Items manufactured before Feb. 10 will be included in a federal ban on phthalates in toys and child-care products that goes into effect on that date, a U.S. District Court in New York has ruled.
The ruling, issued Feb. 5 by Judge Paul Gardephe, said the law banning phthalates and lead ``provides unequivocally and unambiguously that no covered products may be sold as of Feb. 10, 2009.''
``Unless another section of the statute can be read as crafting an express exception for existing inventory, the [Consumer Product Safety Commission] may not interpret the phthalate prohibitions as containing such an exception.''
The CPSC which delayed most of the law's testing rules for a year, in a decision Jan. 30 said it would not appeal the ruling. However, six Republican Senators are trying to reverse the court decision.
Sen. Jim DeMint, R-S.C., introduced an amendment Feb. 5 to the economic stimulus bill designed to delay the phthalates law from going into effect for six months, clarify component testing requirements and exempt resellers. The proposed amendment has the support of the National Association of Manufacturers, the Chamber of Commerce and several groups representing small businesses.
Phthalates are used to soften chemicals and are commonly found in bath toys, teethers and bibs. The six phthalates in question have been banned in the European Union for nearly 10 years, as well as in Argentina, Japan, Israel and Mexico.
The controversy prompted the chairmen and subcommittee chairmen of the Senate and House committees responsible for oversight of CPSC to send a letter Feb. 3 to President Barack Obama, requesting that he ask CPSC's acting chairman, Nancy Nord, to step down.
CPSC had ruled Nov. 17 acting on an appeal from the Washington-based law firm Arent Fox LLC that the phthalates ban did not apply to products made before the effective date of the ban. That interpretation triggered a lawsuit by environmental groups Natural Resources Defense Council and Public Citizen.
``The court understands that Congress spoke plainly and simply that these six [phthalates] will be banned from children's toys and child-care products'' starting Feb. 10, said Brian Wolfman, director of the Public Citizen Litigation Group, in a statement.
The overturned CPSC ruling would have ``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.
``A trip to the toy store shouldn't require a guessing game on which toys contain harmful chemicals and which toys are safe,'' Janssen added in a prepared statement. ``Now shoppers will have peace of mind when they open their wallets.''
Without the ruling, ``a consumer going to the store to buy a teething ring or any other children's product would have no idea if it contains phthalates or not,'' NRDC senior lawyer Aaron Colangelo said in a statement.
The Consumer Product Safety Improvement Act, signed into law in August, 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 any 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 that time the temporary 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.