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CPSC Decision to Delay Phthalate, Lead Rules Overturned

Feb 6, 2009 | Parker Waichman LLP

Small businesses have been fighting to have a chemical and toxin ban created to protect America’s children overturned.  While consumer groups and environmentalists are pushing for the phthalate and lead bans, small businesses have been fighting to keep it off the books, said the LA Times.  As we reported earlier, the Consumer Products Safety Commission (CPSC)  had bowed to the pressure, and had announced it would delay the new rule for a year. But a federal judge has overturned the CPSC decision and ruled that manufacturers and retailers are prohibited from selling children’s items containing phthalates and certain lead levels after Tuesday.

Industry claimed that "Compliance with these new lead content requirements will be a practical impossibility for thousands of manufacturers, distributors, retailers and resellers," according to a letter from the National Association of Manufacturers reported the LA Times.

Meanwhile, the CPSC announced last week that it is delaying one of its requirements under the recently passed Consumer Product Safety Improvement Act, which is scheduled to go into effect on Tuesday, February 10th.  The requirement that children’s products—toys, books, clothes, and jewelry—be tested for lead and phthalates, one of the rules under the ban, has been delayed to 2010, reported Market Watch.  The move, while considered a boon for toy manufacturers, is of concern to environmentalists and consumer advocacy groups because of the potentially toxic impact to children.

At the same time, the National Resources Defense Council and consumer group Public Citizen sued to reverse the CPSC's decision to delay implementing the rule.  An attorney with the Council pointed out that if the ruling was not put in place, "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," quoted the LA Times.  An attorney for the Council noted that postponement was in violation of the law and would also "perpetuate harm through children's exposure to lead."

On another front, Senator Jim DeMint (Republican-South Carolina), in collaboration with five other Republican senators, introduced an amendment—which was backed by small business groups and the U.S. Chamber of Commerce—to the economic stimulus bill, said the LA Times.  The amendment sought to make changes to the Act, such as delaying its regulations by six months, exempting resellers, and preventing retroactive enforcement, to name a few.

As of today, the law—which will be effective on Tuesay—states that children’s products containing more than 600 parts per million (ppm) of total lead cannot be legally sold in the U.S.  Effective in August, the allowable lead amount in such products drops by half to 300 ppm.  Also, six types of phthalates are included in the ban, three permanently and three pending additional research.  And, when the delayed testing requirement becomes effective next year, manufacturers, importers, and retailers will be required to provide and maintain certification proving that their products were tested and are incompliance with the new law, said USA Today.

In response to all of the controversy regarding the law, four key Congressional members wrote to President Obama this week requesting that he ask the CPSC’s acting Chairwoman, Nancy Nord, to immediately step down over what they described as Nord’s mishandling of the law’s implementation, reported USA Today.  Nord is a Bush appointee.


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