toys

Court Finds CPSC Is Wrong: CPSIA Phthalate Ban is Retroactive

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.

Are there any toys NOT made in China? Are there any safe toys?

The Los Angeles Times reported on August 31, 2007 that 58% of American consumers are “not at all” or “not too much” confident that Chinese–made products they buy are safe. More compelling is that a study by eBeanstalk found that 30% of moms surveyed said that they will not buy any goods manufactured in China.

Safety standards do exist for toys imported into the U.S. Under federal law, total lead in paints and other coatings used on toys cannot exceed 600 parts per million (ppm) total lead. But, as is clear from the recent recalls, toys with coatings with higher lead concentrations are making their way onto toy shelves.

Also, lead may be present in toys made with polyvinyl chloride (PVC) plastic. Lead is sometimes used as a stabilizer in PVC (without a metallic salt such as lead compounds, PVC would break down and lose its strength). Lead can migrate to the surface and be picked up by children, especially those that engage in mouthing activities (putting their hands or any objects into their mouths).

So, what can a parent do? It is hard to know what to do. You would expect that the toys on the shelves would be safe. But, as is abundantly clear, some of them are not.

Now that holiday season is just around the corner, are there any toys NOT made in China? Yes. There are some options out there. A few are listed here, and I’ll add more. With very limited exceptions, Playmobil of Germany is not manufactured in China. The exceptions – a few electronics part, like the flashing police light. (Although Playmobil did have a recall for lead paint in 1982 with parts made by an American contractor).

Less than 3% of Lego's production comes from China.

What about some other alternatives? For a variety of toys, try ImagiPlay, Nova Natural Toys & Crafts or Natural Pod. For tea sets, sand play sets, and cookware and dining sets, try the bioplastic (yes, they are made of corn!) toys at Green Toys. For wood trains, try Whittle Shortline Railroad advertises itself as using lead free paints. As a bonus, its toy trains are compatible with Thomas™ and Brio©. Oompa toys is a great source for a variety European made toys. The website eBeanstalk advertises that all of its learning toys adhere to or exceed American and European safety standards.

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