Saturday, March 21, 2009

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 (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.


truepeers said...

Any more news on this ?

I know you have pointed out that this crazy legislation is not Obama's doing but the child of a Congressman from Hollywood fantasyland, Waxman.

Still, I would guess that we will be seeing a lot more civil disobedience in the next few years. It is what free men and women must do when faced with insanely unrealistic or tyrannical government. And, of course, since the freedom lovers take such a personal risk, but also gamble with the basis of the free society, the rule of law, it is incumbent on the rest of us to sit up and pass judgment, in the name of the fundamental law on which a free society is founded, i.e. the basis for constitutional democratic self-rule.

Get the leadophobic lead out!

Charles Henry said...

Any more news on this ?

Of a sort: no major media outlet seems to have commented on the story so far. Only the specialized media connected to the motor sports and racing world showed up to cover the event.

The first photos I saw of Malcolm Smith sitting in the middle of a crowd in front of his motorcyle shop had several "media-types" in view, with microphones, cameras, etc.

Turns out they are all from publications or outlets that specialize in stories connected to this industry.

Thanks to the internet, I've listened to a number of archived broadcasts of radio show discussions about the CPSIA. An interesting pattern emerges: whenever the radio talk shows bring a guest like Walter Olson on the air, to discuss the CPSIA, the host usually says "my wife who sells crafts had been bugging me to do a show on this story", "my friend is a lawyer for such-and-such industry, I couldn't believe it when he started to tell me about this crazy new CPSIA law..", and so on. The host didn't find about it through the media, they found out about it through family or friends whose livelyhoods had already been hurt by the CPSIA.

Everyone is as baffled as they are frustrated by the indifference with which this catastrophe is being covered by the sleepwalking mainstream media. It's not as if there's no human interest in a legislative nightmare like this one!

Unfortunately, the Malcolm Smith chapter of the overall story reveals just how dependant North America has become on "the news" as the authority to tell them what's going on in their world. If it's not on television, it's because it's not happening, or it's not really important... because if it was important, and if was really happening, it would've been on tv.

Anonymous said...

This is Soo Unbelievable to me or anyone that knows about this. The only reason I found this out was that I was checking Transword MX site to see the weekend Super Cross results!

What the h**l is wrong with these people?!!!

We have to stop these crooks in Government before they completely ruin our country!!!

How come I haven't heard one word from any of my local cycle dealers, which there are probably over 8 cycle and atv dealers within 20 miles from my house! They shoud be marching to every local tv station and newspaper(if they are still printing) to get the word out.
Here in Michigan, I think the state has more all terrain vehicles and cycles than all but 2 states. I will call a couple dealers Thursday to see what is going on here.

Troy H

Charles Henry said...


I absolutely agree with you, it is strange indeed why so few people are bothering to make noise about this story.

I'm surprised your dealers haven't heard about these new regulations, they've been well publicized within the specialized media directed at motorsports. It's only the mainstream media that has been ignoring the problems with CPSIA, although to be fair the local media of many of your cities has been vigilant in reporting on the economic damage it's been causing.

Maybe the cycle shop owners believe that the law is such a crazy, ridiculous over-reaction, that it will be changed in short order, without their having to do anything about it.

That ain't necessarily so...!

Thanks for helping spread the word about the CPSIA, I'd appreciate hearing back from you about what the Michigan dealers you contact have to say about the situation. If the Michigan media won't cover the story, I'd be willing to do what I can to help get the news out from here.