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Have Bulk Vending Products With Phthalates Won Temporary Reprieve?

Posted On: 11/24/2008

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WASHINGTON, DC -- A recent letter from the U.S. Consumer Product Safety Commission's general counsel may spell good news for bulk vending operators and suppliers. Cheryl Falvey's letter, dated November 17, suggested that products containing phthalates, a plastic-softening chemical used in some vendible novelties, might still be sold through bulk vending machines without fear of prosecution, if those products were manufactured prior to February 10, 2009, the effective date of the new CPSC standards.


The letter appears to run counter to a previous interpretation of the Consumer Product Safety Improvement Act, which assumed an immediate ban on phthalates in the same manner as lead.


"...With respect to phthalates, the legal analysis is different [than for lead]," wrote Falvey. "With regard to phthalates, Congress created a consumer product safety standard and the clear statement of unambiguous intent to apply that standard retroactively cannot be found." Therefore, Falvey wrote, the CPSIA's new phthalates standard would apply to "only those products manufactured after the effective date of the new standard."


However, the staff advisory opinion issued by Falvey may not be the final word on the matter. According to the National Bulk Vendors Association, aggressive states' attorneys general may still try to get products removed in attempts to garner publicity or educate the public. The bulk vending association is urging operators to consider the likelihood of such actions in their states.


For instance, both California and Washington instituted bans on phthalates that go into effect on January 1, 2009. These bans supercede the CPSC interpretation issued by Falvey. It seems that despite the Falvey letter, these states will not allow toys they deem unsafe to be "grandfathered" in.


If Falvey's interpretation holds up, operators can temporarily continue to sell items that have phthalates in them without fear of prosecution. But whether or not attorneys general choose to interpret the matter differently remains unknown.


The Consumer Product Safety Improvement Act of 2008 was signed into law by President Bush on August 14, after passing both houses with strong bipartisan support. It expands the CPSCs recall authority and funding. The legislation also formalizes the 600 parts per million lead content limits in children's toys already adopted by the bulk vending industry, and bans six different varieties of phthalate plastic softeners that have been linked to reproductive damage.


Phil Brilliant, NBVA's legislative chair, provides details on how the new law will impact operators and suppliers, here.