The nation's strictest ban on phthalates still is scheduled to go into effect July 1, 2009, in Washington. But what form the ban will take is unclear, after Gov. Christine Gregoire signed the bill but opened the door to significant changes.
Gregoire vetoed two sections of the law, and said she will set up an advisory group to modify some remaining provisions and time lines.
The bill bans the sale and manufacture of children's products, toys, cosmetics and jewelry intended for children under 12 that contain more than 1,000 parts per million of six types of phthalates. It also places a 90-ppm limit on lead and a 40-ppm cap on cadmium. Phthalates are plasticizers used to soften PVC.
But the governor axed a mandate that the state Department of Ecology develop regulations for other chemicals posing potential high risk to children. By doing so, she effectively eliminated mandatory reporting requirements that industry had labeled as onerous.
``The governor recognizes that this bill is flawed and has significant problems,'' said Grant Nelson, government affairs director for the Olympia, Wash.-based Association of Washington Business, which is the state's chamber of commerce. He suggested that the only reason the governor did not veto the measure was that ``she found herself in a political dilemma.''
``This issue is like voting against upgrading the brakes on the school bus,'' Nelson said in a telephone interview. ``It is political suicide to do that if you want to get re-elected. But now she has to go back and retroactively fix it.''
Nelson said his conversations with the governor and the language of her letter open the door to shrinking the scope of the bill from products intended for children under 12 to products intended for children under 3, paralleling the California bill that goes into effect this July 1.
``I think the governor's ultimate desire is to mirror what is going on at the California state level, or what the European Union is doing,'' Nelson said. The EU ban is restricted to mouthing toys that are about 2 inches or less on each side.
In an April 1 letter to the Legislature, Gregoire wrote that she removed a 2010 deadline to begin mandatory reporting.
``This will give us time to review the extent of reporting ... and determine whether or not proprietary information should be reported,'' she said. In addition, Gregoire made it clear revisions are needed.
``I will establish an advisory group ... to make sure we implement the bill with common sense and to work on needed legislative fixes for next session,'' she said in her letter. She also directed the Ecology Department to conduct expedited rule-making this year to make it clear that the law does not apply to internal electronic components of toys. That provision could have banned many educational and interactive games and computer software, according to opponents.
``I am encouraged,'' said Marian Stanley, manager of the Phthalate Esters Panel for the American Chemistry Council in Arlington, Va. ``It gives the industry an opportunity to get a more reasonable bill - if they are serious about this.''
Stanley said now that the reporting mandate has been effectively nullified, the most troublesome provision is that the Washington law applies to all products for children under 12.
``That covers a multitude of things such as backpacks, raincoats and screen printing for T-shirts,'' she said. ``This bill is so far-reaching and so onerous. I don't think we have seen how it is going to play out. My sense is that they are going to have a devil of a time coming up with something reasonable to pare it down.''
Scott Hendrick, a policy analyst in the Denver office of the National Conference of State Legislatures, agreed. ``This issue hasn't been settled. There is a law in the books, but how it is enforced and how it will be interpreted is still to be determined.''
Gregoire said the advisory group she will form will include retailers, children's health experts, public interest groups and large and small toymakers. In her letter, she charged the group with making sure the bill does not reduce the safety of car seats for children and with looking at standards for both the ``outside surface of toys and the inside of toys.'' The group will develop recommendations, time lines and additional legislative proposals that are ``practical and achievable.''
Even if the industry succeeds in further paring back the Washington phthalates ban, it faces standards being imposed by nationwide retailers, legislative battles in 12 other states, and a proposed federal ban that was attached to the still-pending budget proposed by the Senate for the Consumer Product Safety Commission. Of those bills, the proposals in Minnesota and Vermont have the strongest support, Stanley said.
That flurry of legislation has the industry pondering whether federal standards for toy safety and for limits on amounts of lead, cadmium and phthalates in children's products might be a better alternative so that manufacturers, retailers and distributors would not have to comply with multiple standards.
``We can't afford to deal with an impractical standard that sets something different for Washington state,'' Nelson said. He said the state represents a market that is just 2 percent of toy sales, which would make testing to meet a unique set of standards ``impractical.''
Toy maker Mattel Inc. has said that 50 percent of the toys made by its Fisher-Price business unit could not be sold in Washington if the lead limits are not changed.
The Toy Industry Association also has voiced its support for federal legislative efforts to strengthen toy safety laws, saying that a ``comprehensive, unified set of regulations'' is the best approach.
``I am hearing more and more folks say there should be a federal standard,'' said Stanley, adding that the Consumer Product Safety Commission would be the logical choice to oversee that standard. ``But they didn't stop lead from coming into the country and they have no credibility with a lot of people'' - which is why states are stepping forward.
That is precisely why Gregoire said she signed the Washington bill, despite her reservations. ``Our federal government ... should set safe standards for children's products sold across the United States,'' she said. ``However, the recalls from last year made it clear. We can't wait any longer for the federal government to take action.''