Two groups are seeking to overturn a government agency's interpretation that a coming ban on toys and child-care products containing certain phthalates does not apply to products manufactured before that date.
``This decision has imminent and far-reaching consequences,'' said the lawsuit by environmental groups Natural Resources Defense Council and Public Citizen in a Dec. 4 filing in U.S. District Court in New York. ``By permitting [the] sale of banned products after the date of the statutory ban, [the Consumer Product Safety Commission ruling] contradicts Congress' clear command.''
The Consumer Product Safety Improvement Act states that beginning Feb. 10, ``it shall be unlawful for any person to manufacture for sale, offer for sale, distribute in commerce, or import into the United States'' the products affected by the ban, which includes lead.
CPSIA was signed into law in August. However, in mid-November, CPSC general counsel Cheryl Falvey issued a legal opinion saying that toys containing phthalates could continue to be sold after the ban date — if they were manufactured before that day. The ban, she wrote, will only apply to ``those products manufactured after the effective date of the new standard.''
Her opinion was in reply to a letter from Washington-based law firm Arent Fox LLC asking that the ban not be applied retroactively to existing inventory.
Falvey rejected the appeal with regard to lead, she said, because the law identifies lead as a ``banned hazardous substance.''
``With regard to phthalates, Congress created a consumer product safety standard and the clear statement of unambiguous intent to apply that standard retroactively cannot be found,'' she wrote.
However, a Nov. 24 letter to CPSC from Sen. Dianne Feinstein, D-Calif., and author of the initial version of the phthalate ban; Rep. Henry Waxman, D-Calif.; and Rep. Jan Schakowsky, D-Ill., said the commission's decision ``is directly contrary to the plain language of the CPSIA.'' The phthalate ban enacted by Congress applies ``to all inventory sold after Feb. 10, 2009.''
The attorney general of Connecticut is also asking CPSC to reverse its stance.
``If you look at how the lawmakers reacted, it is clear that CPSC has undermined the intent of the congressional ban by allowing banned toys to sit on the same shelves,'' Sarah Janssen, a medical doctor and a scientist in the San Francisco office of NRDC, said in a telephone interview.
``The decision is going to allow the continued sale indefinitely of phthalate-containing toys, because there is no labeling requirement,'' which will make it impossible to distinguish whether a product contains phthalates unless that information is advertised, she said.
``The CPSC decision creates a lot of confusion for [consumers], who expected that once the ban went into effect, they would be able to make safe toy purchases — and that is not going to be the case with phthalates.''
The lawsuit asks the court to issue an injunction ordering CPSC to rescind the decision on the grounds it is contrary to the law as it was written.
The law permanently bans the sale of toys intended for children 12 or younger or child-care articles for children 3 and under when the toys contain more than 0.1 percent of three types of phthalates: di(2-ethylhexyl) phthalate, dibutyl phthalate and butyl benzyl phthalate.
The law also places a temporary ban on any toy or child-care article that contains more than 0.1 percent of three other phthalates — diisononyl phthalate (DINP), diisodecyl phthalate and di-n-octyl phthalate — until a scientific advisory panel review is completed, at which time the ban could be made permanent or lifted. DINP is the phthalate most commonly used as a plasticizer for toys.
Under the law, CPSC has three years to review and keep or lift the temporary ban.
Child-care articles are defined as products intended to facilitate sleep or the feeding of children 3 or younger, or to help them with sucking or teething. The bill further defines mouthing toys as those that can be chewed and sucked and are smaller than 5 centimeters or contain a part smaller than 5 centimeters.
U.S. firms manufacture $1.4 billion of phthalates annually, with less than 5 percent used in children's products. Major retailers Wal-Mart and Toys ``R'' Us have said they will stop carrying toys and child-care products that contain phthalates, beginning Jan. 1.