By JODI SOKOLOWSKI
Buffalo Law Journal

Jerry Ciesielski wasn't worried that sales at The Good Toy Shop would slip when toys were recalled due to high lead content last year. That's because the Orchard Park toy store he owns specializes in American-made products from smaller manufacturers.

"Independent speciality toy shops like myself deal with a lot of smaller companies who are very particular about their safety," said Ciesielski.

When the toy industry voluntarily recalled hundreds of toys with unsafe lead content in 2007, consumers started actively looking for toys made in the United States or Europe, which requires mandatory testing and enforces even higher standards.

Ciesielski said his store, as well as speciality toy stores nationwide, saw an increase in business during the holiday season.

"I believe the lead-paint scare helped us," he said. "We're riding the wave of customer awareness."

And while media reports of the recalls sent manufacturers and consumers into a near panic, many industry figures believe the overall impact for the American toy industry has been positive.

Industry reaction

Responsible toy manufacturers have been responding to consumer concerns by tightening quality-control methods and increasing their testing procedures to prevent "doubtful" products from entering the market, according to the Toy Industry Association Inc.

"In 2008, enhanced product testing and certification programs will reassure (consumers) that toys are appropriately inspected, tested and certified as complying with U.S. safety standards," said Adrienne Citrin, the Toy Industry Association's public-relations manager.

Fisher-Price, headquartered in East Aurora, implemented a three-point safety check in August, said spokeswoman Juliette Reashor. First, all paint is tested before used on its toys. Then it conducts unannounced inspections at every stage of production. Finally, the manufacturer tests finished toys at the end of every production run.

"We have a very rigorous testing process in place," she said. "We're constantly looking for ways to ensure the safety of our toys. Nothing is more important to us than children's safety."

Put to the test

While responsible manufacturers conduct thorough testing, which is voluntary in the United States, they can't always guarantee the quality of materials used in the toys, which are often made in production plants overseas, explained lawyer Neil Goldberg.

The Goldberg & Segalla LLP partner said "mischief" arises when, for example, a Chinese plant that promised to deliver 1 million pieces to a manufacturer can't fulfill the order and subcontracts out to produce the remaining items.

And since 75 percent of toys sold in the United States are made in China, according to the Toy Industry Association, it can be difficult for companies to ensure that comprehensive quality-control procedures are being followed - even when thorough inspections are conducted at random.

"The problem is, in some instances those procedures are not always followed by vendors in China," said Goldberg, who specializes in regulatory matters for domestic and international corporations.

Hard to prove

Recalls do not preclude a manufacturer from being sued if someone was injured from the product, explained Tom Drury, chair of Damon & Morey LLP's general-litigation department.

"The product-liability concerns don't necessarily go away," he said. "But it gets tricky when you get into a specific product-liability suit."

However, the threshold for consumers to prove that they were injured from a product that was eventually found to be unsafe is higher than most people would expect.

"Most plaintiffs won't be able to meet their burden of proof and show someone is hurt if exposed to a miniscule amount of lead," Goldberg said. "Those claims are dominantly meritless."

The Consumer Product Safety Commission reports that the amount of lead involved in most lead-related recalls is so minimal that it could not cause a serious health risk to a user, Goldberg explained.

"However, lead is a banned substance, so consequently, the products (may be) recalled," he added.

Recalls for lead-in-paint issues in all of 2007 involved "a small fraction of 1 percent" of all toys sold, the Toy Industry Association reported.

"Statistically, toys continue to be among the safest consumer products available, as they should be," Citrin, the industry spokesperson, said.

For Fisher-Price and its parent company, Mattel, .5 percent of its more than 800 million products manufactured were recalled for lead paint in 2007, according to the spokeswoman.

"So it's really a small fraction of our total production," Reashor said.

More recalls to follow?

Experts say consumers shouldn't be overly concerned with recalls, especially if they are kept aware of the recalls and either return or discard the item.

The problem, Goldberg said, comes when irresponsible manufacturers do not conduct their own testing or give adequate notice of recalls.

Ciesielski advises consumers to look on packaging for the CE mark, which is mandatory in Europe and denotes that the toy met testing for lead paint. The European Union allows 60 parts per million of lead, compared to 400 parts per million in the United States.

"We carry a lot of toys imported from Europe because they make sure their toys live up to these standards," he said.

"(Manufacturers) will turn over every stone to make sure they're in full compliance," said Damon &Morey's Drury.

However, Goldberg warns, human error can't be eliminated in manufacturing, no matter how much testing is required.

"I can't tell you it's over, but I can tell you the worst is probably behind us," he said.