Well, it is going to be difficult over the next week for retailers and manufacturers.
The United States District Court for the Southern District of New York has sided with plaintiffs National Resources Defense Council (NRDC) and Public Citizen, Inc., in their suit against the Consumer Product Safety Commission (CPSC), ruling that the Consumer Producct Safety Improvement Act’s phthalate ban is indeed retroactive. Yes, that’s right, with 4 days to go before the looming deadline, the CPSC’s General Counsel’s opinion that the phthalate ban did not apply to existing inventory has been thrown out by the Court.
To catch you up, on February 10, 2009, in addition to the lead content limit for children’s products, a ban for certain phthalates goes into effect for toys and child care articles. The term “toys” may be self evident, but the term “child care articles” means those items intended for children under the age of 3 that facilitate sleeping or eating.
So, the CPSIA provide that as of February 10, 2009, certain phthalates are banned in toys and child care articles. The question was whether that ban applied to existing inventory – items already manufactured. An opinion from the CPSC’s General Counsel had determined that while the lead content limit was retroactive, the phthalate ban was not. That is, that the limit of 1,000 ppm for the 6 phthalates only applied to products manufactured after 2/10/09. Everybody has been operating based upon that premise.
The NRDC and Public Citizen, Inc., challenged that decision by the CPSC’s General Counsel in court. And the Court agreed with the NRDC and Public Citizen, and strongly disagreed with the CPSC’s position. I won’t bore you with the details, but the Court slams the CPSC and its General Counsel, finding that the General Counsel’s opinion was entitled to no deference. Which is interesting because usually courts defer to agency interpretations. Okay, well perhaps that is only interesting to a lawyer.
But, in sum, the Court granted the plaintiffs’ summary judgment motion, and ordered the CPSC’s decision that the phthalate prohibition is not retroactive set aside. (In fact, it is no longer available on the CPSC’s website.)
What does this mean? As of right now, the phthalate ban will apply to existing inventory on February 10, 2009. So toys and child care articles cannot contain DEHP, DBP or BBP in excess of 1,000 ppm. And DINP, DIDP and DnOP cannot be in excess of 1,000 ppm in toys and child care articles that can be placed in a child’s mouth or brought to the mouth and kept in the mouth so as to be sucked or chewed.