Tuesday, June 30, 2009

A Scary Bedtime Story

Once upon a time there was a lady named Jennifer. Jennifer loved to make jewelry for little girls who wanted to pretend they were princesses. She sold her jewelry over the internet to many lands, but she especially liked to sell jewelry in her homeland, the faraway state of Illinois.

Illinois was once a beautiful land, but an evil dragon called Plumbum had made his nest there, in the middle of the city Chicago. Plumbum came and went where he pleased in Chicago, and soon his poisonous droppings were everywhere. The droppings made the children sick, and soon people were complaining to the King of Illinois about the dragon and his mess. "Somebody should do something about this," they all said.

So the King of Illinois went out to see what he could do about the dragon Plumbum. First he tried just banishing the dragon. But Plumbum was a wily dragon, and he could not be banished. Then he tried to pay Plumbum to go away, but there was no amount of money that Plumbum found adequate. At last, seeing that Plumbum could not be vanquished directly, he spread a proclamation throughout the land of Illinois. Anyone caught being near any of Plumbum's wicked droppings would be punished severely. You could not buy or sell or even give away anything that had been contaminated with the droppings. The King of Illinois knew that Plumbum would not obey him, but his populace would.

The people tried to obey, but sometimes people make mistakes. And Jennifer, sadly, was one of those people.

Jennifer tried as hard as she could, of course. When she went to buy beads and clasps for her jewelry, she asked if they were free from the poison droppings of Plumbum. The merchant who sold her the supplies said that they were. Now Jennifer and the merchant were kind and good people, but an evil woman named Prig hated Jennifer for being so kind and good. Prig knew a magic spell that could reveal the presence of Plumbum's droppings. She secretly bought some of Jennifer's jewelry, then applied her magic spell. When Prig found that one little corner of one of Jennifer's bracelets had touched the dragon droppings, she cackled with delight, for she knew that the King of Illinois would punish Jennifer severely.

And thus it was that one beautiful sunny day, as Jennifer was enjoying the sparkle of her beads, the King's guard came to take her away. Jennifer cried as the King's guards threw away her beads and all the bracelets and necklaces and earrings she'd made. The guards searched her house and her cow shed and even took away her cow. Jennifer did not know what she had done wrong. But the King would not hear it; the law was the law, and Jennifer must go to the dungeon and suffer for one year in the darkness.

In the dungeon, Jennifer met other people who had been accused of serious crimes like hers. They were thieves, cutpurses, evil apothecaries who had sold harmful poisons, and prostitutes. These people all wondered that such a good person as Jennifer would be confined to the dungeon like them. Was selling jewelry such a crime? But the King of Illinois held firm. It was for the best, he said, that people be taught a lesson. No one should go near the poisonous droppings of Plumbum.

When Jennifer emerged from the dungeon a year later, blinking into unaccustomed sunlight, she noticed that things had changed in the city Chicago. Children had no toys and no sparkly jewelry with which to play. They just sat around hitting each other for fun. Everything in their houses was made of cloth. Even their bowls and spoons had to be made of cloth. Some of the parents had been kicked out of their houses because droppings had been found there and they could not be scrubbed off. Jennifer saw the children, dressed all in cloth and trying to eat from cloths, and was sad. She knew it would never be safe to make jewelry, or anything else, for children ever again.

The end.

The characters in this fairy tale are made up, but Plumbum the Dragon is real and the story, sadly, is true.


Behold, if you dare, 410 ILCS 45, the Lead Poisoning Prevention Act. It is a scary tale indeed.

