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Issue Date: Vol. 49, No.2, February 2009, Posted On: 2/6/2009

The Phthalates Issue: CPSC Reverses Stance On Existing Inventories

Hank Schlesinger

— A ruling by the U.S. District Court for the Southern District of New York on Feb. 5 has rejected the Consumer Product Safety Commission's early interpretation of the Consumer Product Safety Improvement Act of 2008. A statement issued by the CPSC suggested that existing inventories of products containing phthalates could be sold beyond Feb. 10, 2009.

According to the court's decision, toys and other products intended for children under 12 cannot contain more than 0.1% of six commonly used plastic-softening phthalates, including DEHP, DBP, BBP, DINP, DIDP and DnOPA. Toys not in compliance with the regulations cannot be sold and existing inventories should be destroyed.

In a statement issued immediately following the New York court's decision, the CPSC indicated intent to abide by this ruling, reversing its stance on how the Feb. 10 deadline applied to existing products. The CPSC's early interpretation of the new legislation drew harsh criticism from lawmakers, state attorneys general and consumer advocacy groups, including the National Resources Defense Council Inc. and Public Citizen Inc., which filed suits against the commission.

The issue was further complicated after the CPSC announced that there will be a one-year stay regarding enforcement of certain requirements of the legislation - manufacturers and importers of children's products aren't required to test and provide documentation for products potentially containing phthalates until Feb. 10, 2010, but at the same time are apparently required to meet the lead and phthalates limits, mandatory toy standards and other requirements (see story here). The move is intended to provide limited relief from the testing and certification requirements.

Following the ruling by the district court, key members of Congress wrote to President Obama and asked that CPSC chairwoman Nancy Nord be asked to step down immediately for what they described as "mishandling" of the new product safety law. "The CPSC has been limited by leadership that has philosophically contradicted strengthening and improving this agency for far too long," wrote Sens. Jay Rockefeller (D-WV) and Mark Pryor (D-AK) and Reps. Henry Waxman (D-CA) and Bobby Rush (D-IL).

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