Lawsuit Filed to Close Toxic Toys Loophole

The Natural Resources Defense Council and Public Citizen filed the suit against the Consumer Product Safety Commission in federal court in New York seeking to overturn a legal decision by the commission that allows retailers to stockpile and continue selling the banned products as long as they were manufactured before the ban date of February 10, 2009.

The lawsuit is intended to protect children from harmful exposure to plastics softeners called phthalates in toys and prevent consumer confusion about whether toys on store shelves contain phthalates or not, say the plaintiff groups.

"The Consumer Product Safety Commission is ignoring the will of Congress and threatening our children's health," said Dr. Sarah Janssen, an NRDC scientist.

"Overwhelming evidence led Congress to ban these toys, a ban that some retailers have already started to adopt," she said. "The CPSC decision completely undermines those efforts by allowing banned toys to sit on the same shelves as the safe ones."

In response to concern about risks to children from phthalates and lead in children's products, Congress, by an overwhelming majority, passed the Consumer Product Safety Improvement Act. The Senate voted 89-3 for the ban, and the final House vote was 424-1. The bill was signed into law by President George W. Bush on August 14, 2008.

In a letter dated November 13, 2008, the law firm Arent Fox, on behalf of clients identified only as "several wholesale and retail entities," asked the Consumer Product Safety Commission to only apply the U.S. ban to the production - and not sale - of toys with phthalates and lead.

In a legal opinion published on November 17, 2008, the CPSC General Counsel Cheryl Falvey denied the law firm's request for a delay of the ban on toys containing lead but agreed that toys containing phthalates could continue to be sold after the ban date of February 10, 2009 if they were manufactured before that date.

Arent Fox argued that its clients would suffer millions of dollars worth of economic hardship, especially in these difficult economic times, if they could not sell the toys containing lead and phthalates that have already been manufactured.

In her reply, Falvey noted that the Consumer Product Safety Improvement Act identified lead as a "banned hazardous substance" under the Federal Hazardous Substances Act.

But the CPSC lawyer said the new law treats phthalates differently, as "consumer product safety standard" rather than as a hazardous substance.

As a result, manufacturers can stockpile toys and child care products with the banned phthalates right up to the date of the ban, and then sell them to consumers long after the ban was supposed to go into effect.

Soft plastic toys can contain phthlates. (Photo by Cecilia Case)

"Parents want to know that the toys they're purchasing are safe - it's not too much to ask," Janssen said. "We can't allow CPSC to continue this confusion at the checkout aisle."

Phthalates are chemicals used to soften plastics in many common consumer products, including children's toys. The chemicals can leach out of the toys when they are sucked or chewed. These chemicals are known to interfere with production of the hormone testosterone, and have been associated with reproductive abnormalities.

Numerous animal studies have linked even prenatal exposure to certain phthalates with decreases in testosterone, malformations of the genitalia, and reduced sperm production.

"Selling millions of toxic toys to kids is not the way to dispose of them, as the law clearly states," said David Arkush, director of Public Citizen's Congress Watch division, which, along with NRDC, lobbied Congress for stronger product safety rules.

"It's not only immoral - it's illegal," Arkush said. "It is horrifying that the federal agency charged with protecting consumers is telling the industry it can dump chemical waste on toy-store shelves."

Falvey states in her reply to Arent Fox that, "The views expressed in this letter are those of the General Counsel and have not been reviewed or approved by the Commission. They are based on the best available information at the time they were written. They may be superceded at any time by the Commission or by operation of law."

The law passed in the United States bans the same six phthalates that have been banned in European toys for nearly 10 years. Other countries, including Argentina, Japan, Israel and Mexico have also banned phthalates from children's toys.

Several major retailers have previously announced that they would remove phthalate-containing toys from their stores by the end of this year.

Copyright Environment News Service (ENS) 2008. All rights reserved.