Now I am not a lawyer, and I'm not all that familiar with Illinois' other laws. But I can read, and I read through the law. A few things I noticed:
  • Anything with any part of it having greater than 600 ppm of lead is considered a "lead bearing substance" and it is illegal to sell to ANYONE in the state of Illinois, not just children, unless it bears a dire warning that it is a harmful poisonous substance on a tag no less than five square inches in size. So expect to see "WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD. KEEP OUT OF THE REACH OF CHILDREN." on adult jewelry, ballpoint pens, ATV's, automobile parts, vinyl purses, and other items that by necessity contain that much lead.
  • The Illinois statute does not require testing like CPSIA does, but it DOES require you to know the lead content is under 600 ppm. So get out your XRF goggles*, folks: this means that ALL products (outside of known lead-free categories like textiles and precious metals) sold in Illinois, even ones for adults, have to be tested for lead to determine whether they have lead in excess of 600 ppm, so that you'll know if you have to affix this warning label or not. This provision is in effect NOW.
  • Inaccessible electronic components are exempt from the lead limits, but their definition of accessibility differs from CPSIA's. For example, Illinois allows electroplating as a barrier, where CPSIA does not. Also CPSIA's accessibility criteria cover more than just electronic devices, while Illinois' only covers electronic devices.
  • CPSIA is supposed to supersede this law, but this will likely be challenged in court.
  • Everything used in children's residences, schools, day care centers, or other children's areas has to be under the 600 ppm limit, period. That includes items that will be used by adults in these places. No warning labels allowed. Test, test, test.
  • Children's jewelry, toys, and feeding/care items for children under 6 (not age 3 like CPSIA) are subject to the uber-stringent limit of 40 parts per million of lead, where CPSIA's most restrictive limit is 100 ppm. Jewelry in particular is very hard to test using XRF testing because of its frequently tiny and irregular surface areas, and XRF testing has difficulty resolving lead levels that small. This leaves only the expensive wet-chemistry testing option to determine if jewelry is compliant. This provision takes effect Jan. 1, 2010.
  • Violation of this law is a Class A misdemeanor, punishable by up to a year in jail, confiscation of your goods, and a fine of $2500 plus $250 for every day you're not in compliance. Other Class A misdemeanors in Illinois include theft, prostitution, battery, sexual assault on a child, possession of drug paraphernalia, and child endangerment. Selling children's jewelry with 50 ppm lead, a legal act under CPSIA, is set to become a crime in Illinois tantamount to sexual assault on a child. Possession of children's jewelry with 50 ppm lead with intent to sell is going to be treated the same as possession of drug paraphernalia.
  • This law has many more odious features having to do with mandatory lead testing for children in "high risk" areas, which includes all of the city of Chicago. Children are required to have their blood tested for lead in much the same way as they are required to be vaccinated-- they are not allowed in school or day care if they are not. The law specifically states that people with religious objections are not required to have the tests done, but nowhere does it say that schools and day cares can admit those who have not had the tests done. So sorry, religious objectors, I guess it's homeschool for you. Hope it's legal in Illinois.
  • Another disturbing provision of the law allows health inspectors to search your home if your child's mandatory lead test turns up above 10 ug/dl, the CDC's "level of concern." As long as they do it at a "reasonable" time of day, they are allowed to come in upon presenting their credentials to whoever is home. If they are refused admittance, they can get a search warrant. And if a pregnant lady or a child under 6 lives with you, even if that child has tested negative for lead, if two kids in your building have lead poisoning within 5 years of each other your apartment can be searched too. While searching, the licensed inspectors are allowed to take samples of anything they suspect contains lead, or to take the objects themselves if they are portable, as if it were evidence of a crime. But nowhere does it say they have to log it. They can just take what they want, just like TSA used to do with my husband's tool box when he used to travel for work. Wanna take bets on how long it'll be before someone's jewelry or expensive tool gets "suspected?"
  • And here's what all of this draconian legislation prevents: only one referral was made in all of Illinois in 2008. While I'm sure that one child's parents are grateful to have found out their child had an elevated blood lead level in time to do something about it, is it really worth all this loss of liberty and commerce to have required everyone to go to great expense to help only this one child? Wouldn't the child have been better off if half that money had been donated to a private charitable fund for assisting children in his situation? And how many other children's other problems could have been ameliorated with the money wasted helping this one child with lead poisoning?
Folks, this is ALREADY law in Illinois, and it predates CPSIA. I desperately want this interpretation to be wrong, so if you are a lawyer or you've been in contact with lawyers about this, please correct me where I'm wrong.

