CPSIA: Malcolm Smith Riding To The Rescue Of Hard-Hit ATV Industry

CPSIA update: Riverside, California, where kids are wiser than Congressmen, saw an organized and advertised act of civil disobediance this week:

In defiance of the Consumer Product Safety Improvement Act of 2008 - or CPSIA - which prohibits the sale of youth motorcycles and ATVs deemed unhealthy for children under 12 due to supposed high-levels of lead content, motorcycle dealer Malcolm Smith will sell these banned vehicles as a sign of protest.

Retailer and off-road motorcycle legend Malcolm Smith sold three children's bikes, which, according to the letter of the new law, could cost him a grand total of $300,000 in fines:

"We're selling a few bikes, and only a few because I can only afford so many fines!" Malcolm Smith said with a laugh. "I'm going to have to ask the public to donate to pay them if they put me in jail."

In their attempt to reduce the possibility of children contracting lead poisoning from toys, Congressional wisdom seemed to have been running on empty since their CPSIA over-reaction became law this February. The vague wording of their new consumer protection law means that real children's vehicles such as motorbikes and snowmobiles can fall under the CPSIA's mercurial reach as well as toy versions of them, since they are all products manufactured for children aged 12 years and under.

As part of his protest, and as a revelation of how little contact the Washington ruling elite seems to have with much of anything out of the doors of Congress, let alone the outdoor off-road vehicle industry, Malcolm Smith points out how the law should be affecting the fishing industry:

As an example of how ridiculous he believes the new regulations to be, he pulled out a bag of lead split fishing sinkers that he purchased at a sporting goods store down the street from his shop. Anybody could go in and buy them, he said, and most of the time people use their teeth to clamp them down on the fishing line.

The tipping point that sparked Smith's high-profile protest seems to be the singular incident when he surprised a customer with the news of the CPSIA's existence:

“Not long ago, about a week ago, a woman came in and was going to buy a bike for her daughter so her whole family would be able to ride together in the desert,” Smith said. “And I said, ‘You can’t buy one.’ She could not believe it. “Then, I just had enough.”

... Smith figures he’s lost at least $5,000 in net profit since Feb. 10, on lost revenues of more than $30,000 for units and parts and riding gear that he couldn’t sell. The Motorcycle Industry Council estimates that the ban could cost the industry $1 billion this year, and Dealernews magazine estimates there is more than $100 million of unsold inventory sitting in dealer storage areas.

Public outrage has been muted because the public in general had been kept in the dark by a largely indifferent mainstream media. (Although that is slowly changing, as the effects grow too large and too far-reaching to continue to ignore.) Specialized media, however, has definitely not been asleep at the wheel in their reporting of the ongoing conflict between good intentions and common sense.

Fortunately, the attention of the specialized media has been sufficient to get Federal wheels turning in Congress and the Senate, to finally start addressing the CPSIA overkill:

The House Committee on Energy and Commerce will consider H.R. 1510, introduced by Rep. Denny Rehberg of Montana. The short bill amends the law to allow the CPSC to exempt dirtbikes, ATVs and snowmobiles — but only if the commission determines that it is not technologically feasible for the vehicles to comply with the lead limits due to necessary components.

More important, the bill strikes out the word “any” from a certain passage of the law. This use of the word, the CPSC has argued, prevents it from exempting powersports vehicles.

The second bill, S. 608, introduced by Sen. Jon Tester (also of Montana), will be considered by the Senate Committee on Science, Commerce and Transportation. The legislation exempts vehicles intended primarily for children ages 7 and up. Much broader than the House bill, it also excludes all pre-owned children’s products and repairs made to children’s products

If this post is your first introduction to this unbeliavable story, may I direct you to the best resource for continuing coverage of the CPSIA controversy: Walter Olson's reporting at Overlawyered.com. (A tip of the helmet to Overlawyered for many of the links used in this post.)

For a quick overview of the story so far, I highly recommend the interview conducted with both Walter Olson and attorney Gary Wolensky earlier this week by radio talk show host Hugh Hewitt. Audio of the interview can be heard here, my transcripts are here and here.