By Truman Lewis
ConsumerAffairs.com
February 6, 2009
A New York federal judge has ruled that the U.S. Consumer Product Safety Commission (CPSC) must see that toys containing phthalates are removed from stove shelves after a ban takes effect next week.
The Natural Resources Defense Council and Public Citizen filed suit against the CPSC last December, after the commission created a loophole in the congressionally mandated ban that is effective Feb. 10.
The loophole would have allowed retailers to stockpile and continue selling dangerous products as long as they were manufactured before the ban's effective date.
Judge Paul G. Gardephe said the law banning phthalates "provides unequivocally and unambiguously that no covered products may be sold as of Feb. 10, 2009."
"Its the job of the CPSC to protect us from harmful products, yet they have done the exact opposite in this case — creating legal loopholes where they did not exist," said Aaron Colangelo, NRDC attorney. "Theyve strayed from their basic mandate to protect consumers."
Toy manufacturers say the ruling will cost them million hundreds of millions of dollars but consumer advocates said children's health is more important than corporate profits.
"Parents want to know that the toys theyre purchasing are safe — its not too much to ask," said Dr. Sarah Janssen, NRDC scientist. She said the CPSC was "ignoring the will of Congress and threatening our childrens health."
Phthalates are chemicals used to soften plastics in many common consumer products, including childrens toys. The chemicals are known to interfere with production of the hormone testosterone, and have been associated with reproductive abnormalities.
Numerous animal studies have linked prenatal exposure to certain phthalates with decreases in testosterone, malformations of the genitalia, and reduced sperm production.
In response to heightened concern about risks to children from certain harmful phthalates and other chemicals in childrens products, Congress, by an overwhelming majority, passed the Consumer Product Safety Improvement Act (CPSIA), which was signed into law by President Bush on August 14, 2008. This Act permanently bans the sale, after February 10, 2009, of toys and child care products that contain certain phthalates and lead. The final Senate vote for this ban was 89-3, and the final House vote was 424-1.
The law passed in the U.S. 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 childrens toys. Several major retailers have previously announced that, by the end of 2008, they would remove phthalate-containing toys from their stores.
Fast action
The commission — which routinely takes months to respond to even the simplest inquiry from the press and the public — acted quickly when the law firm Arent Fox, on behalf of unidentified corporate clients, asked it to apply the U.S. ban only to the production — and not the sale — of toys with phthalates.
In a legal opinion published only two business days later, on November 17, 2008, the CPSC General Counsel agreed, saying that manufacturers could 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.
"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 Citizens Congress Watch division which, along with NRDC, was heavily involved in lobbying Congress for stronger product safety rules. "Its not only immoral — its illegal. It is horrifying that the federal agency charged with protecting consumers is telling the industry it can dump chemical waste on toy-store shelves."
