Last year was a record-setter when it came to recalls and warnings about dangerous children’s toys, especially lead paint laden toys imported from China. In response to the much-publicized controversy, Congress strengthened the Consumer Product Safety Act of 1972 (CPSA) to prohibit the sale and distribution of children’s toy or child care articles containing excessive levels of toxic substances beginning on February 10th, 2009.
Almost incredibly, the agency charged with enforcing the CPSA, the General Counsel of the United States Consumer Product Safety Commission (the Commission), actually tried to weaken the enforcement of the law by issuing an advisory opinion letter that would have permitted the sale of toxic items after February 10, 2009, if the products were manufactured prior to that date.
U.S. District Court Judge Paul G. Gardephe of the Southern District of New York would hear none of that in National Resources Defense Council, Inc. and Public Citizen, Inc. v. U.S. Consumer Product Safety Commission, No. 08 Civ. 10507(PGG) Feb. 5, 2009. On August 14, 2008, Congress enacted the Consumer Product Safety Improvement Act of 2008 (Pub.L. No. 110-314 (HR 4040)) (the CPSIA), which amends the Consumer Product Safety Act of 1972, 15 U.S.C. 2051 et seq. (the CPSA). Sections 108(a) and 108(b)(1) of the CPSIA, made it unlawful to offer for sale … [or] distribute in commerce … any children’s toy or child care article that contains concentrations of more than 0.1 percent of certain chemicals known as phthalates [b]eginning on February 10, 2009. 15 U.S.C. 2057c(a), (b)(1).
Phthalates are a class of chemicals used to soften plastics and are commonly found in children’s toys and other products, including in bath toys, books, teethers, bibs, dolls, plastic figures, and other plastic toys. Phthalates leach steadily from the materials to which they are added, and may be absorbed through the mouth or skin. Phthalates have also been shown to leach from products and bind to dust particles that can be inhaled or ingested.
Scientific studies show that phthalates can have a variety of toxic effects. For example, phthalates interfere with the production of the steroid sex hormones, including testosterone. Interference with reproductive hormones has been associated in males with alterations in the onset of puberty, poor sperm quality, infertility, and testicular cancer. Animal studies indicate that exposure to phthalates in-utero can cause birth defects to genitalia. Animal studies also link certain phthalates to alterations in female sex hormones and pregnancy loss, earlier puberty in girls, and the growth of human breast cancer cells.
The General Counsel of the Commission issued an advisory opinion letter stating that products violative of Sections 108(a) and 108(b)(1) may continue to be sold and distributed in commerce after February 10, 2009, as long as these products were manufactured prior to that date. In the suit, plaintiffs sought a declaration that the opinion letter constitutes agency action not in accordance with law in violation of the [Administrative Procedure Act], 5 U.S.C. 702, 704, and 706(2)(A), and the CPSA, 15 U.S.C. 2057c, as amended by the CPSIA.
The Court agreed with the plaintiffs, holding that the plain language of the phthalate prohibitions makes it unlawful to sell any covered product beginning on February 10, 2009, regardless of when it was manufactured.
The Court noted with suspicion the fact that the opinion letter was prompted by a request for guidance dated just two business days earlier on behalf of several wholesale and retail entities who wished to remain anonymous, asking the Commission to do almost precisely what it did in its opinion letter with respect to phthalates.
The Court remarked, Any agency would be hard-pressed to issue a fully considered opinion in the brief amount of time it took the Commission’s General Counsel to issue the opinion letter here. In other words, the fix was in. The Commission’s interpretation of the phthalate prohibitions received immediate criticism. Four members of Congress who were instrumental in obtaining the passage of the phthalate prohibitions-Senator Barbara Boxer, Senator Dianne Feinstein, Representative Henry A. Waxman and Representative Jan Schakowsky-wrote to the Commission to express their belief that the Commission’s interpretation was contrary to the clear intent of Congress, and to request that the Commission reverse its decision.
The General Counsel’s position on this issue has been repeatedly confirmed by the Commission. On November 18, 2008, for example, the Commission’s Acting Chairman, Nancy Nord, issued a public statement that the phthalate prohibitions would not apply to products manufactured before February 10, 2009. On December 4, 2008, the Commission posted a statement on its website confirming its position that the phthalate prohibitions only appl[y] to products that are manufactured on or after February 10, 2009. Of course, these statements were made while the obviously pro-business Bush Administration was in charge. It is not at all certain that President Obama or his administration would have the same opinion.
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