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At first, a far-reaching law implementing a lead ban and other toy safety standards sent companies and industry groups into a panic. Then, it sent them running to their lawyers.

The regulations, which went into effect in February, constitute the biggest overhaul of consumer product safety laws since the Consumer Product Safety Commission was created in 1972. Civil penalties for noncompliance can now reach $15 million, up from about $1.8 million. Companies say they're overwhelmed by the requirements of the Consumer Product Safety Improvement Act of 2008, adding that the resource-strapped CPSC has offered little guidance.

Even so, with just 430 staff currently policing millions of products, and plans to grow by only 100 more, the CPSC doesn't exactly have defense lawyers shaking in their Cole Haans.

Lawyers representing industry say they're trying to help clients comply with the law, but that a big part of the job is strategizing about which rules require immediate attention and which ones -- at least for now -- can be set aside.

"You would never say 'you can ignore something,'" said Charles Samuels, a partner at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo who focuses on consumer product regulation. "You simply have to say, in order of priority, this is how I would proceed. ... Hopefully, you're doing that in the same order of the actual risks to the public."

Not surprisingly, the CPSC doesn't quite see it that way. "We will focus enforcement on the areas of greatest risk to children," said agency spokesman Scott Wolfson. "At the same time, we don't want any company to think that they do not need to be in compliance with the new limits and standards that were established on Feb. 10."

ALL THINGS LEAD

Lawyers say figuring out the law isn't an exact science. The Consumer Product Safety Improvement Act was passed in response to a string of high-profile toy recalls in 2007 that cast serious doubt on the CPSC's ability to police children's products, particularly those imported from foreign countries such as China. (Remember those scares over lead paint in Barbie accessories and Thomas and Friends train sets?) As a result, the piece of the statute requiring that children's products contain no more than 600 parts per million of lead has been the focus of much of the media attention on the law.

That makes it an obvious area on which clients can home in, said Quin Dodd, who practices alongside Samuels in the Washington office of Boston-based Mintz Levin. Dodd said retailers can refuse to buy from manufacturers that can't prove they're in compliance. Dodd, who was chief of staff at the CPSC until last year, represents the National Bulk Vendors Association, whose members sell the small toys dispensed by vending machines at the front of grocery stores.

Not every provision has received the same attention as the lead limit, however. Many have stayed relatively under the radar. The law mandates previously voluntary limits for other materials found in paint on toys, such as arsenic and mercury.

K&L Gates partner Eric Stone, who represents the American Specialty Toy Retailing Association and other trade groups, said such requirements are ones that "some people, to be honest, weren't even aware existed. ... Somebody who might be merrily moving along having their paints and everything tested for lead ... might miss, for example, a requirement like this."

Businesses have inundated the CPSC with requests for clarification of various parts of the law, and this is one area for which the agency does "seek to offer more guidance," Wolfson said. When asked whether the agency will nonetheless enforce limits on materials such as mercury, he reiterated that the "CPSC will enforce all elements of the law where there isn't a stay of enforcement in place."

Language like that is the reason lawyers say clients are asking them to figure out what the agency's priorities really are. After all, if the CPSC has yet to establish clear guidelines for certain materials, then perhaps it isn't quite ready to enforce them. The CPSC, said Mintz Levin's Dodd, has "been scrambling to make sense of this new law, let alone aggressively enforce it."

And even when companies can't comply, lawyers say putting forth a good-faith effort will likely still do some good. "I advise clients that, when they have 10 regulatory requirements...and they don't think they can completely satisfy all of them, that they do something instead of doing nothing," Samuels said. "Try and show that you did what you reasonably could do." That way, if the CPSC does nail the client for noncompliance, the company can demonstrate that it at least tried to follow the law. "It certainly will weigh against you having to pay a penalty," said Samuels.

Though he did not specify what constitutes "a good-faith effort," Wolfson said that whether a corporation can show it tried to obey the rules "is part of what our compliance division will look at" when assessing penalties.

ACTUAL ENFORCEMENT?

The seriousness of the threat of actual enforcement remains an open question. President Barack Obama has promised to revitalize the CPSC. Last month, he nominated a new chairman for the agency, Inez Moore Tenenbaum, as well as a new commissioner, Robert Adler, both of whom have been praised by consumer advocates. Obama said he plans to expand the commission from two to five commissioners later this summer. He also allocated $107 million to the CPSC in his budget, bringing the agency's funding nearly three-quarters of the way to meeting Obama's ultimate goal of doubling it.

"I think we're going to see a lot more enforcement actions in the future, and a lot more progressiveness and push from the CPSC," predicted Samuels.

Not everyone is so confident in the agency. Mary Martha McNamara, a partner at Alexandria, Va.-based McNamara & L'Heureux, which focuses on product safety, didn't hesitate when asked whether she thinks the CPSC can fully enforce the new regulations: "No."

McNamara harkened back to when she worked at the commission in the 1970s or, as she remembered it, "the golden era of the CPSC," when the agency had close to double the staff it has today. Even then, she said, there weren't enough employees or resources "to do all that Congress wanted the agency to do." McNamara represents the Art & Creative Materials Institute, whose member companies are dealing with the new lead limits.

Wolfson said the CPSC "uses its resources as efficiently and effectively as [it] can." He said the agency has staff on the ground at nine major ports in the United States to monitor products imported from overseas. (The United States has about 327 total ports.)

The CPSC, however, is not working alone. A partnership with the Department of Homeland Security has given it access to technology that Wolfson said helps agents at the ports determine which cargo containers to inspect. The Consumer Product Safety Improvement Act also gave state attorneys general new authority to enforce federal consumer products laws.

But lawyers say the most effective enforcers so far have been retailers, many of whom now insist that manufacturers and suppliers provide proof their products are in compliance with the new rules. Said Dodd, "For my client, the Bulk Vendors, if retailers start to say you can't have your 25-cent rings in my shop ... that industry simply goes away." In other words, clients shouldn't stop panicking just yet.

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