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5/2/2009

By Wayne Pierce

Because of the CPSC's decision on January 30, 2009, to delay enforcing SOME testing and certification requirements, the resulting confusion has put industry in even more quandary and spawned a number of myths.

Myth #1: We can now delay our efforts to comply for the next 12 months without any consequences.

Truth: Although the CPSC has covered its own butt and bought time for its own inactions, the fact remains that there are 2 federal statutes imposing a series of obligations on operators. The CPSC cannot re- write the law, and the CPSC was careful to remind operators that its stay of enforcement

(1) "does not provide any defense or excuse for non-compliance with the underlying
standards or bans,"

(2) nor does it relieve those in the chain of distribution of the responsibility to "meet all applicable product safety rules ... or similar rules, bans, standards, or regulations" under any CPSC-enforced statute.

Myth #2: We now have no reason to comply with these laws.

Truth: It has been obvious for months that the CPSC was so over- burdened that it would not be able to aggressively perform its duties. Rather, the threat to operators remains vibrant because of:

-Public complaints
-Media coverage and investigative journalism
-Recalls
-Whistleblowing employees
-Liability or consumer protection lawsuits
-Investigation and enforcement by state Attorney Generals
-Investigation by consumer advocacy groups or activists
-Opportunists and aggressive lawyers pursuing litigation and counsel fees
-Environmental bounty hunters

It is also significant that the CPSC's stay of enforcement is limited to "manufacturers, including importers," and does not purport to address the responsibilities of retailers (i.e., operators) who "step up" and assume the responsibility of non-performing manufacturers.

Myth #3: We do not have to do anything right now.

Truth: The CPSC was careful to note that it will continue to enforce (and industry remains obligated to comply with):

-Third- party testing and certification of children's products for lead in paint or other surface coatings
-Third- party testing and certification of children's cribs
-Third- party testing and certification of small parts in children's products
-Third- party testing and certification of children's metal jewelry

R. Wayne Pierce, the "adventure lawyer," has practiced law since 1982, nearly all of which has been intimately devoted to the quest for adventure.
In 2005, Wayne left his big law firm to open the industry's only micro-niche legal practice, Pierce AdventureLaw, in Annapolis, Maryland, and pursue his dream of protecting the adventure that makes life worth living. Wayne is a disciple to
doing this one thing well for theme parks, waterparks, or extreme sports parks; carnivals, fun centers, or fairs; resorts, adventure sports, or just plain sports.

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