What it would really take to make toys safer.

The law, lawyers, and the court.
Sept. 11 2007 3:21 PM

Played Out

What it would really take to make toys safer.

Illustration by Robert Neubecker. Click image to expand.

Last week, the Toy Industry Association, which represents the country's big toy makers, announced that it wanted the government to impose mandatory safety-testing standards on all toys. While this is a good first step, given the industry's checkered past (forgive me), the sudden hankering for regulation is suspect. The reason so many toys were recalled this summer is not that there weren't enough regulations. It's that toy makers were ignoring the regulations that are already on the books. And the new testing proposal won't stop them from continuing to do so.

It is already illegal for manufacturers to sell toys with lead and small parts. There is also a law that requires companies to tell regulators within 24 hours if they discover one of their products is defective or dangerous. And yet big toy companies dispute this. In a move that is certain to earn him a spot in the CEO Chutzpah Hall of Fame, Mattel's top executive, Robert Eckert, told the Wall Street Journal last week that he disagrees with the 24-hour requirement. His company eventually passes on the information, Eckert said, but "vagaries in the law" allow him to decide exactly when.

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What's new about the toy industry's proposal is that it calls for third-party testing. Rather than relying on their own testers, the manufacturers will turn over their products to independent testing companies, which will certify the products that pass. This could help reduce the time it takes for a toy company or the Consumer Product Safety Commission, the overseeing federal agency, to discover that a toy is dangerous. Currently, that can take quite a while: Curious George spinning tops, recalled last month for their high levels of lead, were on the market for six years before anyone noticed the problem. More than 1.5 million Thomas the Tank Engine toy trains were sold over 18 months before they were recalled for excessive lead.

But lead, despite its terrible reputation, is only a small fraction of the problem. A Canadian study recently found that of all the toys recalled since 1988, 76 percent involved design flaws. Kids choked, were strangled, and were burned by toy makers' design mistakes. When I asked Rick Locker, lobbyist for the Toy Industry Association, what his third-party testers will test for, exactly, he said they'd start with lead and eventually move to other hazards addressed by existing regulations, like small parts. Design flaws were not on Locker's list.

That selectivity is not surprising, because the toy industry has a long history of fighting efforts to rein it in that might lower profits. In 1992, toy company defense lawyer Aaron Locker (Rick Locker's father) went after members of Congress who supported a bill that required companies to put a warning label on toys and games with small parts. The label—now ubiquitous but at that time rare—warned parents that kids under 3 years old could swallow and choke on small parts. "Requiring cautionary labeling on all products may make us feel better as parents and grandparents," Locker said, "but we should not deceive ourselves into believing that there is any evidence which suggests that injuries and deaths will be further reduced." A year later, TIA President David Miller testified before lawmakers to oppose a bill that would prohibit companies from selling balls less than 1.75 inches in diameter for use by babies and toddlers. At the time, about 5,000 children were being taken to hospital emergency rooms each year after aspirating or ingesting small toys or parts of toys. Congress passed the Child Safety Act of 1994, and the rule went into effect—but only over the toy industry's objections.

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