5th U.S. Circuit Court of Appeals Hands the “Phthalates in Toys” Ruling Back to the CPSC
5TH CIRCUIT COURT OF APPEALS – According to a news brief published on WestLaw.com, the 5th U.S. Circuit Court of Appeals handed certain manufacturing groups a victory when the court ruled that the consumer product safety commission “procedurally erred” when it passed a rule that prohibits children’s toys from containing too much Phthalate esters.
The unanimous three-judge panel of the 5th U.S. Circuit Court of Appeals remanded the U.S. Consumer Product Safety Commission’s ruling that prohibits children’s manufacturing and sale of toys and personal care products that contain concentrations of five types of phthalates that exceed 0.1%. The three-judge panel decided for the plaintiffs, which included the National Association of Manufacturers (“NAM”), that the U.S. Consumer Product Safety Commission (“CPSC”) neglected to allow the public a fair chance to respond to the rulemaking once the agency changed its scientific justification for the rule using a new scientific approach that uses randomly collected data.
Karla Crosswhite-Chigbue, a spokeswoman for the CPSC, stated that the CPSC declined to comment on the ruling. According to Department of Justice spokeswoman Gail Montenegro, the Department of Justice also declined to comment about the 5th circuit ruling.
According to the news brief, NAM and the plaintiffs’ attorneys did not quickly respond to requests for comment.
According to the ruling, Phthalates are a class of chemical compounds. Some phthalates have been shown to suppress testosterone production and negatively affect normal mental and physical development.
Chief U.S. Circuit Judge Priscilla Owen, who wrote the decision for the panel, agreed with the plaintiffs that once the CPSC issued its final ruling in 2017, the agency had failed to carry out the required Administrative Procedure Act’s “notice-and-comment” procedure as required by law.
Chief U.S. Circuit Judge Owen also stated that the CPSC also changed the data that the agency relied upon to justify the new rule and failed to clearly invite comments regarding the agency’s use of the newer type of data to replace the older, “statistically unstable” data.
Chief U.S. Circuit Judge Owen was joined by U.S. Circuit Judges Stephen Higginson and Leslie Southwick in the panel.
Case: Texas Association of Manufacturers v. CPSC, 5th U.S. Circuit Court of Appeals, No. 17-60836.
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