Hold a Garage Sale; Break the Law?

Earlier we showed you how your home computer can turn you into a criminal. Now it’s the toy you sell to your neighbor at a garage sale or yard sale. In the name of product safety, a 2008 law limits the sale of used toys, clothing and other items. But is this really about product safety? Or is it about cutting off the sale of used items so manufacturers can sell more new items?

The Consumer Product Safety Improvement Act of 2008 says you may not sell a recalled product, a toy with lead paint over certain limits, or toys or children products that contain any of six chemicals used to make plastic more flexible, durable or transparent. Of course, knowing that a toy has been recalled, contains outlawed levels of lead paint or contains an offending plastic may require hours of internet research or setting up a lab in your basement.

The law does not affect just companies who make those products. As the Consumer Product Safety Commission (CPSC) says in its Handbook for Resale Stores and Product Resellers, the law also applies to ”thrift stores, consignment stores, charities, and individuals holding yard sales and flea markets.” Although the CPSC doesn’t say it directly, it also includes things you might sell (or give away) on EBay, Craigslist, FreeCycle and similar websites.

The CPSC says it doesn’t have the resources to send out undercover investigators to paw through your garage sale for toys and kid’s books that violate its safety standards. (Which raises the question of why the law is there if there’s no intent to enforce it, but we’ll leave that to the philosophers to debate…)

In a rather generous understaement, the CPSC handbook says “[t]he implementation of the [2008 law] will have dramatic changes for the marketplace.” It goes on to say that ignorance of the law is no excuse.

History of the Law

You may remember the many recalls of Chinese toys in 2007 and 2008. In June 2007, many Thomas & Friends wooden train sets were recalled because of lead paint. The next month Hasbro recalled a million Easy-Bake Ovens after 249 reports of children getting their hands or fingers caught in the oven’s opening. And then in August and September, Mattel recalled millions of its products – though it turned out that many of the “defects” were not manufacturing defects but design defects that Mattel later took responsibility for.

On November 1, 2007, Representative Bobby Rush (D-Ill.) introduced HR 4040, the Consumer Product Safety Modernization Act. The House passed it on December 19, 2007 by roll call vote under a suspension of the rules to cut debate short. When you see a bill handled like this, it’s usually considered non-controversial legislation. There were no nay votes. The Senate passed its own version of the bill on March 6, 2008 with only 13 nay votes. Renamed the Consumer Product Safety Improvement Act of 2008, President Bush signed it into law on August 14, 2008.

It is Illegal to Sell Recalled Products

It is now illegal to sell, even in a yard sale, a recalled product. You can check for recalled products online. Don’t even try to use the Product Description Search which is supposed to let you search “for a specific recalled product, including words that may be on it or its packaging.” It’s useless. Instead, click on “Search for Recalls” from the main screen.

Or, if you’re not getting enough emails already, sign up to receive emails about recalls. Or use the CPSC’s toll-free number, 800-638-2772, to hear about recent recalls. You can press “0″ to talk with a live person.

It is Illegal to Sell Children’s Products with Too Much Lead Paint

It’s also illegal to sell children’s products “if they have more than the allowable limit of lead content. Toys, clothes, furniture, books, jewelry, blankets, games, CDs/DVDs, strollers, and footwear may all be considered children’s products.”

How do you know if too much lead is in the paint? The CPSC gives you 4 choices. Test it – though it says that’s not required. Don’t sell it. Use your “best judgment based on your knowledge of the product.” (Right. You and I are going to know how much lead paint is on a toy?) Or contact the manufacturer. Uh huh. The handbook does say there is a reliable screening tool for lead. Just go out and buy yourself an X‐ray Fluorescence machine.

Maybe those limited choices are why you read stories about how Goodwill stores (and other stores) are pulling kids clothes, toys and books from the shelves.

The CPSC is quick to say that you can sell some products that violate the “lead paint” law until it issues final rules – as long as you don’t have actual knowledge that the Thomas Train set you’re selling doesn’t have unacceptable levels of lead paint. Unless you keep a journal where you’ve recorded seeing a newspaper article about the book you want to sell, you’re probably okay. Of course, better check with the CPSC to see if they’ve issued those final rules!

It is Illegal to Sell Children’s Products Made of Certain Plastics

The prohibition on chemicals used in some plastics is much harder to comply with. Three phthalates (that’s the scientific term), DEHP, DBP, and BBP, have been permanently banned in concentrations of more than 0.1% in children’s toys and child care articles. “Child care articles” include bibs, child placemats, cribs, booster seats, pacifiers and teethers.

Three other chemicals, DINP, DIDP, and DnOP, have been outlawed in concentrations of more than 0.1% pending further study and review by the Commission and a group of outside experts. This prohibition applies to child care articles and toys that can be placed in a child’s mouth or brought to the mouth and kept in the mouth so they can be sucked or chewed. Think of squeeze toys, teethers, bathtub toys and uninflated pool toys.

The CPSC admits that “[u]nlike lead, where there is a reliable screening tool (the X‐ray Fluorescence machine), there is not a screening device to detect the presence of phthalates.” So, what are your options? “[Y]our safest course is not to sell or accept certain products (unless you know they don’t contain phthalates).”

It is Illegal to Sell Some Children’s Products with Small Parts

The CPSC says you should not sell toys, books or games that would appeal to a younger child and that have small parts or that are easily breakable into small parts. This includes dolls and stuffed toys that have eyes, noses or other small parts that are not fastened securely, and puzzles. It also includes nursery equipment, infant furniture and equipment such as playpens, strollers, and baby bouncers and exercisers.

What is a “small part”? It is anything that “fits completely into a specially designed test cylinder 2.25 inches long by 1.25 inches wide that approximates the size of the fully expanded throat of a child under 3 years old.” I guess we need to go out and buy one of those “specially designed test cylinders.”

It is Illegal to Sell Some Children’s Clothing

If you plan to sell children’s clothing at your garage sale, you need to make sure it meets four separate standards.

Flammability: It must meet government flammability standards.

Lead Paint: It must meet the lead paint standards. Zippers, snaps and other metal and plastic adornments on a child’s clothing may contain lead.

Small Parts: If any snaps, pom‐poms, zipper pulls or buttons can be pulled off a small child’s garment, it should not be sold. The CPSC suggests you give a strong tug to these pieces before you sell them. If something comes off that could choke a child under the age of 3, do not sell the garment.

Drawstrings: Before selling children’s (age 15 years and younger) check garments with drawstrings: for hood and neck drawstrings, remove drawstrings from the hood and neck of jackets and sweatshirts; for waist and bottom drawstrings, trim drawstrings so that no more than to 3 inches extends from the garment on either side.

And It Is Illegal to Sell Many Other Things

The CPSC handbook goes on to talk about cribs with the instruction that if a crib is dangerous, you should destroy it. It also talks about mesh‐sided play yards and cribs, portable wooden cribs, and wooden playpens with the same instruction if they contain hazards. There are instructions dealing with magnetic toys, combination infant car seats/carriers, baby walkers, toy chests, bath seats, hair dryers, bunk beds, bean bag chairs, mattresses, and halogen floor lamps.

Final Thoughts

It’s understandable that we want to hold companies who make dangerous products accountable for those hazards. But extending those same rules to you and me when we hold a garage sale? And making charities like Goodwill responsible when they sell toys given to them? And what’s next? Will we have to check the birthday gifts we give?

Again I ask, is this really about product safety? Or is it about cutting off the sale of used items so manufacturers can sell more new items?

What are your thoughts? Your experiences? Share them by leaving a comment.

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