If you sell to Illinois, I recommend you take a moment to review this law and decide if you want to continue. And if you live in Illinois... God help you.

* There's no such device as XRF goggles. It's kind of an inside joke between me and my CPSIA friends: XRF goggles allow you to see lead content without having tests done.

Sunday, June 28, 2009

...But Wishes AREN'T Horses

I've been seeing a lot of the attitude that if we only wish hard enough, reality will conform to what we want it to be. We see it in nationalized health care, but today I'm going to discuss it in terms of North Carolina's new "nexus" law.

North Carolina has recently become the latest state to pass a "nexus" law, meaning that they consider a business' internet affiliate in their state as constituting a physical presence or "nexus" in their state, therefore requiring that business to collect sales tax in their state. And predictably, to avoid the nightmare this would cause, Amazon has decided to terminate all their North Carolina affiliates, as they have in New York and other states that have tried to pull this little trick.

Nexus laws are one of those moves that accomplishes nothing good, like sending your pawn in to get killed just for the sake of making a move. It's the kind of move 3rd graders make when playing chess, because they can't think half an inch ahead of their own noses. A state grasping at every source of revenue it can find decides that it's not fair that internet businesses don't have to pay sales tax (it isn't, but life isn't fair and that's a whole other post) and says "Hey, let's find a way to tax the bastards!" Of course, if they were thinking even one move ahead, they'd realize that there's a REASON why businesses don't collect sales tax for every hamlet in each of 50 states: it's just too darn expensive.

Sales tax isn't magical; it's a percentage of the sale. In theory it's the buyer's responsibility to pay it. However, most retailers will collect the tax at the point of sale and remit it to the state at the end of the month, quarter, or year (depending on state law). This costs them time and money, which they expend voluntarily to keep things convenient for the buyer. After all, you need buyers to be happy about their purchase in order to keep them coming back. (If you had a choice between two grocery stores, one of which remitted the sales tax for you and one which didn't, at which grocery store would you spend your money?) So acting as an agent for the state is something that businesses already do voluntarily at their own expense.

And then there's the matter of a state's jurisdiction over interstate commerce, which is supposed to be the province of the federal government. The state has the authority to collect tax on goods whose buyers are in their state, but they most certainly do NOT have the authority to require any business that isn't in their state to act as their agent.

And now consider the complexity of 50 states' worth of sales tax laws. Let me give you just one example, the state of Utah, with which I am most familiar. Utah has a base sales tax rate, and each city has the authority to add to that as they see fit to raise revenue for themselves. So Logan city adds on to fund their parks and zoo, while Tooele adds on for the UTA bus system. Also, staple foods are not taxed in Utah, while prepared foods are taxed. Every quarter I get an update flyer from the Utah State Tax Commission alerting me to rate changes in various towns. Because my revenue level is low enough, I remit taxes once a year; higher revenue businesses submit as often as monthly. Now that's just Utah; there's no reason why any state would have to do any of this the same way. Some states don't have a central tax commission; you have to remit taxes separately to state, county, and city. Some states tax food and some don't, and every state defines "non-taxable food" differently. Some states have different tax rates for different product types. And some states have a byzantine sales tax bureaucracy. Picture this times 50. Now imagine you're Amazon and you sell tofu and tights and mixers and camcorders, and you have to program a database that will keep track of each and every one of these changes and calculate sales tax based on which items are taxable at which address which time of year. If you're only selling clothes or books, these items are taxable just about everywhere. But if you're selling items that are sometimes taxed and sometimes not and sometimes taxed but at a different rate, then you have to decide at what rate each item is taxed in each state and for each locality. You can see how this would quickly turn into a horrible nightmare for a number of states greater than about 4 or 5. The complexity of it increases polynomially.

