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California Attorney General & Consumer Groups Pressure the CPSC

In SGMA's constant efforts to keep the industry informed on the current matters related to the new product safety law, SGMA reports that there are two recent developments related to the phthalates ban: California banning toys and childcare products containing phthalates effective January 1, 2009 and the CPSC being sued over its opinion on the application of the ban.  

The CPSC is facing strong criticism from all sides regarding the November 17 advisory opinion by Cheryl Falvey interpreting the phthalate ban in Section 108 of the CPSIA as applying only to those products manufactured on or after February 10, 2009. 

California to ban phthalates in toys effective January 1, 2009

On December 3, 2008, Jerry Brown, California’s Attorney General, entered the phthalate debate for those doing business in California.  He issued a letter to Falvey declaring that:

1. California’s phthalate restriction embodied in AB 1108 which takes effect January 1, 2009, is not federally preempted and
2. that toys and child care articles containing excessive levels of phthalates cannot be sold or distributed in California after January 1, 2009, no matter when or where they were manufactured.  

In short, there will be retroactive application of the California phthalate ban effective January 1, 2009 and nothing Falvey says to the contrary matters if you are doing business in California.  The Attorney General, and other public enforcers, can and will enforce California’s phthalate ban effective January 1, 2009. 

Brown also addressed the application of Proposition 65 to the phthalate debate concluding that Proposition 65 applies to products regulated by both AB 1108 and the CPSIA, and will continue to do so.  All companies doing business in California must now take a renewed look at Proposition 65, especially if your products contain phthalates, as you are now on notice that Attorney General Brown is doing the same. 

CPSC sued by consumer and environmental groups over phthalate ban implementation

The CPSC was sued on December 4 by two consumer advocacy groups alleging that the CPSC violated the CPSIA and other federal laws with its phthalate decision.  The Natural Resources Defense Council and Public Citizen Inc. filed a lawsuit against the CPSC in U.S. District Court in New York seeking a judgment declaring the CPSC’s most recent decision contrary to the CPSIA, the Administrative Procedure Act, and the original Consumer Product Safety Act, and ordering its rescission.

It is unclear how the CPSC will react to this recent backlash surrounding the phthalate decision.  It is possible that they may in fact reverse course entirely and take the position that Section 108 should be applied retroactively.  It is just impossible to know at this time.  Many groups are very unhappy with the CPSC right now, and will be looking for companies to make an example of in order to prove their point.  Be very careful!  We will keep you updated with any new information.  
 
If you would like to review the lawsuit against the CPSC in its entirety, the case is: Natural Resources Defense Council et al. v. United State Consumer Product Safety Commission, case number 08-cv-10507, in the U.S. District Court for the Southern District of New York.