which exposure to a pre-1985 book has ever caused any child to develop an elevated blood lead level, much less a case of lead toxicity.

Walter Olson, a senior fellow of the Manhattan Institute, has written an excellent discussion of the problem for The City Journal, The New Book Banning. He has also posted about it several times on his personal blog, Overlawyered, most notably here: CPSIA and Vintage Books. For all of his posts on the subject since February 24, 2009, including dozens of links to other useful resources, click here.

Among Walter Olson's many excellent links is this outstanding article in The New Atlantis magazine by Elizabeth Mullaney Nicol, Keeping Books Safe: A Bad Law Threatens Our Past. Here are Olson's comments on the article in Overlawyered, CPSIA and books: “A bad law threatens our past”.

More recently, Jonathan Adler, Professor of Law at Case Western Reserve University and one of the group responsible for The Volokh Conspiracy blog, posted The End of Vintage Kids' Books?

The CPSIA law itself is immensely complex, leaving its enforcement open to considerable bureaucratic discretion and arbitrary caprice. As you will learn, to date, no one has been able to get reliable information on exactly what the law means in given situations. In fact, the CPSC's Guide to the Consumer Product Safety Improvement Act (CPSIA) for Small Businesses, Resellers, Crafters and Charities (PDF) is quite nebulous about precisely which measures are necessary to assure compliance in a given situation. Compliance would be difficult enough in a large organization with a separate Compliance Department. In a tiny one- or two-person business, it would be an impossibility.

At the time it was passed and signed into law, few realized the devastating effects of this new law. By November of 2008, though, the word had begun to circulate among libraries, dealers in used books, small manufacturers of children's toys, and thrift shops. Many of these people deluged the Consumer Products Safety Commission with thousands of justified, well-documented complaints. As a result, on January 30, the CPSC issued a stay postponing enforcement of the law for one year. However, there is far less to the stay than there seemed to be at first glance. It merely affects the enforcement of the law, not the requirements for compliance with its standards. In other words, its practical effect is more to agree to look the other way for a year – to relieve the CPSC of responsibility for policing violations of the law – than to excuse businesses from compliance.

For example, while the CPSC will not prosecute a used book seller until 2010, and that seller is not obligated to test his books for lead content, he is nevertheless obligated to insure that all of the books he sells after 10 February 2009 do not exceed the 600 ppm lead level which went into effect on that date. How he is supposed to be certain of compliance in the absence of testing, as well as what may happen to him in 2010, are left to his imagination.

A few days ago, I posted about this issue on the forum at Distributed Proofreaders. One respondent, who does not seem to comprehend the seriousness of the problem or the lack of any scientific justification for this book ban, wrote:

According to the Consumer Product Safety Commission, the agency charged with enforcing the act, lead in the books' inks could make its way into the mouths of little kids.

My reply to her was as follows:

Let's apply a modicum of common sense here, please.

First, we do not need an agency of the U.S. Government to tell us that anything that will fit can make its way into the mouths of little kids, as well as into their nostrils, ears, and other body orifices. Just ask any pediatrician. But does that mean, for instance, that just because dried beans can make their way up children's nostrils and require surgical extraction, we should outlaw dried beans?

Second, even in the unlikely event that a child were to ingest several entire pages from an old book at once, the dose of lead he would absorb even under a worst-case scenario is orders of magnitude below that which would cause toxicity.

Modern testing methods have become so exquisitely sensitive that we can now detect a minuscule trace amount of nearly anything anywhere. However, it's important to maintain one's perspective in evaluating those test results. We should not jump to the unwarranted conclusion that barely detectable trace amounts of toxic substances ought to be of just as much concern as physiologically significant amounts which are orders of magnitude greater. Indeed, certain minerals -- not lead, but, for example, selenium, are essential nutrients in trace amounts, but deadly poisons in higher doses. "The dose makes the poison."

CDC considers a blood lead level of 10 µg/dL or greater to be significant in children. Its recent data indicates that since the late 1970s, average blood lead levels in children have dropped approximately 80%, essentially to the background level of between 2 and 3 µg/dL. The remaining pockets of high blood lead levels in children occur in those living in poor urban areas, in old housing, and in conditions of rank poverty.

Bottom line: While there are still a few areas of the U.S. in which children may have unacceptably high blood lead levels, there has never been any association ever demonstrated between high blood levels in children and exposure to books printed before 1985. Destroying those books will not help those unfortunate children at all. On the other hand, though, destroying them will most assuredly deprive future generations of children of the cultural enrichment they might have absorbed by reading those books.

While it's true that SOME of the old books have been reprinted in new, guaranteed lead (and phthalate)-free editions, for economic reasons, most have not and are not likely to be. In addition, most of these newly reprinted books have not been reproduced in their original form. Instead, they have been re-edited – bowdlerized, rendered politically correct, and thoroughly disinfected of any language that might possibly cause offense to one of the many professional offense-taking groups out there. In many cases, even the original illustrations are replaced by balanced, politically correct substitutes. Therefore, these reprinted versions cannot possibly convey the same experience as the originals did when we read them as children.

I thought it was interesting that in a post on the topic of the CPSIA and its effect on children's books and toys, ShopFloor blogger Carter Wood linked to the Project Gutenberg text of the classic 1922 Margery Williams Bianco story The Velveteen Rabbit. He considers it an allegory to the CPSIA situation:

The Velveteen Rabbit captures so well the horrible, even cruel effects of the Consumer Product Safety Improvement Act, which has led to destroyed toys and children’s books. Excerpt:

And so the little Rabbit was put into a sack with the old picture-books and a lot of rubbish, and carried out to the end of the garden behind the fowl-house. That was a fine place to make a bonfire, only the gardener was too busy just then to attend to it. He had the potatoes to dig and the green peas to gather, but next morning he promised to come quite early and burn the whole lot.

As he so often does, Mark Steyn came up with one of the most succinct explanations of why this book banning is so wrong that I have yet seen:

A nation’s collective memory is the unseen seven-eighths of the iceberg. When you sever that, what’s left just bobs around on the surface, unmoored in every sense.

Last March, James Lileks, the Minneapolis Star-Tribune's great columnist and blogger, wrote Whoa! Lock up those kids' books chock full o' lead, including this great line:

The law seems to presume that children, having read and enjoyed a beloved story, will eat it.

It's hard to believe that something like this could happen under the radar in this once-free country, but nevertheless, it has. Now, we must do what we can to cope with this new reality.

Members of the public who have learned about CPSIA and its many (presumably) unintended consequences have been deluging the CPSC with angry complaints. In truth, though, their complaints are misdirected; the Commission's hands are tied. The language of the law is so specific and so strict that it leaves the Commission very little room to exercise any degree of discretion, to say nothing of common sense. The only way that we will ever get relief from this onerous, nightmarish new law is to insist to our Senators and Representatives that they act to amend it as soon as Congress reconvenes. Time is truly of the essence. 10 February 2010, when the one-year stay (itself of questionable legality) expires and the CPSC begins full enforcement, will be here before we know it.

8/9/09 19:30 CDT UPDATE and BUMP:
Commenter Wacky Hermit was kind enough to inform me about this useful site, What is the CPSIA?, which deals with the broader effects of the CPSIA, and doesn't concentrate solely on books.