Can you imagine if Disneyland had to ask their customers which state they were from to determine the proper sales tax rate for every customer that walked into their gift shop? Or if some people who bought a giant lollipop got taxed and some didn't, depending on how their state defined taxable food? No, Disneyland gets to charge everybody Anaheim sales tax because that's where they are. But online businesses have to do exactly this wherever they're required to collect sales tax. They don't get to charge sales tax for where they are, because sales tax "belongs" to the buyer. And that's why online businesses are generally opposed to collecting sales tax differentially for an assortment of states. And they resent it even more when this is imposed on them by people who publicly state that the reason for their opposition is that they're just too goddamn lazy to write the state a check.

It would make perfect sense to make sales tax inhere in the seller's location. Ownership of online-ordered items is usually considered to be transferred at the FOB point (usually the point of shipping) so it would be really easy for most businesses to charge the sales tax rate of the FOB point. And that's exactly why it's never going to happen: it makes too much sense. See, businesses could choose to locate disproportionately in places with a low sales tax, so that they could make things easier AND cheaper. And that would be the death knell of stupid politicians of the "Hey, let's raise taxes MORE!" variety. Plus it too wouldn't be "fair," whatever that means.

Nexus laws assume that businesses (a) aren't doing enough of this voluntary, expensive tax collecting on their own, and (b) are capable of doing more of this voluntary, expensive tax collecting. But these assumptions have no basis in reality. If Amazon would choose to pull out of its affiliate program rather than add collection of an extra state's worth of taxes to its staff's burdens, that should tell you that it costs Amazon more to collect an extra state's worth of taxes than they're losing by taking away their affiliate program. And if politicians were smarter at playing chess than 3rd graders, they'd see that as a useful bit of information. Maybe they'd see that they're inflicting a loss on Amazon, while not actually getting any of that juicy tax revenue they thought they'd lay their hands on. And if they foresaw that this would happen, as many of us do, they'd realize this was not a smart move in the first place, because its sole result would be to antagonize Amazon and its former affiliates, who are now no longer paying taxes on their Amazon income nor sales taxes on what they buy with it.

So they happily eat the goose that lays the golden eggs, and then when there are no more golden eggs they moan about how they just don't make geese like they used to. They wish they could tax internet sales, but they can't. But the fact that it doesn't work doesn't seem to stop them from trying.

You know the old saying: "If wishes were horses, then beggars would ride." But wishes aren't horses, so if you want to get somewhere, get up off your lazy beggar's butt and start walking, and quit sitting there moaning that you wanted a pony.

Saturday, June 27, 2009

Lessons of the Toilet Bowl

Bagel turned 5 today, but his party had to be cancelled because he was sick. I was disappointed to not be able to use all the preparations I'd done for the party, but there was an upside: I now had a whole day with which to work on the toilet.

The kids' bathroom stunk. The wax ring needed to be replaced. Now I've replaced a wax ring before, so I knew how to do it. What I didn't know was that they really, really mean those warnings about not tightening down the bolts too tight lest you crack the porcelain on the toilet base. I honestly had no idea that porcelain was that fragile, or that weak little me (famous for my weak-wristed not-tightening-enough) was capable of tightening down a bolt so that it would break the substrate. But there you go, I busted my toilet while fixing it.

FH The Bargain King found a clearance toilet base that was the right brand and the exact same footprint as our old one, so he brought it home and saved my bacon. Then I got it put in and this time I did not tighten the bolts too much. And so now the toilet in the kids' bathroom doesn't stink any more. The bathroom still stinks a bit because (1) we have pee sprinklers boys and (2) having to take down and replace the entire toilet twice left me with not enough time to clean the rest of the bathroom. But at least the wax ring is done, so we're not leaking raw sewage.

Tuesday, June 23, 2009

Wicked Thought Of The Day

I saw that Wal-Mart is now selling re-useable shopping bags, and I had a wicked thought.

Buy a re-useable Wal-Mart shopping bag. Take it with when you go shopping at Whole Foods. Watch heads explode.